text:
    Don Milliman et al., Appellees, v. Joy Seed et al., Appellants.
    1. Banks and banking, § 21

      —what is effect of transfer of shares of stock to other partners on liability to creditors. On a bill to dissolve a banking copartnership which had issued shares of stock, for the appointment of a receiver, for an accounting and to enjoin creditors from prosecuting suits, etc., where by supplemental bill it was alleged that a bill praying for substantially the same relief which had been brought in another county had by agreement been abandoned, and that it had been further agreed that all matters should be determined in the original bill in question, and certain of the defendants in their answers claimed that when they transferred their stock the corporation was solvent, and it further appeared that only ten per cent, of the par value of the shares of stock had been paid in by the stockholders, and a decree was entered directing that all of the original stockholders pay to the receiver the remaining ninety per cent, of the stock issued to them, including costs of suit and $1,000 solicitor’s fees to complainants’ solicitors, held that certain defendants were not released from their liability to creditors by reason of the transfer of their stock, to other members, and that the provision of the decree providing that defendants, together with others, should pay the remaining ninety per cent, in accordance with the number of shares of stock held by them was equitable and divided the liability in just proportion.
    2. Banks and banking, § 60

      —when solicitor's fees are properly allowed, out of funds derived from unpaid portion of stock and paid into court. On a bill for the dissolution of a banking copartnership which had issued shares of stock, the appointment of a receiver, an accounting, etc., where a decree was entered directing the stockholders to pay to the receiver the unpaid portion of their stock, the costs of suit and. $1,000 as the fee of complainants’ solicitor, and defendants complained of the allowance of said fee, held that as it was necessary for complainants to employ a solicitor to procure an accounting and bring a fund into court for distribution, and as such action was brought about to the common benefit of all copartners, it was but equitable that the expenses of .the .suit, including the solicitor’s fees, should be made a charge upon and paid out of the fund.
    3. Appeal and ebrob—when failure to give required notice of suing out of record is immaterial. In the case of an appeal from a chancery proceeding, where the giving of only one day’s notice by appellants of the suing out of the record was complained of, and where it was contended that the provision of section 81 of the Practice Act (J. & A. K 8618), requiring that five days’ notice be given, was mandatory, held that the object of such provision was to give appellees or defendants in error the opportunity to file a prwcipe for any other portions of the record they might deem necessary, and as the entire record was brought up by appellants, the appellee was not injured and the failure to give notice for the requisite length of time was not material.
    Boggs, J., dissenting.
    Appeal from the Circuit Court of Richland county; the Hon. Charles H. Miller, Judge, presiding. Heard in' this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    George W. Lackey, for appellants.
    S. J. Gee, for appellees.

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

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

   Mr. Justice Higbee

delivered the .opinion of the court.

Don Milliman and others filed a bill in chancery tr the July term, 1916, of the Circuit Court of Richland county, against Joy Seed, J. W. Grissom, O. P. Harris and others, in which it was charged that complainant", and defendants did on the 19th day of February, 1910, begin the banking business at West Liberty, Illinois, under the firm name of “Bank of West Liberty” as a copartnership, with a capital stock of $25,000, paid under a written agreement entered into shortly prior to that time; that the copartnership conducted a banking business from said time until March 30,1916, when the bank closed; that said bank is insolvent and has liabilities over and above its collectible resources of about the sum of $11,000; that a number of depositors have brought suit for the amount due them; that about three hundred other depositors are threatening suit and other litigation is threatened, all of which will cause a great waste of funds; that a number of the original copartners have claimed to transfer their interest in said copartnership to other copartners; that there are two hundred and fifty shares of said copartnership and the copartners have paid in ten per cent, of the amount of the capital stock, or $2,500; that by reason of the closing of the bank and the bringing of the suits aforesaid, it is necessary to dissolve the co-partnership, to have a receiver appointed, to have an accounting made and that the creditors be enjoined from prosecuting suits, etc.

A supplemental bill was subsequently filed stating that, unknown to complainants, certain parties who were made defendants to the original bill had filed a bill of complaint in the Circuit Court of Lawrence county, Illinois, seeking substantially the same relief; that under the original bill of complaint, a receiver had been appointed and qualified and had taken possession of a large amount of property belonging to said bank; that an agreement had been reached by which the bill filed in Lawrence county should be abandoned and all matters determined under the original bill filed in the Circuit Court of Richland county. The agreement referred to, and which was made a part of the original bill, shows the list of persons who agreed to take shares of stock in the bank and the number of shares subscribed by each; that the par value of each share was to be $100; that an assessment of ten per cent, should be paid for the purpose of carrying on the business and no further assessment made except by the concurrence of seventy-five per cent, of the stockholders; that no member of the copartnership should sell or dispose of his interest except to some other member of said copartnership; that the sale of the interest of any one or more of the members should not work a dissolution of said copartnership; .that the articles of agreement should not be abrogated or the copartnership dissolved, except by a two-thirds vote of all the members thereof.

Defendants J. W. Grissom and O. P. Harris filed a joint and separate answer admitting the formation of the copartnership named and most of the other material allegations of the bill, but denying that the co-partnership is insolvent. Said J. W. Grissom admitted by his answer that he was an original subscriber for stock in the bank and signed the articles of agreement; that stock certificate No. 4 for twenty shares of stock was issued to him February 19, 1910; that after-wards on June 25, 1910, he transferred said shares of stock to H. R. Field, another stockholder, according to the terms and agreements of said copartnership. Said defendant O. P. Harris averred that he never signed the original articles of copartnership but that on February 22, 1910, five shares of stock were issued to him which he afterwards, on February 16, 1911, transferred to one Herman Steffens, one of the original co-partners. Said defendants further averred that at the time they respectively transferred their stock the said copartnership was solvent and has ever since remained solvent; that since the transfer of said shares they have had no part or interest in said copartnership and never received any profits therefrom and have not taken any part in any of the business conducted by said copartnership; that since such transfer their names have not been used with their knowledge or consent as members of said copartnership. Replication in the usual form was filed to said answer.

Tihe proof showed the facts to be substantially as set forth in the original and supplemental bills. The ten per cent, of the capital contributed by the original subscribers, in accordance with the terms of the agreement, appears to have been used up in procuring a banking building, purchasing the necessary fixtures and other expenses attending the opening of the bank. Deposits were received by the bank and upon this the banking business was conducted and for a time dividends paid upon the amount paid in by the share holders. Business troubles subsequently arose, however, and on March 30, 1916, the cashier closed the doors of the bank and absconded, leaving about $50 in cash and a considerable amount of paper, some of which was of questionable value. Suits were brought by creditors and others threatened in Lawrence county and in Richland county, but an agreement was reached by which the rights of all the parties should be determined upon the original and supplemental bills above referred to filed in Richland county. Upon the hearing the chancellor entered a decree substantially sustaining the allegations of the original and supplemental bills and finding, among other things, that J. W. Grissom and O. P. Harris had attempted to .transfer their stock but that no notice of said transfer was given to the directors or depositors of said bank; that the transfer of stock aforesaid by said copartners was not made in the manner provided in the articles of agreement and that there was no legal transfer of said shares of stock which abrogated the copartnership agreement. A decree was entered directing, among other things, that the original stockholders pay to the receiver the remaining ninety per cent, of the stock issued to them and the costs of suit, including $1,000 solicitor’s fee, to the solicitor for complainants. From that decree the said J. W. Grissom and O. P. Harris have prayed an appeal to this court.

The principal question presented for our consideration by this appeal is whether or not the fact that appellants sold and assigned their shares to other members of the banking association relieved them from all further liability for the debts of the concern. It is undisputed that appellant Grissom was a signer to the original articles of agreement and took twenty shares of stock on February 19, 1910, which he sold to H. B. Field, who was one of the original stockholders, on June 28, 1910; that appellant Harris bought five shares of stock about March 1,1910, for which he paid the full par value, and sold the same to H. P. Steffens, who was one of the original signers of the articles of copartnership and an original stockholder, on February 16, 1911; that said Harris was one of the promoters of the bank but did not sign the original articles of agreement; that neither of appellants took any part in the management of the business after the sale of his stock; that appellant Grissom never received any dividends whatever and that appellant Harris received the first year’s dividends only; that after the assignment of their stock, the assignees of appellants voted such stock at the meetings and received such dividends as were paid thereon; that no notice was given by appellants to the creditors of the bank to their associates or to the public in general of their withdrawal from the copartnership or the assignment of their shares to other parties. The only provisions contained in the articles of copartnership in reference to the sale of an interest therein are articles No. 7, 8 and 9, which provide that no member of the copartnership could sell his interest except to some other member thereof; that the sale of any interest or death of one of the members should not work a dissolution of the copartnership; and that the sale of the interest of any one or more of the members should not work a dissolution of the copartnership. Where a number of persons become members of an unincorporated or joint stock association, by entering into articles of agreement, for the carrying on of a banking business, they become partners and each member is liable for the debts of the association unless he has shifted his responsibility in the mode provided for in the articles of association, and when the articles of association provide a special method for the transfer of shares, that method must be followed. Wadsworth v. Duncan, 164 Ill. 360; Chicago Trust & Savings Bank v. Kinnare, 174 Ill. 358. As a general rule a member of a copartnership cannot escape liability unless he gives notice of his retirement from the firm to those who have actually done business with the copartnership, and a general public notice in a newspaper of the neighborhood to all those who may in the future deal with the same. Ellis’ Adm’rs v. Bronson, 40 Ill. 455; Arnold v. Hart, 176 Ill. 442.

It was also held in Arnold v. Hart, supra, that a depositor is presumed in law to have relied upon the financial ability and integrity of each ostensible partner in a banking firm, at the time he began business relations with such firm, and as to him the original partnership continues until he has knowledge or notice of a change in the same; he may hold the original partners for deposits made after a change in the firm of which he' has no knowledge or notice. In Hossack v. Ottawa Development Ass’n, 244 Ill. 274, the following language is used concerning the question here under consideration: “The legal status of unincorporated societies and voluntary associations has not been very satisfactorily determined on many points. While the courts will generally treat the members as ordinaiy partners and the associations as partnerships, they will, as far as possible, give effect to the articles of association or agreement among the members themselves, when they themselves are the only ones interested. If such an association be organized for pecuniary profit, so far as the rights of third persons and liabilities of the members to strangers are concerned, such association is usually considered as a partnership.” Under the law as laid down by the above authorities and the proofs in this case, it appears to us clear that appellants were not released from their liabilities to creditors by reason of the transfer of their stock. The decree of the court provided that they together with the others should pay-in accordance with the number of shares of stock held by them in the association, that is, that each should pay the remaining ninety per cent, of the original stock so held which had never been paid into the concern. This order was entirely equitable and divided the liabilities in just proportion among the parties interested in the association. The court further ordered in the decree that any original stockholder who may have transferred his stock at a subsequent time should have reserved to him the right of action against his transferee, for the amount which he should, by order of the court, be required to pay. But that question does not concern us on this appeal.

Appellants further complain of the decree of the court below in that it provided that a solicitor’s fee of $1,000 be paid to S. J. Gee, solicitor for appellee, by the receiver, out of the assets coming into his hands. The rule is laid down- in 3 Amer. & Eng. Encyc. of Law (2nd Ed.) 458, that: “Where a fund is brought into a court of equity through the services of an attorney, who looks to that alone for his compensation, although his interest cannot technically be called a lien, he is regarded as the equitable, owner of the fund to the extent of the reasonable value of his services, and the court administering the fund will intervene for his protection, and award him a reasonable compensation to be paid out of it. * * * It must always appear that the services of the attorney operated to secure or collect the fund out of which he claims to be paid.” Upon the same subject, it is said in 4 Cyc. 1013: “While there is, strictly speaking, no lien on any fund which is within the custody or control of the court, the court may award attorney’s fees out of the fund.” The same construction is given to the law upon this subject in 6 Corpus Juris, 782. In the case of Abend v. Endowment Fund Commission of McKendree College, 174 Ill. 96, where solicitors’ fees had been allowed out of a trust fund, it is said: “A trust may be lawfully required to bear the necessary expenses of its own preservation. The claim to this fund set up and pressed by appellant made the services of solicitors necessary to the preservation of any part of it to its proper use, and the allowance of reasonable solicitors’ fees, to be paid out of the fund, under such circumstances is neither error nor a diversion of the fund.” In this case it was necessary for appellees to employ a solicitor to procure an accounting and bring a fund into court for distribution. This object was brought about to the common benefit of all copartners, and it is but equitable that the expenses of the suit, including solicitors’ fees, should be made a charge upon and paid out of the fund.

Appellees suggest in their brief that only one day’s notice was given by appellants of the suing out of the record in this case, whereas section 81 of the Practice Act (J. & A. ¶ 8618) requires that five days’ notice shall be given and insists that this provision is mandatory. Upon this subject our Supreme Court in People v. Union Gas & Electric Co., 258 HI. 193, says: “We agree with appellee that the statute imposes a duty on parties intending to take an appeal or prosecute a writ of error to give the required notice, but we do not agree that the giving of such notice is an indispensable prerequisite to the right to have the record reviewed. The object of the Legislature is clearly expressed in the statute above quoted. It was intended to give the appellee or defendant in error information as to the particular portions of the record that the appellant or plaintiff in error intended to bring up, in order that appellee or defendant in error might, if he saw proper, file an additional praecipe for any other portions of the record that he might deem necessary to a full presentation of the errors assigned by appellant or as a basis for any cross-errors that he might desire to assign. If appellant brings up the entire record the failure to give notice can work no injury to appellee, and this court has held that where the complete record is brought up, the failure to give the notice is a matter of no serious importance.” In this case notice was in fact given, though not for the required length of time, and the entire record appears to have been brought up so appellee was not in any way injured, and the failure to give notice for the requisite length of time cannot be considered material.

The decree of the court below will be affirmed.

Affirmed.

Mr. Justice Boggs dissenting.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    M. E. Thorne, Appellee, v. Southern Illinois Railway & Power Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 421

      —when value of property need not be established by expert testimony. In an action by the' owner of lots against a railroad company to recover damages sustained by the construction and operation of the railroad of the defendant in front of said lots, where the principal damage claimed was that occasioned by excavation in the street, and it was claimed that plaintiff’s witnesses were not sufficiently acquainted with the value of property in the community in question to qualify them to testify, held that the value of property in such cases need not be established by persons engaged in buying and selling real estate, and as the evidence disclosed that the witnesses had some knowledge of the value of the property and were in some degree qualified, the extent of their knowledge was a matter affecting their credibility and the weight to be given to their testimony.

      Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by M. E. Thorne, plaintiff, against the Southern Illinois Railway & Power Company, defendant, to recover for damage alleged to have been sustained by plaintiff to her property in the construction and operation of defendant’s railroad. From a’ judgment for plaintiff for $50, defendant appeals.
    Whitley & Combe, for appellant; Marsh, Stilwell & Finney, of counsel.
    A. E. Somers, for appellee; George M. Miley, of counsel.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

2. Appeal and ebbob, § 1540*—when reference to declaration in instruction is harmless. While the practice of referring to the declaration in an instruction has frequently been criticised, such reference does not constitute reversible error.

3. Appeal and error, § 1561*—when refusal of instruction is harmless error. It is not reversible error to refuse an instruction which might properly have been given, where such instruction is substantially covered by other given instructions.

4. Railroads, § 224*—when instruction in action to recover for injury to lots due to excavations in construction of railroad is not erroneous. Where, in an action to recover for damage to lots caused principally by excavations in connection with the construction and maintenance of a railroad in front of said lots, an instruction was complained of on the ground of raising an issue as to whether plaintiff’s “legal right” of ingress or egress, as distinguished from her means of egress and ingress, had been damaged, held that the instruction was not susceptible of such technical construction, especially when considered in connection with the facts in proof and the other instructions.

5. Instructions, § 87*—when instruction on degree of proof is not erroneous. Where an instruction read as a whole correctly states the law as to the degree of proof required, the fact that portions of it read alone may be open to the objection that the instruction did not require the jury to find the facts therein stated by a preponderance of the evidence, does not render the instruction erroneous.

6. Railroads, § 224*—when refusal of instruction on determination of damage to property due to construction of railroad is proper. In an action to recover for damage to lots caused principally by excavations in connection with the construction and maintenance of a railroad in front of the lots, where the defendant complained of the refusal of an instruction telling the jury that any damage to plaintiff’s premises .must be considered as a damage to her property as a whole, and that an inconvenience of ingress and egress to a portion of the premises was not necessarily a damage to the whole of the premises, held that while such statement as an abstract proposition of law had been approved, it was not error to refuse the instruction, for the reason that the property involved was small in area, and all of it was used as one residence property, and therefore a damage to any part would almost necessarily be a damage to the whole.

7. IrrsTBTJCTioNS, § 159*—consideration as a series. Instructions must be considered as a series and not singly, and therefore, although instructions in a case may not in every respect be formal and accurate, yet if taken as a whole they fully and fairly advise the jury of the law applicable to the facts in proof, no reason for a reversal will be afforded.


text:
    Anthony Bohm, Appellee, v. Hunter Dalton, Appellant.
    (Not to be reported in full.)
    Abstract of the Dedision.
    1. Automobiles and garages, § 3

      —when evidence sufficient to show exercise of due care of pedestrian struck by automobile. In an action by a pedestrian to recover for personal injuries sustained by being struck by defendant’s automobile while plaintiff was crossing at an intersection of public streets, where plaintiff claimed that he looked before crossing and neither heard nor saw the automobile, and where others who were at the crossing at the same time as plaintiff, and some of whom were waiting for a street car, testifled that they heard no warning and that the first they knew or saw of the automobile was when some one “hollered,” and that then they jumped to get out of the way, and where the testimony as to speed and warning was contradictory, held that the proof justified a finding that at the time of the accident plaintiff was exercising due care for his own safety.

      Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    • Action by Anthony Bohm, plaintiff, against Hunter Dalton, defendant, to recover damages for personal injuries sustained as the result of being struck by an automobile operated by defendant. From a judgment for plaintiff for $1,546.50, defendant appeals.
    Harold J. Bandy, for appellant.
    Warnock, Williamson & Burroughs, for appellee.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

2. Negligence, § 198*-—when failure to look and listen raises question for jury. The failure to look and listen cannot be said to be negligence per se under all circumstances, and whether a person is at fault in failing to look and listen is a question of fact to be submitted to the jury and shown by proof of the circumstances surrounding each particular case.

3. Appeal and ebbob, § 1713*—when errors deemed waived. Errors assigned as grounds for reversal which are not mentioned in the brief and argument will be deemed to have been waived and will not be considered by the court.

4. Automobiles and gabages, § 1*—when motor car may not he run at greatest speed limited hy law. A law prohibiting the running of a motor car at a greater speed than ten miles per hour through the closely built up business portion of a city or incorporated village is not a license or permission to run such vehicle at that rate of speed, if that rate is unreasonable under the circumstances of the particular case. ’

5. Continuance—when denial of on ground of illness of party while testifying is not error. The denial of a continuance in a personal injury case on the ground that plaintiff fainted or became sick on the witness stand, held not error where there was no contention that such illness was feigned or within the control of plaintiff, and where the court in an instruction warned the jury not to consider the occurrence.

6. Automobiles and gabages, § 3 —when instruction in language of speed statute is not erroneous. The giving of an instruction substantially in the language of the statute regulating the speed of motor vehicles upon public highways is not error.


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    J. E. Lee, Appellant, v. City of Venice, Appellee.
    1. Municipal corporations, § 122

      —when mayor acting as president of hoard of local improvements is not entitled to extra compensation. In an action by a city against its former mayor to recover the amount paid to him for service as president of the board of local improvements over and above his salary as mayor, where it appeared that during the entire term of such mayor an ordinance was in force constituting the mayor and certain aider-men such board, and providing that such mayor by virtue of his office should be president of said board and making no provision for salary or compensation to either the president or other members; that the salary so paid to said mayor as such president was fixed by resolution of the city council, and that defendant devoted considerable of his time during his two terms to local improvement work, held that as the defendant was by virtue of his office as mayor of the city, which had a population of less than 50,000, president of the board of local improvements, the duties imposed upon him were simply additional duties and part of the duties of his office, and therefore his salary as mayor was the only compensation which could legally be allowed him.
    2. Municipal corporations, § 124*—when salary of officer may not he increased during term. The salary of a city officer cannot be changed during his term of office, even though the compensation provided may, as a matter of fact, be inadequate; neither does the, imposition of additional duties upon such officer authorize an increase in his compensation during such term.
    3. Municipal corporations, § 124*—necessity of ordinance fixing additional allowance for services to officer. In an action by a city against its former mayor to recover the amount paid to him for services as president of the board of local improvements over and above his salary as mayor, where it appeared that during the entire term of such mayor an ordinance was in force constituting the mayor and certain alderman such board, and providing that such mayor, by virtue of his office, should be president of said board, and making no provision for salary or compensation to either the president or other members; that the salary so paid to said mayor as such president was fixed by resolution of the city council, and that the defendant devoted considerable of his time during his two. terms, to local improvement work, held that in any event the additional allowance was illegal, as the same was not fixed by ordinance but by a resolution.

      4. Municipal corporations, § 69

      —when ordinance necessary. Where the law or charter of a city requires an act to be done by ordinance, a resolution is not sufficient, but an ordinance is necessary.
    5. Municipal corporations—when city itself may maintain action to recover excess compensation paid to mayor. In an action by a city against its former mayor to recover the amount paid to him for services as president of the board of local improvements over and above his salary as mayor, where it appeared that during the entire term of such mayor an ordinance was in force constituting the mayor and certain alderman such board, and providing that such mayor, by virtue of his office, should be president of said board, and making no provision for salary or compensation to either the president or other members; that the salary so paid to said mayor as such president was fixed by resolution of the city council, and that defendant devoted considerable of his time during his two terms to local improvement work, defendant contended that, even though the allowance was illegal, the same could not be recovered by the city, on the ground that the amount paid the defendant was so paid out of an assessment and was therefore recoverable by taxpayers only, held that as the money was paid on city warrants drawn against funds in the city treasury, it belonged to the city and therefore the city had the right to maintain the suit.
    Appeal from the Circuit Court of Madison county; the Hon. J. P. Gillham, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    J. M. Bandy, for appellant.
    Terry, Gueltig & Powell, for appellee.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

In April, 1911, J. E. Lee, appellant, was elected mayor of the City of Venice for the term expiring May, 1913, at which time he was re-elected, his second term expiring May, 1915. During his first term of office his salary as mayor was fixed by ordinance at $250 per annum and during his second term at $600 per year. During the entire time he held the office and prior thereto there was in force in said city an ordinance creating a board of local improvements, providing that the mayor and certain aldermen constitute such board and that the mayor by virtue of his office be the president of such board. This ordinance made no provision for salary or compensation to be paid the mayor, as president of the board, or any member thereof. Several local' improvements were started and completed during the four years appellant served as such mayor and he devoted considerable of his.time to that work. On April 18, 1913, before appellant’s first term of office had expired, the city council passed the following resolution, which was adopted and made a matter of record:

“Moved by Huckaby, seconded by Bayers, that the aldermen be paid the sum of three dollars ($3.00) for each meeting of the board of local improvements attended by them, and the president of the board be allowed the sum of twenty-five dollars ($25.00) per month, while the improvements are in progress.”

On April 22, 1913, a voucher for $450 signed by the city clerk and countersigned by the mayor was presented by appellant to the city treasurer of -the City of Venice and paid by him out of the general funds of the city. This was for compensation to appellant for his services as president of the board of local improvements during the eighteen months of his first term that such improvements were in progress, as provided by • above resolution. During his second term as mayor, appellant drew $250 in the same manner from the general fund of the city for like services rendered during that period. This suit is an action in assumpsit by the city to recover the $700 received by appellant for his compensation as president of the board of local improvements. The case was tried before the court without a jury and judgment for $700 was rendered in favor of the dty.

The City of Venice is incorporated under the general city, town and village act of Illinois. Appellant’s salary as mayor had been fixed by ordinance at $250 per annum prior to the time he was elected and installed in 1911, and at $600 per annum prior to his election and installation in 1913. The City of Venice having a population of less than 50,000, the mayor is, by virtue of his office, president of the board of local improvements, independent of any ordinance. (Chapter 24, sec. 6, p. 463, Hurd’s Rev. St. 1916, Cal. Ill. St. Supp. 1916, 1393.) The duties imposed on appellant as president of such board were simply additional duties given to the mayor to perform and were part of the duties of that office. Appellant was entitled to his salary as mayor but was not entitled to additional compensation as president or member of the board of local improvements. His salary as mayor .was the only compensation for his services on said board which could legally be allowed him. Northwestern University v. Village of Wilmette, 230 Ill. 80. It is provided by section 11, art. IX of our State Constitution that: “The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office shall be increased or diminished during such term.” Section 13, art. VI, ch. 24, Rev. St. (J. & A. ¶ 1356) provides that the compensation of the mayor of any city shall not be changed during his term of office. An ordinance increasing the salary of a mayor during his term of office was held invalid in Stadler v. Fahey, 87 Ill. App. 411. The salary of a city officer cannot be changed during his term of office even though the compensation provided may as a matter of fact be inadequate. Gathemann v. City of Chicago, 263 Ill. 293; City of Chicago v. Wolf, 221 Ill. 131. Neither does the imposition of additional duties upon an officer authorize an increase in his compensation during the term for which he is elected. Fergus v. Russel, 270 Ill. 626, and authorities there cited.

The increase given appellant must also be held illegal for another reason. Section 13, art. VI, ch. 24, Rev. St. (J. & A. ¶ 1356) provides, that the mayor of a city shall receive such compensation as the city council may by ordinance direct. The additional salary in question was not fixed by ordinance but by a resolution. Where the law or the charter of a city requires an act to be done by ordinance, a resolution is not sufficient, but an ordinance is necessary. Chicago & N. P. R. Co. v. City of Chicago, 174 Ill. 439; Village of Altamont v. Baltimore & O. S. W. Ry. Co., 184 Ill. 47. Even if this additional salary could have been legally allowed appellant, it would have had to be fixed by an ordinance and not by resolution.

Counsel for appellant contends the additional compensation, even if illegal, cannot be recovered by the city assigning as a reason therefor, that by the ordinance providing for the improvements six per cent, was added to the assessments and collected from the property owners, for the payment of “all lawful expenses, court costs, etc., connected with said improvements,” and that the $700 paid appellant belongs to that six per cent, fund, is the property of the taxpayers, and is recoverable only by them, if by any one. If the $700 had been paid out of that six per cent, assessment, it might be that the city could not recover it, but the stipulation of facts filed in this case shows that this money was paid appellant on two city warrants, drawn against the city treasury, and was paid out of the general funds of the City of Venice. It therefore belongs to the city, and the city has the right to maintain this suit. ¡The judgment of the trial court is affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Edward J. Saxe, by Hannah Saxe, Appellee, v. Board of Education of School District No. 36, County of Edwards and State of Illinois, et al., Appellants.
    1. Schools and school districts, § 178

      —when evidence sufficient to show bona fide agreement by parents as to custody of child mth relative in another district. In mandamus proceedings to require a board of education of a school district of a county to admit a child to the public school of that district without the payment of tuition, where it appeared that the child resided without the boundary of said district and about six miles from a city which was within the district, and where such child stayed with its grandmother who resided in such city, under an agreement that the grandmother should have the care of the child until its arrival at twenty-one years or until the grandmother’s death, and it was claimed that such agreement was not made in good faith, evidence held sufficient to show that the agreement was made in good faith and not for the purpose of avoiding payment of the tuition.
    2. Domicile—what is of minor child. During the lifetime of the parents their domicile is the legal domicile of their minor child.
    3. Schools and school districts, § 175*—when residence in a district other than that in which parents live is sufficient to entitle child to admission to school. In mandamus proceedings to require a board of education of a school district of a county to admit a child to the public school of that district without the payment of tuition, where it appeared that the child resided without the boundary of said district and about six miles from a city which was within the district and that such child stayed with its grandmother who resided in such city, under an agreement that the grandmother should have the care of the child until its arrival at twenty-one years or until the grandmother’s death, and it was claimed that such agreement was not made in good faith, and that, even if made in good faith, the child was not entitled to attend said school without the payment of tuition because it had no legal domicile in the district, such domicile being the domicile of its parents, held that it was not essential to the right of the child to attend the public schools that it should have a legal domicile in the place where the school was held, and that the only requirement, as far as residence was concerned, was dwelling in the school district, and that therefore such child was entitled to attend the said public school without the payment of tuition.
    4. Schools and school districts, § 145

      —when officers not liable for costs. Parties who defend a suit as school officers are not liable for costs.
    Appeal from the Circuit Court of Edwards county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Allen E. Walker and S. J. Gee, for appellants.
    Joel C. Fitch and H. J. Strawn, for appellee.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

This' is an appeal from a judgment of the Circuit Court of Edwards county, directing that a writ of mandamus issue compelling appellant, the Board of Education of School District No. 36 in said county, to admit Edward J. Saxe, the relator, whom we will call the appellee, to the school of that district without the payment of tuition. The only question is whether appellee’s residence in said school district No. 36 is such as to entitle him, under the law, to attend the school therein without the payment of the tuition required by the school board. By agreement the case was tried before the court without a jury.

Appellee is the eight-year-old son of William B. and Bessie Saxe. The City of Alton is within school district No. 36. William B. Saxe resides about six miles from Albion and without the boundaries of school district No. 36. " In the fall of 1913 appellee entered the school of district No. 36, staying with his grandmother, Hannah Saxe, who was a widow sixty-six years of age and had lived in Albion by herself for some years. After the close of school in 1914, William B. Saxe, after some protest, paid appellee’s tuition for the year 1913-1914, but subsequently refused to pay such tuition for the year 1914-1915. Appellee, by the direction of the school board, was refused admission to the school in 1915 unless his tuition was paid. It is the contention of appellee that soon after the opening of school in 1913, William B. Saxe and Bessie Saxe, his father and mother, entered into a verbal agreement with Hannah Saxe, his grandmother, the terms of which were, in substance, that he should live and have his home with his grandmother until her death or until he becomes twenty-one years of age; that she should have the absolute care, custody and control of him and should support and educate him at her own expense without any cost to his parents, and that, by virtue of such agreement, he is under the law entitled to attend school in district No. 36 without the payment of tuition. Appellants deny such an agreement was in fact made, and claim that even if made it was a mere subterfuge to avoid payment of tuition, and further that such an agreement, though made in good faith, would not entitle appellee to admission to the school without payment of tuition.

It becomes material in the first instance to determine whether the claimed agreement was in fact entered into, and if so whether it was made in good faith. If appellee was living with his grandmother for the primary purpose of attending the school, or if the agreement was not made, or was made as a subterfuge for the purpose of avoiding the payment of tuition, without question appellee would not be entitled to the writ. The father, mother and grandmother of appellee all testified to the making and terms of the agreement; that it was made soon after the opening of school in 1913; that the grandmother was lonesome and for some time had wanted appellee’s parents to give him to her and allow him to live with her; that since the making of the contract the grandmother has had full custody and control of appellee and has clothed and maintained him; that he visited his parents’ home at times between Fridays and Mondays during the school year and spent portiqns of his vacation period there; that the grandmother decided when he should come and go; that he made several trips with her and she paid his expenses. Appellants introduced evidence tending to prove contradictory statements by these witnesses; that appellee spent more time at his parents’ home than claimed by them and that his father signed his report card. As a whole the proof shows the agreement was made as claimed by appellee; that it was made in good faith and not for the purpose of avoiding payment of tuition; that since the making thereof the grandmother has had full custody and control of appellee and has dothed and maintained him; that it was the intention of all parties that she should-continue to do so and the child should live with her until her death, or he should reach the age of twenty-one years.

Counsel for appellants, however, contend, that, even though the contract were made in good faith, appellee had not the right to attend the school without the payment of tuition for the reason that it is necessary to the right of a child to attend the public schools of the State, that it should have a legal domicile in the district in which the school is held, and that the legal domicile of a minor cannot be other than the domicile of the parents. As a general proposition of law it cannot be questioned that, during the lifetime of the parents, their domicile is the legal domicile of their minor child. It remains then to be determined in this case whether it is indispensable to appellee’s right to attend school in district No. 36 that his legal domicile be in that district. The very recent case of Ashley v. Board of Education, 275 Ill. 274, decided since this appeal was taken, is decisive of this question and also of this case, under the facts as above found. A reference to that case will render further discussion of the law unnecessary here. After considering the sections of the school law applicable to the facts, the court there said: “It is not essential to the right of a child to attend the public schools of the State that it should have a legal domicile in the place in which the school is held. The schools are required to be maintained for all persons in the district over the age of six and under twenty-one years of age. The residence required under this language is not such as would be required to establish a right to vote or which would fix the liability of .a township or county for the support of a pauper. The right to attend school is not limited to the place of the legal domicile. A residence, even for a temporary purpose, in a school district is sufficient to entitle children of school age to attend school. * * * The only requirement, so far as residence is concerned, is dwelling in the school district. Every child of school age in the State is entitled to attend the public schools in the district in which it actually resides for the timé being, whether that be the place of its legal domicile or the legal domicile of its parents or guardian, or not. For this has always been the view which has been held, so far as we are informed, by those charged with the administration of the school law.” The court also quoted with approval the following from Bateman’s Common School decisions (Ed. of 1890, page 135): “As a general rule, the residence of the parents is the residence of their children. Boarding children in a district does not, of itself, entitle them to the benefits of the free school in said district. The mere temporary residence of a family in a district, solely to enjoy the benefits of the free schools and with the intention of removal as soon as that purpose is accomplished, does not entitle the children to the privileges of said schools. The removal of a portion of a family from the legal domicile to another district in order to send to the free schools thereof does not confer the right to do so. As a general rule, the residence of their parents is the residence of employees; hence the privilege of the free schools in another district is not acquired by placing children temporarily at service in that district. This includes those who are placed in ’families to attend school and do chore work for their board, etc. The most liberal policy is, however, recommended towards this class of children. The State has as much interest in their education as in that of the more favored, and, although not legally eligible to attend free, the directors should permit them to do so, when not inconsistent with the rights of others and the welfare of the school. Children who have been apprenticed or adopted into a new family or who have been placed permanently in the care of others with no intention of withdrawal, or those over whom parents have relinquished all control from whatever cause, or those who have no parents or guardians or whose parents or guardians live in another State or country and exercise no control over their children, or those who have no permanent abode but go from place to place in search of employment and whose only home is where they find work,—the children included in all the above classes are to be enumerated in the district where they live and are entitled to all the rights and benefits of the free schools in said district.”

This same principle is laid down in Board of Education v. Lease, 64 Ill. App. 60, and Yale v. West Middle School Dist., 59 Conn. 489. Under the rule of'law laid down in these authorities and the facts in this case, appellee was entitled to attend the public school in district No. 36 without the payment of tuition, and the trial court did not err in awarding the writ of mandamus.

Appellee asks that the costs in this court, including the cost of additional abstract of the record, be adjudged against appellants. Appellants are defending this suit as school officers and are not liable for costs. Board of Education v. Trustees of Schools, 74 Ill. App. 401, and School Directors v. School Directors, 135 Ill. 464. The judgment in this case should be and is affirmed.

Affirmed.


author: Mr. Presiding Justice McBride

text:
    Continental Portland Cement Company, Appellant, v. City of Eldorado, Illinois, et al., Appellees.
    1. Mechanics’ mens, § 183

      —when bill by subcontractor against city to enforce lien upon fund alleged to be due contractor is sufficient. On a bill filed by a subcontractor against a city to enforce a lien upon a fund alleged to be owing to a contractor by reason of the construction of a city improvement, where the bill alleged that complainant furnished cement which was used in said work; that notice of complainant’s claim and for a lien was served on the city prior to the determination by the County Court that such improvement conformed to the «requirements of the ordinance; that vouchers and bonds were issued to the contractor to the full amount of the contract price, although the contract between the city and said contractor contained a provision that ten per cent, of the contract price was to be retained by the city until the completion and acceptance of the improvement, but that such ten per cent, was included in said vouchers and bonds before the work was completed, and that a large, amount of the bonds was paid over in advance of the performance of the work therefor; that the bonds were not issued as the work progressed as required by statute; that no certificate was made by the designated parties, and that at the time of the issuance of the vouchers and bonds the contractor was not entitled to them because the work had not béen completed to the extent of them, held that bonds' issued under the conditions and in the manner set forth in the- bill would not deprive complainant of his lien upon the said fund, and that therefore the sustaining of a demurrer to the bill was erroneous.
    2. Mechanics’ liens, § 79*—what act of city does not deprive subcontractor of lien upon funds due contractor. A subcontractor should not be deprived of his lien upon funds due a contractor by the act of the city in issuing instruments to the contractor at a time when he was not entitled to receive them.
    3. Municipal cobpobations, § 406

      —validity of bonds and vouchers issued to contractor in absence of certificate. Where a certificate of the board of local improvements or some officer designated for the purpose is required, bonds and vouchers issued to the contractor without such certificate and issued in advance of the work are not valid.
    4. Municipal cobpobations, § 406—when unlawful to issue bonds to contraptor before determination by County Court of performance of contract. Where the contract for a particular public improvement provided that ten per cent, of the contract price should be retained until after the completion and acceptance of the work, and in view of section 84, ch. 24, Rev. St. (Cal. Ill. St. Supp. 1916, If 1477) providing that the County Court is authorized to hear objections and finally determine whether or not the improvement substantially conformed to the ordinance and the contract, held that any person entering into a contract with the contractor for furnishing materials would, by an examination of the contract, be advised that said.ten per cent, was to be held by the city until a final acceptance of the work, and therefore it Would be unlawful for any officer of the city to assume authority to issue bonds to the contractor for such amount, before the County Court had finally determined that the contract was completed according to the ordinance.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed June 18, 1917.
    Lewis, Ronalds & Lewis and Harry Anderson, for appellants.
    Whitley & Combe, for appellees; C. W. Lomas and J. F. Dammann, Jr., of counsel.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellant filed its bill in the Circuit Court of Saline county, Illinois, to enforce a lien upon the fund alleged to be owing by the City of Eldorado to John Brogan, accruing to him by reason of the construction of an improvement for the said city. To this bill an amendment was filed by the appellant, and to the bill as amended the appellee filed a general demurrer, which, upon a hearing, was sustained and the appellant having elected to stand by its bill as amended, the bill was dismissed. To reverse which this appeal is prosecuted.

The amended bill filed by the appellant alleges, in substance, that the defendant John Brogan did construct a public improvement in the City of Eldorado and known as the Eldorado Sidewalk District No. 1, and that the appellant entered into a contract with the said John Brogan to furnish 6,000 barrels of cement to be used in the construction of said work. That it furnished under said contract a large amount of said cement and that there is now due to the appellant for said cement the amount of $5,199.14, and alleges that said cement was actually used in the construction of said improvement. That on November 30, 1914, the appellant served a written notice upon the City of Eldorado and advised said city of his claim to the amount of $5,000, and for a lien upon the fund accruing to Brogan under such contract; that thereafter two other notices were served of like import except as to the amount due; and that all of said notices were served prior to the determination by the County Court of Saline county, Illinois, that such public improvement conforms substantially to the requirements of the original ordinance for the construction of said improvement. The amended bill also alleges that vouchers and bonds were issued to the said John Brogan and his assigns to the full amount of the contract price for the construction of said improvement, and avers that the said contract price between the City of Eldorado and John Brogan contained a stipulation that ten per cent, of the contract price was to be retained by the city until said improvement had been completed and accepted, but avers that this ten per cent, was included in vouchers and bonds before the work was completed, and also avers in the said amended bill that a large amount of the bonds were issued and paid over to the contractor and his assign in advance of the performance of the work therefor, and that the bonds were not issued as the work progressed in the manner provided by statute, and that the vouchers and bonds were not issued, nor were any certificates made, by the board of local improvements or other persons designated, and that at the time of the issuance of such vouchers and bonds the contractor was not entitled to the same for the reason that the work to the extent thereof had not been performed by the contractor. The bill seeks to have such vouchers and bonds declared invalid and that it be given a lien upon the fund accruing from such work for the cement furnished by appellant.

It is insisted by counsel for appellee that the court did not err in sustaining the demurrer to complainant’s bill for the reason that appellant’s notice was not served upon the City of Eldorado until after the bonds had been issued and that the notice came too late to preserve a lien for appellant. It is true that if such bonds were lawfully issued before appellant served its notice that it would not be entitled to a lien. It is alleged in the bill and admitted by the demurrer that the bonds were issued by the City of Eldorado in advance of the work done and without a certificate from the board of local improvements or other person designated by law to issue such certificates. It is provided by statute that: “From time to time, as the work under any contract for such improvement progresses, upon certificates hy the said board of local improvements, or hy some officer designated by such board for that purpose, payments may be made either in money, vouchers or bonds, as herein provided, to apply upon said contract price, reserving, however, a sufficient amount upon each of said payments to properly secure, in the judgment of said board, the faithful performance of the said contract, said reserve to be paid over at such time and on such conditions as the board shall fix, after the said work has been completed or accepted.” Jones & Adding-ton Statute, section 91 of chapter 24, art. IX. Before payments could be made under this statute, from time to time, as the work progressed, there mqst be, as a basis for such payment, a certificate of the board of local improvements or some officer designated by such board for that purpose, and we are of the opinion that bonds or vouchers issued without such certificates and issued in advance of the work cannot be valid. Terre Haute Vitrified Brick Co. v. Montgomery County Loan & Trust Co., 163 Ill. App. 441. It appears from the allegations of this bill that these bonds were issued not only without the certificate of the board of local improvements but were issued in advance of the work, which could not be done. “The subcontractor should not be deprived of his lien by the act of the city in issuing instruments to the contractor at a time when he was not entitled to receive them.” First Nat. Bank of Chicago v. City of Elgin, 136 Ill. App. 453. We are also of the opinion that as the contract between the City of Eldorado and Brogan provided that ten per cent, of the contract price for the building of the improvement should be withheld until the improvement had been completed and accepted, and that under the statute the only one that could finally pass upon and accept the work as completed, according to the ordinance, was the County Court of Saline county (in which the proceedings had been instituted in this case). This court was authorized by statute to hear all objections - and finally determine whether or not the improvement, as , constructed, substantially conformed with the ordinance and contract entered into. Section 84 of chapter 24, Rev. St. (Cal. Ill. St. Supp. 1916, ¶ 1477). Any person entering into a contract with Brogan for the furnishing of materials would, by an examination of his contract with the City of Eldorado, be advised that ten per cent, of the contract was- to be held by the city until a final acceptance of the work, and it seems to us that it would be unlawful to allow the mayor or any officer of the city to assume the authority to issue bonds for this amount that had been reserved before the County Court had finally determined that the contract was completed according to the ordinance. The city was under no obligations and had no authority to issue the bonds for the amount reserved by the contract, especially in the absence of a certificate from the board of local improvements, until it had been judicially determined that the contract had been completed according to the ordinance. Case v. City of Sullivan, 222 Ill. 56. The bonds that were issued without authority of the board of local improvements, and in advance of the work performed, and those issued in violation of the contract and without the certificate of the board of local improvements being invalid as to other lienholders, then the appellant or other subcontractors would not be deprived of their right of lien upon the fund by the reason of issuing of - bonds under such conditions. Haynes & Lyons v. County of Coles, 234 Ill. 137.

We are of the opinion that bonds issued under the conditions and in the manner set forth in complainant’s bill, and hereinbefore commented upon, would not deprive the complainant of his lien upon the fund due for the building of this improvement and for that reason the court erred in sustaining a demurrer to complainant’s bill, and the decree of the Circuit Court will be reversed and the cause remanded with directions to set aside the order dismissing complainant’s bill and to overrule the demurrer thereto.

Decree reversed and remanded with directions.


text:
    Bartee Tie Company, Appellant, v. William J. Jackson, Receiver of Chicago & Eastern Illinois Railroad Company, Appellee.
    1. Railroads, § 907a

      —when stipulation in lease of railroad land as to nonliability for loss by fire is valid. In an action against a railroad company to recover for loss of property by fire, where it appeared that defendant leased to plaintiff part of land owned by it near its right" of way, for the purpose of storing railroad ties owned by plaintiff, until such time as plaintiff should desire to have them hauled, and the lease contained a stipulation releasing the lessor from all liability, either in law or equity, from any cause of action that might arise by reason of damage by fire to the property of the lessee caused by the operation of the railroad of the defendant, and the property in question was destroyed by a fire caused by an engine setting fire to weeds, which fire spread to the said property, held that the said stipulation was valid, and broad enough to exempt the defendant from all liability, and that the general demurrer to two counts of the declaration was properly sustained.
    2. Railroads, § 907a*—when doctrine that common carrier cannot by contract relieve itself from liability for negligence is inapplicable. The rule that a common carrier cannot by contract relieve himself from liability for negligence, held to have no application to the provisions of a particular lease of land between a railroad company and its lessee, releasing the lessor from all liability for damages to the property of the lessee stored on such land, as the result of fire caused by the operation of the railroad of the lessor.

      3. Warehousemen, § 2*—when railroad company is not engaged in business of warehouseman. In an action against a railroad company to recover for loss of property by fire, where it appeared that the defendant leased to plaintiff part of land owned by it near its right of way, for the purpose of storing railroad ties owned by plaintiff, until such time as plaintiff should desire to have them hauled, and the lease contained a stipulation releasing the lessor from all liability, either in law or equity, from any cause of action that might arise by reason of damage by fire to the property of the lessee caused by the operation of the railroad of the defendant, and the property in question was destroyed by a fire caused by an engine setting fire to weeds, which fire spread to the said property; and plaintiff claimed that defendant was engaged in the business of railroad warehouseman, and that the storing of said ties was a public utility, held that as the evidence failed to show that the defendant undertook to store the ties, either for hire or otherwise, and as plaintiff took possession of the land and had exclusive control thereof, the facts would not warrant a holding that the defendant was engaged in the public utility business of a warehouseman.
    4. Railroads, § 907a*—when stipulation, in lease construed as release from all liability for destruction by fire of property stored on railroad land. In an action against a railroad to recover for loss 'by fire, where the destroyed property consisted of railroad ties belonging to plaintiff and stored upon land leased by the defendant to plaintiff, and the lease contained a stipulation exempting the lessor' “from all liability, either in law or equity, for or on account of any cause of action that might arise by reason of any damage by fire to the property of the lessee caused by the operation of said railroad of said lessors,” and plaintiff contended that because the word “negligence” was not used, only causes of action not caused by the negligence of the defendant was meant, held that the language was broad enough to release the defendant from all liability of every kind.
    5. Appeal and ebbob, § 1455*—when error in sustaining demurrer to count in declaration is not prejudicial. Error in sustaining a demurrer to a count of a declaration held not prejudicial, where the result would not have been changed even though plaintiff had been permitted to show every material fact alleged in such count.
    6. Appeal and ebbob, § 1422

      —when errors are not prejudicial. Courts of review reverse only for such error as may have been prejudicial to the complaining party, and no error or number of errors can with propriety be said to prejudice a party when it is clear that the judgment upon the conceded facts is the only one that could properly be rendered, and that another trial would necessarily result the same way.
    Appeal from the Circuit Court of Massac county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed June 18, 1917.
    Courtney, Helm: & Helm, for appellant; J. D. Mocquot, of counsel.
    C. L. V. Mulkey and W. R. Hunter, for appellee; Homer T. Dick, of counsel.

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

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, sume topic and gectiou number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

It appears from the record in this case that the appellee was a railroad company and has for many years last past been engaged in operating, in connection with its main line of railroad, a spur track to its station at Joppa Junction in Pulaski county, Illinois, and was engaged in the business of hauling lumber, ties and other freight incident to the business of a railroad company. That for the purpose of facilitating its business and for accommodating its customers it purchased a tract of land consisting of about three hundred acres at and near Joppa Junction, a part of which it leased to several of its customers in separate tracts to be used by such customers respectively in storing their ties, lumber, etc., thereon and holding such material until the markets were suitable for disposing of the same, at which time the ties and lumber would be loaded upon appellee’s cars and hauled to the places desired by such customers respectively. There were times when several months would intervene between the time when the ties were stored upon the yard and the time of shipment to market. The appellee maintained a spur extending from Joppa on the Ohio River to Joppa Junction in Pulaski county, covering a distance of about eighteen miles, and at Joppa it had incline tracks ex-, tending down to the river where cars were transported to receive lumber, ties, etc., from off of the barges that were brought to the landing. It also appears from the evidence that the appellant was engaged in the business of buying and selling ties, many of its ties were purchased from ¿long the Cumberland and Tennessee Rivers and brought down the Ohio River in barges where they were towed by means of a boat down to appellee’s landing at Joppa and were there unloaded from the barges onto appellee’s cars and hauled by appellee up into the yards where the ties were unloaded and stored upon the lease of appellant. There was no compensation paid for the towing of the barges down to the landing or the hauling of the ties from the landing up to the tract of land leased by appellant where the ties would be stored. The ties were unloaded from the barges onto appellee’s cars and from appellee’s cars onto the lease, by the servants of appellant. The tract of land leased by appellant from appellee and upon which the ties were stored consisted of about four acres of land which lay adjoining appellee’s road. Spur tracks were also built by appellee extending out into the lease occupied by appellant. There were a large number of other patrons of appellee who had leased tracts of land similar in size to the one leased by appellant and «were used by these parties respectively for the storing of ties, lumber, etc. It further appears that there was some dry weeds -and grass along appellee’s right of way and that on April 6, 1915, this dry grass and weeds were set on fire by a spark from one of appellee’s engines and the fire spread onto the leases occupied by appellant and destroyed, as claimed, about 50,000 ties of the value of about $25,000., The only charges made by appellant and the only profits accruing to it was the regular freight rate when the ties were finally loaded upon appellee’s cars from the leased tract and shipped to market. It further appears that all of the ties consumed by this fire had been stored by appellant upon its lease prior to December 31, 1914. May 1, 1914, a lease was entered into by which the appellee leased to appellant the tract of land in question from May 1, 1914 until May 5, 1915, for which appellant agreed to pay an annual rental of $20, and it was stipulated in said lease that the premises wére to be occupied exclusively as a location for the storage of crossties. And it was further provided in said lease as follows: “In consideration of the privilege hereby given the lessee to occupy and use a portion of the ground of the railroad company, as above described, and the benefits and privileges to be derived therefrom, and of the rental as above named, the lessee hereby releases the lessors, their successors and assigns from all liability for damage by reason of want or failure at any time of title on the part of the lessors, to any part of said leased premises, and also release the lessors, their successors and assigns from all liability, either in law or equity, for or on account" of any cause of action that might arise by reason of any damage by fire to the property of the lessee caused by the operation of said railroad of said lessors, on, near or by the premises aforesaid, whether said damage should occur on the premises hereby leased or on the premises adjacent thereto, etc.”

There were three counts in plaintiff’s declaration. The first and third counts stated the facts substantially as above set forth, except as to the lease. The second count, to which a demurrer was filed and sustained, differed somewhat from the other counts which will be hereinafter noticed more particularly. To the first and third counts the defendant filed the general issue and a special plea setting up the lease above described and a release of all damages caused by fire to the property of the lessee by the operation of the railroad of lessor. At the close of all of the evidence the court directed a verdict for the appellee.

The appellant has assigned many errors upon the record, but at the close of its statement says: “The questions for determination are: 1st. Did the court err in sustaining a general demurrer to the second count? 2nd. Did the court err in directing the jury to find for defendant on the trial under the first and third counts? We believe that a decision of these questions determines the whole of the matters in dispute in this case. In arriving at a conclusion we will first consider the question as to whether or not the court erred in directing a verdict. It appears from this record that under the circumstances and conditions above set forth, one of appellee’s engines while engaged in operating its road set fire to some dry weeds upon its right of way, which was communicated to appellant’s lease and destroyed its ties to the extent above described. This is not disputed by the appellee but it insists that by reason of the release contained in the lease releasing appellee from all liability, either in law or equity, for or on account of any cause of action that may arise by “reason of any damage by fire to the lessee caused by operation of the railroad of lessors, on, near or by the premises aforesaid, whether said damage occurs on the premises hereby released or on premises adjacent thereto,” relieves the appellee from the payment of any damages occasioned by such fire. This action is brought by the appellant to recover damages occasioned by the operation of appellee’s railroad, and it seems to us that unless such contract is void that the appellant is bound thereby and barred from sustaining the right of action against appellee on account of damages resulting from such fire. In a case similar to this one in which Checkley had built a warehouse, upon the right of way of the Illinois Central Railroad Company, upon a lease which provided that the risk of all loss and damage by fire, however caused, was assumed by the lessee that such a provision in the lease barred the lessee from any right of action against the railroad company on account of fire that was set out by the burning of dry grass and weeds upon its right of way, and the Supreme Court in passing upon that question says: ‘‘Clearly, the language of this lease, under any fair construction, exempts appellee from any liability to appellant for damages arising from a fire resulting from the negligence of appellee’s servants or otherwise. The intent and purpose of the parties clearly were to exonerate appellee from any liability to appellant for damages that might result from fire.” Checkley v. Illinois Cent. R. Co., 257 Ill. 491. We are of the opinion that the language of the lease in question is broad enough to exempt appellee from all liability and that the case of Checkley v. Illinois Cent. R. Co., supra, is conclusive as to appellant’s rights herein.

It is contended by appellant that this clause pertains to the operation of appellee’s railroad and interferes with its duties as such railroad and for that reason the clause is void. As we view it, the ties at the time of the fire were not in process of transportation, and were not under the control of appellee but were under the control of appellant and upon its lease, and is wholly different from a case where goods are lost or destroyed when under the care and control of the railroad, and it seems to us that the railroad had the right to stipulate against any loss that might be occasioned before the goods were placed under its control and while they were under the control of appellant. In the Checkley case, above referred to, the Supreme Court further says: ‘ ‘ That the lease by appellee of a portion of its right of way for a warehouse does not relate to any of the duties imposed by the law upon appellee as a common carrier. The public is in no way concerned in this transaction, nor is it a matter of public interest whether the loss of the property destroyed by fire shall fall on one party rather than on the other. The situation is entirely different between the loss of this warehouse and its contents and the loss of goods intrusted to a carrier for transportation. In the latter case the public has an interest which is conserved by holding the carrier to a strict accountability for its negligence or that of its servants, and this for the plain reason that the public is compelled to employ the carrier to transport goods. Any member of the public is liable to require the services of a common carrier, and the carrier is under the legal duty of serving the public indiscriminately. Not so in regard to leasing a part of its right of way for a warehouse or an elevator. "While the railroad company has the power to make such lease if it does not interfere with its duties to the public, it is in no sense required to do so. No one could compel a railroad company, by mandamus, to lease its right of wav for such purposes. It relates to a matter that is entirely within the discretion of the railroad company. In testing the validity of the lease under consideration, the circumstance that one party to it is a railroad corporation and engaged in the service of the public as common carrier is not of controlling importance. Indeed, it is difficult to see that it is of any importance whatever. Page, in his late work on Contracts, in section 368, lays down the rule as follows: ‘The rule that a common carrier cannot, by contract, relieve himself from liability for the negligence of himself or his employees has no application to provisions in leases given by such carrier for buildings owned by him on or near the right of way, exempting him from liability for loss by fire.’ ” It is clear from the facts here disclosed that the appellee was under no obligations to lease this tract of land to the appellant, and in doing so it was simply for the convenience of the appellant, and appellee doubtless had in mind that if the ties were stored upon its lease it would eventually obtain the haulage of them to market. There was no public duty resting upon appellee to store and care for these ties. Ffiom December 31, 1914 to April 6, 1915, they were under the control of appellant upon property under its absolute control, and no one had a right to enter thereon for the purpose of storing other ties, and we are not able to see that the making of this lease in any manner interfered with the duties that appellee owed to the public.

It is further insisted by counsel for appellant that the appellee was engaged in the business of railroad warehousemen and that the storing of those ties by the railroad, as it is assumed it did, was a public utility. There is no evidence in this record that we can find that the appellee undertook to store the ties, either for hire or otherwise. The appellant took possession of the tract of land and had the right to store its ties and to prohibit any one else from storing ties or any other article upon the premises leased by it, and appellee had no right to authorize or permit any one else to store ties or other articles upon this particular tract of land. It is insisted that the case of State Public Utilities Commission v. Monarch Refrigerating Co., 267 Ill. 528, is decisive of this question. We have examined that ease carefully but do not believe it is of the importance attached to it by counsel, as the premises there were under control of the Monarch Company and they were receiving and storing goods for the public indiscriminately, except that they had special apartments in which particular goods were stored, and in the manner directed by the company, and that it was strictly engaged in serving the public in that particular line. “While it is not essential to a public use that its benefits should be received by the whole public or even a large part of it. They must not be confined, however, to specified or privileged persons.” People v. Ricketts, 248 Ill. 428. “A public use requires that all persons must have an equal right to the use and that it must be in common upon the same terms, however few the number who avail themselves of it, that it shall be open to all people to the extent that its capacity may admit of such use.” State Public Utilities Commission v. Monarch Refrigerating Co., 267 Ill. 528. “The use must concern the public as distinguished from the individual or any particular number of individuals. * * * It may be confined to a particular district and still be public.” State Public Utilities Commission v. Noble Telephone Co., 268 Ill. 411.

We do not believe that the facts in this case will warrant us in holding that the appellee was engaged in the public utility of a warehouseman. The whole tenor of the lease in question contradicts the idea that any one but appellant was to be served by the storage of ties upon this particular tract of land.

It is also said by counsel that as the word “negligence” was not used in exempting appellee from liability it will be intended that the parties understood this clause to mean, any cause of action at law or equity not caused by the negligence of appellee himself. The language of this provision of the lease is broad and includes all liability of every kind, and if that provision in the lease is not void, then in order to give effect to the terms of the lease it would include all liability whether flowing from negligence, accident or otherwise.

It is insisted by counsel that the court erred in sustaining the general demurrer to the second count of appellant’s declaration. This count of the declaration sets up such a state of facts as would warrant the court in holding that the appellee was engaged in the business of storing ties and lumber and that it was a pub-lie utility; also that it held out to its patrons that it kept and maintained in close proximity a locomotive engine equipped with appliances for the extinguishment of fires so that if a fire originated upon the right of way or within the storage grounds that it could be readily extinguished; and then avers that a spark of fire from the engine ignited the weeds and spread onto appellant’s premises and caused the destruction of appellant’s ties. In this count of the declaration there is nothing said, however, about the contract, and we are inclined to agree with the contention of counsel that the court erred in sustaining the demurrer to the second count of the declaration, but the serious question that arises is, Did the sustaining of this demurrer operate as an injustice to the appellant or prevent the appellant from showing such facts as would entitle it to recover under all of the evidence in the case ? As we view the law and the facts of this case, even if the appellee held out to the public that it kept an engine equipped for the extinguishment of fire, and that the engine was not present on that day, this would not entitle it to recover because of the contract that it had entered into and was in evidence in the case. The circumstance of appellee being engaged in the business of a public utility was submitted under the other counts of the declaration, and we are unable to see that the error committed can be said to be prejudicial to the rights of appellant in this case. Even if appellant had been permitted to show every material matter set forth in the second count of the declaration, it could not have changed the result under the evidence in this case. It is a conceded fact that the lease was entered into as claimed by appellee, and contained the provisions as set forth, and our Supreme Court has said: ‘ ‘ Courts of review reverse only for such errors as may have been prejudicial to the complaining party, and certainly no error or number of errors can with any propriety be said to prejudice a party when it is clear, as it is here, that the judgment upon the conceded facts is the only one that could properly be rendered, and that another trial would therefore necessarily result in the same way.” Heckle v. Grewe, 125 Ill. 58. To authorize a reversal it must appear from the report not only that error intervened but that such error was prejudicial or probably prejudicial to the parties seeking reversal. Bettis v. Green, 171 Ill. 495.

We do not believe that the error complained of is prejudicial to the rights of appellant, or that any other conclusion could have been arrived at than the one pronounced by the Circuit Court upon the admission of the lease in evidence. We are of the opinion that there is no reversible error contained in this record, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    Otto Freise, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    Statement of the Case;
    Action by Otto Freise, plaintiff, against the Metropolitan Life Insurance Company, defendant, to recover a policy upon the life of one John F. Freise. From-a judgment for plaintiff for $336, defendant appeals.
    William P. Launtz, for appellant.'

      Abstract of the Decision.
    1. Insurance, § 365

      —iohen company precluded from setting up forfeiture of life policy for failure to pay premiums on time. In an action to recover upon a life insurance policy, where it appeared that premiums were payable weekly; that the policy provided that it should be incontestable after two years; that a grace of four weeks should be granted for the payment of every premium after the first; that the acceptance of any overdue premium should not create an obligation to receive premiums in arrears over four weeks; that a policy which had become void for nonpayment of premiums might be revived if not more than fifty-two premiums were due, upon a showing of sound health, and, in at least three or more instances the premium money was collected and receipted for in the pass book after the expiration of the days of grace, contrary to a further provision that agents had no power to waive forfeiture or receive overdue premiums or to receipt for the same, and at the time of the death of the insured the premium was about two weeks overdue, and when an agent of the company called for the premium and was informed of the death of the insured, he refused to accept any money and thereafter the beneficiary made payment at the office of the company and obtained a receipt without saying anything about the death of the insured, held that the company was precluded from setting up such forfeiture.
    2. Insurance, § 321*—when company estopped to take advantage of forfeiture. Forfeitures of life insurance policies are not favored and will never be enforced unless the evidence is clear, that such was the intention; and where the conduct and dealings of the insurance company with the assured is such as to induce the assured to believe that a forfeiture will not be insisted upon, then such insurance company will be estopped from taking advantage thereof.
    3. Insurance, § 321*—right to waive forfeiture for failure to pay premiums on time. A life insurance policy does not necessarily become void if the premium is not paid when due, and the company has the undoubted right to waive the forfeiture if it deems proper and dispense with a prompt payment of the premium at any time.
    Flannigen & Zulley, for appellee; Edward C. Zulley, of counsel.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

4. Insurance, § 365 —what is evidence that company is not relying upon failure to promptly pay premiums as forfeiture of policy. In an action upon a life insurance policy, where it appeared that, after the death of the assured, the beneficiary paid an overdue premium at the office of the company without saying anything about the death, and where the policy had not then been forfeited, held that such facts were evidence that the company was not relying upon the failure to make prompt payment as a forfeiture of the policy.

5. Insurance—waiver of provision that forfeiture cannot be waived except by agreement signed by certain officials. A clause in an insurance policy, providing that a forfeiture cannot be waived except by an agreement signed by certain officials of the company, is for the benefit of the insurer, and, like any other clause or condition, is subject to waiver, and the provisions of such condition have reference only to the express condition of waiver of forfeiture, and not to a waiver claimed to exist by reason of acts of the insurer inconsistent with an intention on its part to enforce the condition.