text:
    Oscar B. Hensel et al., Appellees, v. Capital Live Stock Insurance Company, Appellant.
    Gen. No. 6,802.
    1. Insurance!, § 584

      —when plea sets up good defense. In an action to recover on a policy of live stock insurance, a plea which sets up a provision of the contract requiring the insured to give immediate notice to the insurer in case of sickness or injury of any animal covered by the policy and providing that the insurer shall not be liable for loss by death if the insured fails to give such notice, and alleges failure to give such notice, sets up a valid defense.
    2. Pleading, 5 445*—when variance arises. One cannot plead performance and recover under proof which shows waiver of performance.
    3. Insurance, $ 646*—when evidence of waiver is inadmissible. Where, in an action to recover on a policy insuring live stock, plaintiff files a declaration consisting of a special count on the policy, in which he alleges in general terms that he had performed aU of the conditions of the policy, no waiver being pleaded, evidence tó show waiver is improperly admitted.
    4. Waiver, § 1*—what is essential to waiver. Knowledge of the facts is necessary to bind a party by a waiver.
    5. Insurance, § 665*—when evidence is insufficient to show waiver. In an action to recover on a policy insuring a hog which contained a clause requiring the insured to give immediate notice to the insurer in case of sickness or injury of the hog, evidence which showed that insured discovered the sickness or injury of the hog on January 29 and employed a veterinary to attend it, without notifying the insurer, such injury consisting in a fracture of a small bone of the knee joint; that on February 23 an injury to the shoulder was discovered, pus and a septic condition of the blood being present, and another veterinary was called in to assist; that on February 26 insured informed insurer of the injury at the latter’s office, telling the insurer that the hog was unable to get up and that two veterinaries had been employed who thought the hog’s leg would be stiff, as to 'which the insured stated he was indifferent provided the hog got well, but not telling the insurer of the date of injury nor of the seriousness of the case nor of the septic condition, held not sufficient to establish a waiver of the clause requiring notice.
    6. Insurance, § 348

      -—what is necessary to cause waiver of provision of policy. In an action to recover on a policy insuring a hog, in order that a conversation of the insured with the insurer concerning an injury which the hog had received may constitute a waiver of a clause in the policy requiring immediate notice to insurer of injury or sickness of the hog, there must have been something in what the insurer said or did which induced the insured to rely arid act upon it and to take a different course from that which he would otherwise have taken and which would make it operate as a fraud upon insured for the insurer to enforce the clause thereafter.
    7. Insurance, § 248*—what is effect of failure to give notice of sickness of animal to insurer. Failure of insured to give notice of sickness or injury of the insured animal as required by the policy does not avoid the policy but merely relieves the insurer from liability for loss by death of the hog caused by the sickness or injury of which notice was not given, and constitutes an election of the insured to carry himself the risk that the hog would die from that injury or sickness.
    8. Insurance, § 348*—what does not constitute waiver of provision of policy. That an insurer issuing a policy of insurance on a hog after the hog’s death furnished the insured blanks whereon to make proof of loss is not a waiver of a clause of the policy requiring immediate notice to the insurer in case of sickness or injury of the hog where the blanks contained a provision that furnishing of them in no manner waived any of the insurer’s defenses to the policy.
    Appeal from the Circuit Court of Stark county; the Hon. C. V. Miles, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of facts.
    Opinion filed October 12, 1920.
    Rehearing denied November 4, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Thomas J. Graydon and James H. Rennick, for appellant. ,
    Clarence W. Heyl, Harry C. Heyl and John W. Fling, Jr., for appellees.

      See Illinois Notes Digest, Vois. 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 Dibell

delivered the opinion of the court.

The Capital Live Stock Insurance Company issued to H. F. Adams a policy insuring him against loss of a Poland China hog “by death caused by disease or accident (including fire and lightning) ” in the sum of $1,500. The policy contained the following provision in large caps in a prominent position in the policy: “What to do in case of sickness or injury. In case of sickness or injury of any animal covered by this policy, the insured shall give immediate notice thereof by telegram to Gains W. Hubbard, 175 West Jackson Boulevard, Chicago, Illinois, and the Company shall not be liable for loss by death if the insured fails to give such notice.” Adams filed a declaration consisting of a special count on the policy, in which he alleged in general terms that he had performed all the conditions of the policy. To this was added the common counts. Defendant filed a plea of the general issue and a second plea, setting up the provision of the contract above quoted, and it therein alleged that said animal was taken sick or injured on January 29, 1919, with the sickness or injury which afterwards resulted in its death, and that Adams did not give immediate notice thereof as said contract required. It also filed a third plea which set up the same provision and that the animal became sick about January 29, 1919, and that Adams knew of it and decided upon his examination that such sickness or injury was not serious enough to give defendant said notice as required by the policy and elected to carry the risk of said sickness or injury himself and absolve defendant from liability for the death of said animal resulting from such sickness or injury. To these special pleas Adams replied that he did comply with each and every provision of said policy. This replication concluded to the country and defendant joined issue thereon. Just before the trial began plaintiff got leave to amend the declaration, so as to make his partner, Oscar B. Hensel, a coplaintiff. A very imperfect amendment was made, but as no point is made against it, Hensel will not be further mentioned. There was a jury trial and a verdict and a judgment for plaintiffs for $1,531, from which defendant appeals.

1. In Binnie v. Western Live Stock Ins. Co., 213 Ill. App. 75, we held that a provision very similar to the one above quoted was a contract which the parties had a right to make and which was binding upon them and we there cited numerous authorities to that effeet, to which we here refer. These special pleas therefore set up a valid defense, and the only replication thereto was that plaintiff did perform that and all other conditions. There was no proof of performance of said condition, but positive proof by Adams, himself, that he did not give any such notice as the contract required. Plaintiff relies solely upon a conversation with Hubbard long after the hog was injured, which he claims amounted to a waiver of said condition. " He did not plead a waiver. A material question is whether proof of a waiver is admissible where waiver is not pleaded. Some earlier cases in this State so hold. The recent cases are to the contrary. In Hart v. Carsley Mfg. Co., 221 Ill. 444, it is stated that the true rule is this: ‘ ‘ Though an excuse for not performing a condition is for some purposes equivalent to performance, yet it is not the same thing, and therefore in pleading, performance must never be averred by a party who relies upon an excuse for not performing, but he must state his excuse.” It is further there stated that the plaintiff must have performed as stated in the contract or must aver and prove a sufficient excuse for nonperformance. To the same effect is Expanded Metal Fireproofing Co. v. Boyce, 233 Ill. 284. In Walsh v. North American Gold Storage Co., 260 Ill. 322, the court said, on p. 331: “The general rule is that where a plaintiff relies on facts which show a waiver of performance, he must plead such facts, and he cannot plead performance and recover under proof of waiver or performance.” These recent cases refer to the earlier cases, holding that waiver can be proved without pleading it and do not follow them. These later cases have been followed in recent Appellate Court cases, and among them Brenton v. Newlin, 161 Ill. App. 168. The great value of common-law pleading is that it produces an issue where one party alleges a certain matter which the other party denies. Each party knows what question is to be tried, and can prepare his proofs to meet it. The course here pursued by appellee would permit the parties to litigate a matter upon which no issue had been formed. It would permit one party to take the other by surprise by presenting proof of matters not pleaded. The evidence which plaintiff claimed tended to show a waiver should not have been admitted and the court erred in rulings on instructions on this subject.

2. But, if waiver of the condition above quoted had been pleaded the proof thereof did not support plaintiff’s contention, and it should not have resulted in a verdict for plaintiff, for several reasons:

(a) A knowledge of the facts is necessary to bind a party by a waiver. In Order of Foresters v. Schweitzer, 171 Ill. 325, “full knowledge of the alleged cause of forfeiture” was required to establish a waiver. Similar language was used in Coverdale v. Royal Arcanum, 193 Ill. 91. In Bennecke v. Connecticut Mut. Life Ins. Co., 105 U. S. 355, the court said: “A waiver of a stipulation in an agreement must, to be effective, not only be made intentionally, but with knowledge of the circumstances. This is the rule where there is a direct and precise agreement to waive the stipulation. -A fortiori is this the' rule when there is no agreement either verbal or in writing to waive the stipulation, but where it is sought to deduce a waiver from the conduct of the party.” We so held in Modern Woodmen of America v. Wieland, 109 Ill. App. 340, on p. 351. The sickness or injury of the hog was ascertained by Adams on January 29. He sent no notice to Hubbard by telegram or otherwise. He employed a veterinary surgeon to attend the animal. The injury consisted in a fracture of one of the small bones of the knee joint. On February 23 an injury to the shoulder was discovered and pus was found and a septic condition of the blood and another veterinary surgeon was called by Adams to assist. On February 26, 1919, Adams called at the office of Hubbard in Chicago and then gave him the first information of an injury to this hog. Adams told Hubbard that the hog he had insured with defendant was injured and unable to get up, and that he had employed two veterinarios to take care of him; that the doctors thought his leg would probably be stiff, that there would probably be a stiff knee joint, but that the owners did not care about that if the hog only got through, so he could be used for breeding purposes. He did not tell Hubbard when the injury occurred unless his assent to a leading question put to him on cross-examination can be held to mean that he told the date. He told Hubbard nothing about the seriousness of the case and told him nothing about the injury and septic condition discovered on February 23. Because the true facts and true conditions were not made known to Hubbard, what he said on that occasion ought not to be held a waiver of the rights of defendant growing ont of the failure of Adams to give the notice required by the provisions above quoted.

(b) In order to constitute a waiver by that conversation between Adams and Hubbard, there must have been something in what Hubbard said or did which induced Adams to rely and act upon it, and to take a different course from what he otherwise would have taken and which would make it operate as a fraud upon Adams for defendant afterwards to enforce this condition. In Knickerbocker Ins. Co. v. Gould, 80 Ill. 388, on p. 394, the court said:

“Where a. defective notice is given, if the company points out the defects, the insured can supply them by a new notice, and if the company fails to point out the objections, they may very properly be regarded as waived. But a notice not served in time rests on a different principle. If the company makes objection, the insured cannot remedy the defect. It is too late, and hence there is neither reason nor necessity for the company to speak or be concluded by its silence.”

In Weston v. State Mut. Life Assurance Co., 234 Ill. 492, speaking on this subject the court said: “This act of the company did not in any way affect the actions of Curtis. He was not led to do or omit to do anything which he would otherwise have omitted or done.” In Globe Mut. Life Ins. Co. v. Wolff, 95 U. S. 326, the court said:

“The doctrine of waiver, as asserted against insurance companies to avoid the strict enforcement of conditions contained in their policies, is only another name for the doctrine of estoppel. It can only be invoked where the conduct of the companies has been such as to induce action in reliance upon it, and where it would operate as a fraud upon the assured if they were afterwards allowed to disavow their conduct and enforce the conditions. ’ ’

Adams was in no way injured by what Hubbard said or did, which was to the effect only that Hubbard approved the veterinary surgeons Adams had selected and said he saw no reason why the hog should not get along all right and that he would telephone one of the veterinary surgeons in regard to the care of the case. The right of Adams to recover for the death of the hog from these injuries had already been lost for failure to give the notice required by the contract. There was nothing Adams could have done to revive that right after the conversation with Hubbard.

(c) Plaintiff treats the case as though defendant was alleging a forfeiture of the contract. We think this is not a correct statement. The' insurance was against death caused by disease or accident, including fire and lightning. Certain diseases were excepted, including death by hog cholera. The failure to give notice of this injury did not avoid the policy. If the hog had been killed by fire or lightning after this injury, the failure to give notice of this injury would not have prevented a recovery for the death caused by fire or lightning. If .the hog had recovered from this injury, the policy would still have been in force until the end of the term. The sole effect of the failure to give notice of this injury as required by the contract was that defendant would not be liable for loss by the death of the hog caused by such sickness or injury, of which the owner had not given notice by telegram to Hubbard. By failing to give the required notice of this injury, plaintiff elected himself to carry the risk that the hog would die of this injury, and to absolve defendant from liability for death from that particular injury. In Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529, 57 N. E. 458, the court said. “The insured undertook at their own peril to decide whether there was or would be a liability or not, and whether the injury received was severe enough to require the stipulated notice to be given. Having assumed that hazard and realized their mistake, they have no one to blame but themselves that they are left without a remedy.” In National Live Stock Ins. Co. v. Bartlow, 60 Ind. App. 233,110 N. E. 224, where there was a similar requirement as to notice, authorities upon the subject are discussed and as no notice had been given, and the failure was unexplained, it was held that the insurance company was not liable.

3. After the death of the, hog, Adams asked defendant for blanks on which to make proofs of loss and defendant furnished them, and it seems to be contended that that act of the defendant was a waiver of this defense. Those blanks contained the following: ‘ ‘ The insured hereby agrees that the furnishing of this loss blank to the insured in no manner waives any defense it now has or it may have to the payment of said claim hereunder.” In Binnie v. Western Live Stock Ins. Co., supra, there was a very similar provision in the blanks furnished by defendant to the plaintiff, and it was held that that provision prevented such a waiver, and numerous authorities were there cited in support of that position.

The judgment must therefore be reversed and, as no waiver was pleaded, and, if it be treated as pleaded it was not proved, we conclude we should not remand the cause.

Reversed with finding of facts.

Finding of facts to he incorporated in the judgment. We find that plaintiffs failed to notify defendant of the injuries to the hog which the policy sued on required them to give, and that plaintiffs did not plead any waiver by defendant of said notice, and that no such waiver was proved; and that the proofs show that plaintiffs have no cause of action against defendant under the policy sued on.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    Ernst Heinrich and Ida Heinrich, Appellees, v. J. W. Norton and John A. Dickson (Impleaded), Appellants.
    Gen. No. 6,815.
    1. Appeal and error, § 1395

      —when chancellor’s findings will not he disturbed on appeal. The findings of fact by a chancellor before whom the witnesses were produced in open court will not be disturbed on appeal unless the court can say that such findings were clearly and palpably wrong.
    2. Cancellation of instruments, § 35*—when evidence is sufficient to warrant relief. On a bill to cancel a contract for the sale of land and to recover back the consideration paid thereunder, evidence as to the inadequacy of the consideration and the situation of the parties considered and held to show that the statements made to complainant by defendant’s agent as to the value of the land were relied on by complainant and that they were so excessive as to be fraudulent, and to sustain a decree for complainant.
    3. Principal and agent, § 113*—when principal is hound hy agent’s acts. Statements by an agent, whom the owner of land employs to sell the land, made to a prospective purchaser as to the value of the land, are within the scope of the agency and binding upon the owner.
    4. Cancellation of instruments, § 2*—what does not prevent relief. On a bill to cancel a contract for the sale of land and to recover the consideration paid thereunder, charging fraud, deceit and misrepresentation, the mere fact that complainant visited the land more than once before the contract was signed does not deprive him of the right of rescission where it appears that he had no knowledge' of soils or crops nor of the character, value • or productiveness of that land or other lands in the vicinity and did not know of the roads giving access to the land, but merely relied on the plat shown him by defendant’s agent.
    5. Cancellation of instruments, § 26*—when delay does not prevent relief. On,a bill by the purchaser to rescind a contract for the sale of land, where it appears from his evidence that he did not realize the untr.uth of, the statements made to him as to the value of the land until shortly before the filing of the bill, that the bill was not filed until he had occupied the land something over 2 years, does not constitute such delay on his part as to relieve defendant from liability.

      Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. Db Selm, Judge, presiding. Heard in this court at the April term, 1920.
    Modified and affirmed.
    Opinion filed October 12, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Rathje, Wesemann, Hinckley & Barnard and Cratty Bros. & Flatatj, for appellants.
    John H. Beckers, for appellees; E. P. Harney, of counsel.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Under date of September 7, 1917, J. W. Horton by John B. DeYoney, his agent, entered into a written contract with Ernst Heinrich and Ida Heinrich, his wife, by which the former agreed to convey to the latter by warranty deed certain real estate in Kankakee county for $12,500, or which $4,500 was payable upon the signing of'the contract, $1,125 on or before 2 years after the date of the contract, and $1,125 on or before 3 years from that date, and upon receipt of said deed, the grantees were to execute notes for $6,250, vdue on or before 5 years from date with interest at 6 per cent per annum, payable semiannually, and were to pay all taxes and assessments legally levied on said land after 1918, and were to secure such remaining payment by a trust deed of said real estate. (These payments in fact make a total of $13,000.) It was provided that if the second party failed to make any payment or perform any covenant by them made, the contract could be forfeited at the option of the first party, and in that case all payments made by the second party should be forfeited and the first party should have the right to re-enter the premises. The contract was made obligatory upon the heirs and assigns of the respective parties. The down payment was made by the conveyance by the second party to the stenographer of Norton of a piece of real estate in Chicago, occupied by the second party as a garage, the equity in which over and above an incumbrance thereon amounted to over $4,500. The second parties afterwards took possession of the premises and paid one instalment of interest. Afterwards Norton conveyed said real estate and other real estate to John A. Dickson, subject as to these premises to the contract thereon. Thereafter, the second party being in default of the second payment of interest, Dickson obtained from the second party a chattel mqrtgage on personal property on the land to secure said interest. Shortly thereafter Dickson declared a forfeiture and served' upon the second parties a demand for possession of the prerpises. The second parties then filed a bill in equity, and afterwards an amended bill, against Norton and Dickson and others, in which they charged fraud and deceit and misrepresentation in the obtaining of said contract, and asked that the contract be canceled and also the chattel mortgage and note, and that defendants or one of them be required do return to them the consideration they had paid and pay them for the improvements complainants had placed upon the premises, and for other relief. The bill was answered by the respective defendants, and Dickson filed a cross-bill, asking that the original contract be forfeited and that possession of the premises be delivered to him. This cross-bill was answered, and the cause was tried before the chancellor and decided in favor of complainants. The court offered to permit Dickson to amend ' his cross-bill so as to have the equities between himself and Norton adjusted in the decree, but Dickson declined to make such amendment. There was a decree which found the issues in favor of the complainants and directed that Norton pay complainants $4,500, the down payment he had received, and also $5,000 for the improvements placed upon said real estate by the complainants, less a mechanic’s lien for $363.20, which Dickson had paid, leaving the amount to be .paid on account of said improvements $4,636.60. The decree further provided that upon the payment of said sums to complainants by either Norton or Dickson or upon the filing and approval of an appeal bond, if appeal should be taken, the complainants surrender possession of said real estate to Norton or his assigns by the first day of March thereafter and release Norton and his assigns from the covenants contained in said original agreement. Norton and Dickson prayed an appeal which was allowed upon their filing an appeal bond in the penal sum of $12,000 with securities to be approved by the clerk. The cross-bill was dismissed, and a claim of lien by the Garden City Oil Company was denied and it. prayed "and was'allowed an appeal. Upon the record here Norton and Dickson act as appellants, but we are unable to find any appeal bond in this record and are unable to know from the record what appeal, if any, was perfected, nor by whom. We shall assume that Norton and Dickson have brought the case here by appeal.

In determining the issues of fact it is necessary to inquire into the intelligence and experience of the respective parties to the contract. Norton was in the live stock commission business at the Stock Yards in Chicago and owned this land and other lands in the vicinity. The transaction was chiefly conducted on his part by John B. DeVoney, a real estate agent in Chicago, and his various agents and employees, including his brother, Joseph S. DeVoney, and Edmund Bill, Norton employed John B. DeVoney to sell this land. During the preceding 14 years DeVoney had sold $8,000,000 worth of real estate in Illinois, and $4,000,000 worth elsewhere. He had personally inspected this real estate and had a plat made by surveyors and had a blue print thereof which he exhibited to Heinrich. Heinrich was a Russian about 48 years of age when this contract was made. His father had been' on land in Russia. He worked with his father some on said land until he was 15 or 20 years old, and thereafter worked in some trade,until he came to this country and Chicago about 11 years' before this contract. He there engaged in the bricklaying business and afterwards went into the garage business. He never had any schooling in the English language and spoke and understood it very imperfectly. His inability to understand ordinary English is made much clearer by reading his evidence in the record than it can be by merely reading the condensed abstract. He knew nothing about soils or drainage or the raising of crops in this country. He wished to leave the garage business. He saw an advertisement of this land by DeVoney and went to the office of the latter, and talked the matter over with DeVoney and his agents, and returned several times, and went to Kankakee county and saw this land with employees of DeVoney. The evidence favorable to complainants tends to show that DeVoney and his agents told Heinrich that this was good land and worth $125 per acre, and that Heinrich believed what they told him. DeVoney showed him the blue prints, and showed him that the land in question in Section 13, owned by Norton, was subdivided into ten-acre lots, and showed him by the blue print that there was a public highway all the way around said Section 13 in which said land was located, and also through the center of it from east to west, and that of the ten lots which DeVoney was proposing to sell to him (which are the lots described in the contract), five were bounded on the north by a road and the other five on the south by a road. This ease of access to the premises by a public road was one consideration which induced Heinrich to buy. After several interviews De-Voney agreed to take for the first payment the equity of redemption in the garage of $4,500. Joseph S. De-Voney and Bill took Heinrich over the land and told him that it was good land and worth $125 per acre. In going to the premises at that time they went through the woods and did not go by any public road, and the agents told Heinrich that they were going by a short road. In fact, there were no roads on any side of this section nor through the middle of it, and there was no access to this land owned by other people. Before the deal was closed Heinrich proposed to con-suit a lawyer. The agents of Norton persuaded him not to do this. This seems not to be denied. If he had employed a lawyer with that sense of professional duty required in People v. Vollintine, 264 Ill. 586, on pp. 604 to 606, such lawyer, finding Heinrich ignorant and inexperienced, would have been likely to ascertain the value of this land from some disinterested person in Kankakee county who knew it. He would also have discovered that the contract in fact called for $13,000 instead of $12,500.

When Heinrich afterwards made complaint to the vendor and his agents of the absence of roads, he was told that the road was coming, that there would be a road opened by public authority, and they presented him and he signed a petition to have roads opened to this land. At the trial no roads had been opened. Heinrich spent the winter of 1917-1918 with his family in a house some distance from this land. Afterwards he bought the house to move it upon the land, and then found that he could not move it, and was obliged to take it to pieces and move the material. He erected a house at a cost of $3,000 and a bam at a cost of $1,600 and some small sheds. He was able to raise very little on the ground the first year and but very little more the next year. The land in question is partly timber and partly clear. The timberland is higher than the other land and is composed of sand on which are scrub oak, shrubbery and small trees. Some witnesses thought the timberland was worth $10 per acre, others that the timberland would be worth just what the timber could be sold for, less the cost of cutting and removing it, and that the timberland would be worth nothing after the timber was removed, it being apparently in the nature of -sand barrens. Witnesses differed as to the amount of timberland, ranging from 40 per cent to 60 per cent of the whole. The clear land is so low that in the rainy season it is generally under water. It has a sandy loam soil 2 or 3 feet deep, underlaid by a deep vein of sand. Two of defendants’ witnesses conceded that the land had very little value until drainage was established, and the ditch already there is insufficient to carry off the water. It was proved that insurance companies will not loan any money on < this land or other land of the same character in the vicinity. Some witnesses estimated the value of the timberland at $10 or $15 per acre and of the clear land at $20 or $30 per acre. Witnesses for appellants value the land much higher, and real estate men from Chicago connected with BeYoney or defendants testified that the value of the land was $125 per acre. There was proof tending to show that BeYoney for Norton had sold a few lots in the same subdivision to other parties for $125 per acre. The names of those parties are in the record and they are mostly foreigners. We are not advised whether the sales to them were under similar circumstances to the sale to complainants.

In determining what conclusion to, reach as to the real value of these premises when this contract was made in 1917 we must take account of the fact that the witnesses were produced in open court before the chancellor. Under such circumstances the decree will not be disturbed unless the court can say that the findings of fact by the chancellor were clearly and palpably wrong. It is so held in Woods v. Youngren, 272 Ill. 521; Roche v. Roche, 286 Ill. 336, and many other cases. We see no reason to say that the conclusion of the chancellor in this question of fact is clearly wrong, but on the contrary are of opinion that it is clearly right. An examination of the testimony of the witnesses who were acquainted with the character of this land and its history satisfies us that the price at which this land was sold was at least five times its real value. Appellants contend that inadequacy of consideration is not alone sufficient to justify rescission. Such is the rule, as held in Nichols v. Roach, 276 Ill. 388, and many other cases. But there are exceptions to' that rule. In Dillman v. Nadlehoffer, 119 Ill. 567, where the general rule above stated is fully recognized, it is also said: “Yet it is just as well settled, that where the contracting parties, for any cause, are not on equal terms, and such representations are gross exaggerations, resulting in an unconscionable bargain, equity will not hesitate to interpose in favor of the injured party.” In Witherwax v. Riddle, 121 Ill. 140, the court said: “Mere inadequacy of price is not, per se, ground for setting aside a transfer of property, yet it may be so gross and palpable as to amount, in itself, to proof of fraud, and this, in connection with proof of imposition and misrepresentation on the part of the purchaser and his agents, will be sufficient to characterize the transaction as fraudulent, in a court of equity.” That was a case of an exchange of lands. In Murray v. Tolman, 162 Ill. 417, much is cited from a Michigan case that applies to this question of value, and it was there held that misrepresentations of value, made in that case and relied upon to the great harm of the purchaser, furnished a sufficient justification for equitable interference. Applying this rule, the court in Fecht v. Freeman, 251 Ill. 84, said: “The inadequacy of consideration for the transfer of said farm from John Fecht to Gus T. Freeman is so great as to shock the conscience of a court of equity and stamp the whole transaction with fraud from its inception to its close, and the evidence is convincing and well-nigh conclusive that John Fecht was the victim of Greddes and Freeman.” There are other cases in Illinois to the . like effect. We are of opinion that the statements made to Heinrich by the agents of Norton as to the value of these premises were so grossly excessive as to be fraudulent, and that they were relied upon by Heinrich in making his purchase. The statements made by these agents were within the scope of their agency and are binding upon Norton. Hahl v. Brooks, 213 Ill. 134. Heinrich’s possession was notice to Dickson of all the legal and equitable rights of Heinrich. German-American Nat. Bank v. Martin, 277 Ill. 629, and cases cited on p. 649. Defendants contend that the fact that Heinrich went upon these premises several times before he signed the contract deprives him of any right of rescission. In Voorhees v. Campbell, 275 Ill. 293, where a similar question was raised, the court said, on p. 326: “While it is true that he made a visit to Chicago and inspected the property, he knew nothing of its value except from the information which he secured from defendants in error. * * * Plaintiff in error did not discover the fraud practiced upon him until the filing of this bill, and he cannot therefore be held to have ratified or affirmed the transaction.” Though Heinrich visited this land more than once before he signed the contract, he had no knowledge of soils or crops nor of the sandy character of this land nor of its actual value, and he did not know that no good crops had been raised upon that land or similar land in that immediate vicinity for many years, as shown by the proofs favorable to complainants, and did not know that good crops could not be' raised thereon under the conditions then existing; and he also did not know that there were no roads by which he could get to the land, but relied upon the plat shown him in Chicago by the seller’s agents, indicating all needed highway facilities.

Defendants also contend that the delay in filing this bill relieves them from liability in this casé. It is obvious from reading the evidence of Heinrich in the record that a realization of the untruth of the statements made to him as to the value of this land did not come to Heinrich until shortly before he filed this bill, and what we have above quoted from Voorhees v. Campbell, supra, shows that such a delay does not bar relief.

There is one respect in which we are of opinion the decree must be slightly modified. The court fixed the value of the improvements put upon the real estate by complainants at $5,000 and deducted therefrom $363.20 for a claim for mechanic’s lien paid by Dickson, and required the rest of the value of said improvements to be paid by Norton. Heinrich in testifying did once estimate the total value of those improvements at $5,000 and included therein the .value of some sheds, but those had been destroyed by fire and Norton could,.,not be required to pay for them. But elsewhere in his testimony, Heinrich clearly showed an expenditure of $3,000 upon the house and $1,600 upon the bam; and that is all appellees claim in their brief. The estimate in the decree is therefore $400 too great. The sum of $4,636.80, required by the decree to be paid by Norton for said improvements, should be reduced by $400 and that amount should read in the decree $4,236.80. The decree will be modified in that respect by the court below; and in all other respects it is affirmed.

Modified md .affirmed.


text:
    Reuben P. Metcalf, Appellee, v. Jemima Metcalf et al., Appellants.
    Gen. No. 6,834.
    1. Witnesses, § 135

      —wliat is effect of incompetency of party. A plaintiff in a suit to foreclose a trust deed, given to secure promissory notes, brought against the devisees of the maker, though incompetent as a witness generally, under section 2 of the Evidence Act (J. & A. K 5519) can, nevertheless, make the affidavit of the loss of the notes necessary to lay the foundation for secondary evidence of their contents.
    2. Evidence, § 134*—what is effect of preliminary proof when notes are lost. In a suit to foreclose a trust deed, given to secure promissory notes, brought by the assignee of such deed and notes against the maker’s devisees, an affidavit by complainant as to the loss of the notes is not proof of their contents.
    3. Appeal and error, § 1505*—when testimony of incompetent witness is harmless. In a suit to foreclose a trust deed, given to secure promissory notes, brought by the assignee of the deed and notes against the maker’s devisees, that the complainant, though not competent under section 2 of the Evidence Act (J. & A. f 5519), was examined, over defendant’s objection, as to the contents of the notes, is harmless error since the case was tried without a jury.
    4. Evidence, § 134*—when affidavit is sufficient as foundation for secondary evidence. In a suit to foreclose a trust deed given to secure promissory notes, an affidavit introduced as the foundation for giving secondary evidence of the contents of the notes which states that affiant, the complainant, kept the notes in a trunk at his residence; that since a certain date he has lost the notes or they have been abstracted; that he has carefully searched the trunk and all places in his residence and elsewhere where he kept papers and the notes were likely to be found and was unable to find them; that they were not intentionally or purposely lost for the purpose of introducing secondary evidence; that the last he knew of them they were in the trunk; that it is not in his power to produce them, held sufficient to authorize secondary evidence of their contents.
    5. Conflict of laws, § 31*—what law governs as to remedy on contract. Remedies on contracts are to be regulated and pursued according to the law of the place where the action is instituted.
    6. Limitation of actions, § 11*—what statute governs action on

      contract. Notes given March 21, 1872, are subject to the 16-year Limitation Act then in force under the Act of November 5, 1849, the acts of 1872 and 1874 repealing that act not being applicable to them.
    7. Limitation of actions, § 96

      —what is effect of part payment. A partial payment on the debt, made by the party originally chargeable and received thereon by the party who owns the notes evidencing the debt, implies a new promise by the debtor to pay the debt, whether the payment is before or after the bar of the statute of limitations.
    8. Limitation of actions, § 87*—what statute applies when new promise is given. A new promise created by a partial payment of the debt by the party chargeable is governed by the statute of limitations in force when the new promise is made.
    9. Appeal and error, § 1301*—-what will be presumed as to evidence in trial by chancellor. On appeal from a decree in chancery, that incompetent evidence was admitted is not ground for reversal, as it will be assumed that in rendering his decree the chancellor considered only the competent evidence.
    10. Mortgages, § 426*—when foreclosure is not barred by limitations. Foreclosure of a trust deed or mortgage securing a note or debt is not barred until the debt is barred, and if the debt has been kept alive, the statute of limitations is no defense to the foreclosure.
    11. Notice, § 30*—what is effect of record of mortgage. One who takes subsequent title to the land with knowledge from the public records that there is an unreleased trust deed or mortgage thereon takes the land with notice that it is subject to the trust deed or mortgage, unless the debt secured thereby is barred.
    12. Limitation of actions, § 96*—what is effect of part payment. Payment on a promissory note stops the previous running of the statute of limitations, and the statute begins to run after the last payment.
    13. Evidence, § 99*—when trust deed is competent evidence of 'debt secured. A trust deed securing promissory notes which contains a full description of them is competent evidence of the contents of such notes.
    14. Mortgages, § 505*—when existence of debt is established. In a suit to foreclose a trust deed securing promissory notes in which complainant had laid the foundation for the introduction of secondary evidence of such notes, the existence and contents of the notes were sufficiently established by introducing the original trust deed, executed and acknowledged on the day the notes were ■ signed, the signature to the deed being also proved by a witness, which deed contained a full description of the notes, and by evidence of a witness who had seen the notes describing them, where there is no evidence contradicting the description of the notes as given in the deed and by such witness.
    15. Mortgages, § 605

      —when evidence shows ownership of mortgage. In a suit to foreclose a mortgage securing promissory notes of the mortgagor brought by one claiming to own tlie deed and .notes, evidence examined and held sufficient to support a decree [that complainant was owner of the notes and mortgage.
    16. Limitation of actions, § 94*—when indorsement on note shows part payment. An indorsement of partial payment on a note made by the holder without the privity of the maker is not, of itself and uncorroborated, sufficient evidence of payment to repel the defense created by the statute of limitations, unless it is shown to have been made at a time when its operation would be against the interest of the party making it.
    17. Bills and notes, § 96*—when extension of note is valid% An extension of a note for the lifetime of the maker for a valuable consideration is a valid agreement.
    18. Limitation of actions, § 90*—when part payment is proved. On a bill to foreclose a mortgage given to secure the payment of promissory notes of the mortgagor in which defendant pleaded the statute of limitations and contended that certain payments indorsed on the note which would defeat the bar of the statute were made by the holder óf the note without authority, evidence reviewed and held to support a finding that payments had been made which barred the running of the statute.
    19. Mortgages, § 396*—when defense of failure to record extension is waived. On a bill to foreclose a mortgage, the defense that the extension of the mortgage was not recorded as required by section 11% of the Limitations Act, in force July .1, 1915 [Callaghan’s 1916 Stat. 1 7206(1)] is waived unless pleaded.
    20. Appeal and error, § 1713*—when defense is waived because not argued. A defense which does not appear in the abstract and which appellee declares in his brief was not raised below will be regarded by the Appellate Court as having been waived, notwithstanding appellant’s reply brief claimed that it was raised but without pointing out any place in the record where it can be found.
    21. Mortgages, § 396*—when statute as to recording extension of mortgage does not apply. Section 11% of the Limitations Act, in force July 1, 1915 [Callaghan’s 1916 Stat. If 7206(1)], requiring an extension agreement to be recorded within 5 years to keep a mortgage alive and allowing the holder of such an incumbrance 5 years from July 1, 1915, in which to obtain an extension agreement, does not apply to a mortgage, to foreclose which suit was begun, a decree rendered, appeal taken and the cause under advisement in the Appellate Court before the expiration of the 5-year period.
    22. Mortgages, § 632

      —when decree is alternative. A decree, on foreclosure of a mortgage, that defendants pay the sum found due with interests and costs within 10 days, and that in default thereof the mortgaged premises be sold, is not a personal but an alternative decree.
    23. Appeal and error, § 663*—how appeal bond in foreclosure proceedings should be conditioned. An appeal bond conditioned to pay the amount of the decree rendered on foreclosure of a mortgage not against defendants personally and not providing for a deficiency decree is improper where such a bond was not required by the order granting the appeal, but should have been for costs or costs and interest on the decree from the date of its rendition.
    24. Mortgages, § 660*—when solicitor’s fees are not allowed. Where a mortgage is foreclosed by a suit in equity, solicitor’s fees cannot be allowed, even though the mortgage provides for attorney’s fees on foreclosure under power of sale as therein authorized.
    25. Mortgages, § 660*—what is necessary that solicitor’s fees be allowed. Solicitor’s fees for a foreclosure in equity are not provided by statute and can only be allowed if the contract so provides.
    Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding. Heard in this court at the April term, 1920.
    Modified and affirmed.
    Opinion filed October 12, 1920.
    Rehearing denied November 11, 1920.
    Gower & Hobbie and Varnum A. Parish, for appellants.
    E. P. Harney, 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.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This is a bill in equity brought by Reuben P. Met-calf to foreclose a trust deed on land in Kankakee county, given to secure four notes, a principal note for the sum of $1,200, due three years after date, and three coupon notes of $120 each, due respectively in one, two and three years after date, all drawing interest at 10 per cent per annum after maturity. The trust deed- and notes were dated March 21, 1872. It is claimed that the debt has been kept alive by payments and other matters hereinafter stated. The notes and trust deed were given by Silas Metcalf and his then wife. It is claimed that the trust deed and notes were assigned by E. C. Dwelle, the grantee and payee, to Fisher Metcalf, and were afterwards by him assigned to Reuben P. Metcalf, the complainant. Silas Metcalf died May 15, 1918, leaving a widow and no descendants surviving him. By his last will, which was admitted to probate in Kankakee county, he gave a life estate in all his property to Jemima Metcalf, his widow (not the wife who signed the instruments being foreclosed), and subject thereto he gave all his property to Neil Metcalf, whom he described in the will as the boy whom he brought up, and who was not shown to be any relation to him. Fisher Metcalf was the father of Silas, Spencer, Reuben, Frank and Edwin Metcalf. The bill was filed August 24, 1918, against Jemima Metcalf, the widow, Neil Metcalf, personally and as executor of the will of Silas Metcalf, and Edwin Metcalf. The widow ahd Neil answered. Edwin did not answer and what' interest he had does not appear. The answer called for proof of the execution and alleged assignments of the instruments in question, and alleged that if there were such instruments they had been paid, and it set up the statute of limitations. The cause was tried and there was a decree of foreclosure for $8,140 and costs. The widow and Neil filed separate appeal bonds and' bring the case here upon one record.

Complainant filed an affidavit of the loss of the notes as a basis for secondary evidence of their contents. It is denied by appellants that he was competent to make that affidavit. Complainant was not a competent witness generally, under section 2 of the Evidence Act (J. & A. (f 5519), because the suit is against the devisees of a deceased person. When parties were wholly incompetent to testify on their own behalf in all cases, still a plaintiff could make the affidavit of loss of an instrument necessary to lay the foundation for secondary proof of its contents. In Dormady v. State Bank of Illinois, 3 Ill. (2 Scam.) 236 (in 1840), it was held that the practice of admitting the oath of a party as evidence of loss of a paper arises from the necessity of the case, and that it is not to go to the jury, but is addressed to the court to establish the right of the party to introduce secondary evidence to prove the contents of the lost paper. In Palmer v. Logan, 4 Ill. (3 Scam.) 56, in announcing the same rule, the court said: “Much serious and irreparable injustice might be done to individuals, should a different rule prevail. There are many circumstances which might, and most probably would, prevent any other person from knowing the fact of a loss or destruction of a private writing.” In Wade v. Wade, 12 Ill. 89 (in 1850), it was held that the oath of a party was competent and sufficient to lay the foundation for secondary evidence of the contents of a lost note. Parties were made competent to testify generally (but not against devisees and the like), by the Act of 1867. Gross’ Statutes, p. 286. In Becker v. Quigg, 54 Ill. 390, the court said:

“This court has gone to this extent, and no farther: that a party to the suit may make an ex parte affidavit as to the loss of a paper, so as to permit secondary evidence of the contents. This arises from the necessity of the case. Until our recent statute, parties could not be witnesses, except in special cases before justices of the peace. The general rule was, that a man could not be a witness in his own cause. The exception has been made, as promotive of justice, and from the fact that the loss of a paper is generally known only to the party.”

Taylor v. McIrvin, 94 Ill. 488. In Tayloe v. Riggs, 1 Pet. (U. S.) 591 (in 1828), Chief Justice Marshall, speaking for the court on this subject, said:

‘' As the fact is generally known only to the party himself, there would seem to be a necessity for receiving his affidavit in support of it. * * * In the case before the court it is not probable that any other testimony of the loss of the paper was attainable; and we think the affidavit of the party laid a proper foundation- for the admission of secondary evidence.”

The affidavit was therefore proper to be received by the court as a basis for secondary evidence of the contents of the notes. But it was not proof of their contents. Complainant was examined as a witness on the same subject, subject to objection. As there was no jury, defendants were not harmed thereby, though complainant was not a competent general witness on that subject. In the affidavit complainant stated, among other things, that he kept the notes in a trunk at his residence; that since September 8, 1917, he has lost the notes or that the sam'e have- been abstracted; that he has carefully searched said trunk and all places in his residence' and elsewhere where he kept papers of that kind and where said notes might likely be found, and was unable to find them; that they were not intentionally lost or disposed of for the purpose of introducing secondary evidence thereof; that the last he knew of them they were in his possession in said trunk, and that it was not in his power to produce them at the trial. The affidavit was sufficient to authorize secondary evidence of the contents of the notes.

Defendants answered that the remedy sought was barred by the statute of limitations, but did not state what statute was relied upon. The notes were made in Illinois and were secured on land in Illinois, but they were payable at Rushville, Yates County; New York. Remedies on contracts are to be regulated and pursued according to the law of the place where the action is instituted. As the statute operated merely upon the remedy, the law of the forum controls. Wood on Limitations, sec. 8; 13 Am. & Eng. Encyc. of Law (1st Ed.) 768. These notes were given March 21, 1872. The statute of Illinois for the limitations of action on notes was then 16 years. Gross’ Statutes, ch. 66, par. 17, p. 430. That Act of November 5, 1849, was repealed in 1872 by section 24 (J. & A. ff 7219) of the Limitation Act then adopted, section 16 (J. & A. 7211) of which made the limitation on such instruments 10 years, but said section 24 contained this provision: “But this section shall not be construed so as to affect any rights or liabilities, or any causes of action, that may have accrued before this Act shall take effect.” Said Act of November 5, 1849, was again repealed in 1874 by the general repealing Act, chapter 131, sec. 1, par. 138 (J. & A. ff 11106), but section 2 (J. & A. ff 11107) of said Act contained the following provision: “And when any limitation law has been revised by this or the twenty-seventh General Assembly, and the former limitation law repealed, such repeal shall not be construed so as to stop the running of any statute, but the time shall be construed so as to stop the running of any statute, but the time shall be construed as if such repeal had not been made.” The twenty-seventh General Assembly therein referred to was the one which adopted the Act of 1872. Therefore the 16-year limitation applies to this case, so far as relates to the original cause of action. A partial payment on the debt, made by the party originally chargeable, and received thereon by the party who owns the notes which evidence the debt, implies a new promise by the debtor to pay the debt, and this is equally true whether the payment is before or after the bar of the statute of limitations has become complete. Kallenbach v. Dickinson, 100 Ill. 427. But such new promise is governed by the statute of limitations in force when the new promise is made. Drury v. Henderson, 143 Ill. 315; Walker v. Warner, 179 Ill. 16; Wellman v. Miner, 179 Ill. 326. All payments claimed to have been made on these notes are alleged to have been made after the Limitation Act of 1872 went into force on July 1, 1872. It follows that until the first payment so relied upon by complainant, the limitation of 16 years is applicable, but the new promise thereby created would be barred in 10 years under the Act of 1872.

Complainant was examined generally as a witness in his own behalf. He gave some testimony before any objection was made of his competency and that evidence was competent to be considered by the court because not objected to. Objection was made to the material parts of his testimony. Generally the court, made no ruling but said the evidence would be admitted subject to objection. In one instance the court, during the hearing stated that he thought the witness competent for certain purposes. The action of the court upon objections made to the testimony of the complainant is made the subject of numerous assignments of error, and it seems to be supposed by appellants that if the court failed to rule correctly on any such objection, that would be reversible error. The rule is otherwise in equity. In Treleaven v. Dixon, 119 Ill. 548, in discussing this question the court said:

“In chancery cases, the whole record, including all the evidence offered, is before us, and we are required to assume that all the incompetent evidence was rejected, and all the competent evidence was admitted and considered, on the final hearing. If there is competent evidence in the record sufficient to sustain the decree, it must be affirmed; if not, it must be reversed, and this without regard to whether the chancellor may have been right or wrong in his views as to the competency of the evidence at the hearing.”

In Goelz v. Goelz, 157 Ill. 40, the court quoted with approval from Swift v. Castle, 23 Ill. 214, as follows:

“The question presented upon the trial before the chancellor, as well as in the Appellate' Court, is, upon all the legitimate evidence in the cause, what decree should be rendered? The chancellor being the judge of both the law and evidence,, the presumption is that in rendering his decree he will only regard that which is legal and pertinent. * * * It is the correct practice for the chancellor, after the evidence is heard, to regard no portion of it which is immaterial or illegal, and to decide the case alone on the legal evidence adduced. Such is believed to have been the uniform practice, which has been adopted from considerations of convenience, and is in no way calculated to hinder or delay the administration of justice, and no reason has been suggested, nor is any perceived, why it should be changed.”

In Riehl v. Riehl, 247 Ill. 475, the court said:

“The rule which is applicable to the trial of chancery proceedings is, that any error which may have been committed in rulings upon the admission or exclusion of evidence is unimportant if there is competent evidence in the record sufficient to support the decree, and that the evidence which ought to have been considered would not, if considered, change the result. The question in such case is whether or not, upon the whole record, substantial justice appears to have been done to the parties.”

In the present case the remark by the court that lie thought complainant a competent witness on certain subjects named was made in the first part of the hearing, which was before an adjournment to take a deposition, and before defendants offered their proof after the return of the deposition, and was some months before the decree. The court repealed that remark or ruling with a qualification not shown in the abstract during the second part of the hearing, but that was more than two months before the decree. There is no reason therefore why we should not apply the rule stated in the foregoing authorities and in other cases and assume that in the final decision of the case the chancellor considered only the competent evidence, and the only question before us on that subject is whetlnr the competent evidence supports the decree.

In this State a foreclosure of a trust deed or a mortgage securing a note or debt is not barred until the debt is barred, and if the debt has-been kept alive the statute of limitations is no defense to the foreclosure; and one who takes subsequent title to the land with knowledge from the public records that there is an unreleased trust deed or mortgage thereon, talies with notice that the land is subject to said trust deed or mortgage, unless the debt secured thereby is barred. Murray v. Emery, 187 Ill. 408; Kraft v. Holzmann, 206 Ill. 548, and cases there cited. Payment on a promissory note stops the previous running of the statute of limitations. The statute begins to run after the last payment on the note. Schifferstein v. Allison, 123 Ill. 662; Stein v. Kaun, 244 Ill. 32.

Complainant introduced in evidence the original trust deed. It was executed by, Silas Metcalf and his then wife on the day of the date of the notes and was acknowledged by theni on that day and was soon thereafter recorded. The signatures of Silas and his wife to said trust deed were also proved by Prank Metcalf. Said trust deed contains a full description of the notes. It is competent evidence of the contents of said notes. O’Neil v. O’Neil, 123 Ill. 361. Frank Metcalf saw the notes and described them in his testimony. There is no evidence contradicting the description of the notes in the trust deed and in the evidence of Frank. The existence and contents of the four notes here in question were in our judgment fully proved by competent testimony, without resorting to, the incompetent testimony of complainant on that subject.

Does ■ the competent proof show that complainant is the owner and legal holder of these notes? The instrument securing said notes is called a trust deed in the pleadings and frequently in the evidence, but is really a mortgage, as the payee of the notes, E. C. Dwelle, is the grantee. Complainant introduced in evidence an original of a written assignment of said mortgage with the bond or obligation therein described and the money due or to grow due thereon, with the, interest. This assignment was from Dwelle to Fisher Metcalf and was dated May 8, 1878, and was duly acknowledged and the official character of the acknowledging officer certified on that day, and it was i-ecorded in Kankakee county on April 17, 1893, and again on June 8,1918. He also introduced in evidence an original written assignment by Fisher Metcalf to Reuben P. Metcalf, complainant, of said mortgage with the bond accompanying said mortgage and therein referred to and all sums of money due and to grow due théreon. This was dated April 7, 1893, and acknowledged and certified on that day and recorded in Kankakee county on April 17, 1893. Frank Met-calf testified that the signature to said last instrument was the handwriting and signature of Fisher Metcalf, his father. Complainant introduced in evidence a release by Reuben Metcalf, complainant, to his brother, Spencer Metcalf, of part of the real estate incumbered by the mortgage here in question (being premises not included in the decree of foreclosure therein). Said partial release is dated August 24, 1897, and acknowledging that day, and the character of the acknowledging officer certified on February 13, 1900, and the instrument is recorded in Kankakee county on April 17, 1900. Said partial release contains these words: “Retaining and holding the remainder of said mortgaged premises as security for the payment of said mortgage, according to its conditions.” Frank testified that the signature to this partial release was that of his brother, the complainant. These instruments, the genuineness and validity of which are not questioned here, tend to show that complainant became the owner of the debt secured by this mortgage on or before April 7, 1893, and that he was still the owner thereof on August 24, 1899, and there is no -evidence that he ever parted with snch ownership. Frank testified that Fisher Metcalf, his father, lived with him in New York State 3 years and then went to live with his son, Spencer, on an adjoining farm; that 3 or 4 years after Fisher went to live with Spencer, Frank moved to Momence, Illinois; and thereafter lived one mile from Silas; that Fisher, the father, died in 1893, in the State of New York; that Frank had a conversation with his father in which the latter told Frank that he gave this trust deed and the notes therein described to Reuben P. Metcalf, the complainant; that he remembers his father dividing this estate before he died and that, in that division, this mortgage and the notes therein described given to complainant; that he thinks this f gift by Fisher to Reuben was in 1891 or 1892; that he did not remember seeing the notes at that time but thought they were in the mortgage when it was handed to Reuben; that this was done at Spencer’s home in New York State, and that Eva Metcalf, wife of Spencer, handed them to Reuben; that the assignment had been drawn recently before that time and that he thinks the assignment was delivered to Reuben at that time. He testified that he knew the justice who drew the assignment and took the acknowledgment, and the witness testified that he thought he was present when Fisher signed it. Frank testified that Fisher kept his papers in a box in his sleeping room and that Fisher got the papers out of that box in his sleeping room and that Fisher got the papers out of that box and handed them to Eva and Eva handed them to Reuben, and Reuben took them to his home. He testified that his father told Reuben not to crowd Silas on the mortgage during Silas’ lifetime. Frank testified that the notes were lost some time in 1917; that after the noteos were given by his father to Reuben, the witness had several conversations with his father about the gift, in which his father said Reuben never got anything out of his estate and was waiting a long time for his share of the property. The only attempt to contradict the proof of this gift was by the deposition taken orally of Eva Metcalf, widow of Spencer, who had died before this trial. She testified that she was present at the time of that gift and that her husband’s father, Fisher, handed her the mortgage and told her to hand it to Reuben and she did, but no notes were handed Reuben at that time. On cross-examinations and re-examinations, it turned out that she did not know that any notes went with the mortgage or had any connection therewith; that she supposed that by giving Reuben the mortgage Fisher was giving him $1,200 worth of property; that there was another mortgage securing $2,000 given by Silas and held by Fisher which was then given by Fisher to her husband, Spencer.' She testified that after Fisher died, her husband was going wvest to see Silas and said he would take along Silas’ notes, and got some notes and put them in his satchel and she did not think they were connected with the $2,000 mortgage. She finally testified that she did not know that the notes which Spencer put into his satchel were the notes described in this mortgage held by Reuben. Frank testified that when he saw the notes, the name “E. C. Dwelle” was written on the back of the notes and also the name “Fisher Metcalf,” and that the latter name was in the handwriting of his father, Fisher Metcalf. Frank testified that he and Reuben went from New York State to the World’s Fair at Chicago with an exhibit; that while there they went to Momence and stayed over night and Silas and they came back to Chicago the next day and that in the evening of that day, which was in October, 1893, they had a conversation in a hotel with Reuben, Silas and Frank present, at which these four notes were present in the possession of Reuben, in which there was a conversation between Reuben and Silas about them which he narrated, and in which the existence and validity and time of payment of these four notes were discussed, and that Silas then made a payment thereon to Reuben, and that Reuben indorsed one-fourth of said payment on each of said four notes and after-wards put the notes back in his pocket. Frank also testified that in March, 1899, by direction of Silas, he paid $25 of Silas’ money to Reuben on these notes and saw Reuben. indorse parts of said payment on each of said four notes at the home of Reuben in New York State. Frank testified that after- he moved to Momence he saw Silas almost every day and that he knew that these notes were never paid. He also testified that Reuben kept this trust deed and those notes in an old trunk in his sleeping room at his home. Frank Metcalf, Junior, son of Frank Metcalf, testified that on August 8, 1915, when he was about to leave Momence for New York, Silas handed him $10 and said he had had a letter from Reuben and he asked the witness to give the $10 to Reuben “to apply on the mortgage and notes he holds against me”; that he went east next day and went to Reuben’s home and handed him the $10, and told Reuben to apply it on the mortgage and notes Reuben held against Silas; that Reuben went to a trunk and took out four notes and the trust deed and made an indorsement “received August 14, $2.50” on each of the four notes. Except as to the testimony of Mrs. Eva Metcalf, the truth of this evidence is not contradicted, except by suggestions of its improbability. It is not shown that Silas ever had possession of these notes or the tjmst deed. We are of opinion that this evidence justified the decree that complainant was the owner of said notes and trust deed or mortgage.

There are indorsed on the back of the mortgage payments as follows: $110 on September 14, 1887; $25 on March 28, 1899; $10 on April 21, 1908; $10 on July 5, 1915; and $15 on September 8, 1917. The first indorsement is in the hand of Frank Metcalf and the rest in the hand of complainant. It is also claimed that $50 was paid in 1893 and $100 in 1909. An indorsement of partial payment on a note, made by the holder without the privity of the maker, is not of itself and uncorroborated, sufficient evidence of payment to repel the defense created by the statute of limitations. Connelly v. Pierson, 9 Ill. (4 Gilm.) 108; Wellman v. Miner, 179 Ill. 326; Roseboom v. Billington, 17 Johns. (N. Y.) 182. In the latter case English authorities are discussed and the qualification of the rule was “unless it be shown that it was made at a time when its operation would be against the interest of the party making it.” These considerations are to be borne in mind in passing upon the evidence of the making of said payments.

The first payment in question, $110, September 14, 1887, is proved by Frank Metcalf. He then lived in New York State and was buying horses in Illinois to ship to New York and he shipped one brown mare that belonged to his brother, Silas. Silas told him to sell that mare and sent him $90 and indorse the rest of the proceeds on these notes and mortgage. He sold the animal for $200, sent Silas $90 and paid to his father, Fisher Metcalf, then the owner of the securities, $110, and the witness indorsed $27.50 each on the four notes and the whole sum, $110, on the mortgage. There is nothing in the record to dispute this testimony. Frank" was acting as the agent' of Silas, and with that fact proved the indorsement by Frank is as effective as if made by Silas himself. The next payment is of $50 in October, 1893, in a hotel at the World’s Fair, Chicago. At that time Silas, Reuben and Frank being present, and Frank then the owner of these notes and mortgage, Silas said to Frank: “I suppose you are going to let that mortgage run as father requested to the end of my life.” Silas also, told Reuben that he was not able to pay the debt and that Reuben would run no risk, for the land was increasing in value. Reuben said that he would do that if Silas would make payment of interest from time to time, even in small amounts, so that the notes did not outlaw. Silas replied that he would do it if Reuben would let it run, and he then paid Reuben $50, and Reuben took the notes out of his pocket and indorsed $12.50 on each note and put the notes back in his pocket. An extension of the notes for the lifetime of the maker for a valuable consideration would be a valid agreement, because the time fixed must certainly arrive. Dorsey v. Wolff, 142 Ill. 589. We see no reason why this did not constitute an extension for the lifetime of Silas. If so, the statute of limitations cannot be a defense. But if it be supposed that there is some invalidity in that agreement, we must consider other payments. Frank testified that in 1899 he shipped another horse to New York for Silas and Silas directed him to pay a part of the proceeds on these notes and send him the balance; and he did sell the horse and for Silas paid $25 to Reuben and Reuben divided the payment among each of the four notes and he saw him make the indorsements on these notes. To rebut this defendant called two witnesses, one a tiler, who lived on, but did not work, Silas’ farm at that time, and another a painter and paperhanger, who lived on said farm at that time; and they each testified that they had no recollection of any such horse owned by Silas being on that farm and were positive no such horse was shipped east by Silas. They were testifying nearly 20 years after the event and their testimony was negative. Their occupation was not such as to require them to be acquainted with what stock Silas had. Frank did not testify that Silas took that horse from his farm. He may have obtained it elsewhere. We think the positive testimony of Frank should prevail, and this establishes a payment in 1899. Complainant claims a payment of $100 was made in 1909 out of $1,260 which Silas received for a railroad right of way through his farm. This was sought to be proved by Frank, and the final result of the proof is that he did not see $100 sent, but Silas told him that he was going to send $100 to Reuben. As Frank could not swear that $100 was sent and as Reuben was not a competent witness, there is no sufficient proof of this payment, and it is unnecessary to discuss the contradictory evidence on that subject.

Defendants argue that if these notes had been outstanding, Silas would have paid them out of the $1,260 received by him in 1909 for right of way. That was less than one-third of the sum then due on these notes. Silas had nothing else with which to pay them. He was old and feeble and had only the rent of the farm for his support, and had no child for whom to try to save the farm. This money would be very desirable for the emergencies of old age. If he knew his father had arranged that the mortgage should not be foreclosed while Silas lived, he would naturally keep this money for the needs of himself and wife. He finally gave $500 of it to Neil.

Frank Metcalf, Junior, testified that as he was leaving Momence for the old home in New York, Silas handed him $10 and asked him to take it to Reuben, who lived in New York State, and pay it to him and tell Reuben to apply it on the mortgage and these notes; that he did so pay it and Reuben got the notes and trust deed out of the trunk and made an indorsement of $2.50 on each note as of the date, August 14, 1915. The witness was the agent of Silas in making this payment and this evidence is entirely undisputed. The only criticism possible is that there is an indorsement of $10 on the mortgage as paid July 5, 1915. Whether that is another payment or a mistake in the date is not shown and is immaterial. This payment of August 14, 1915, was a little less than 3 years before the bill was filed and disposes of the statute of limitations as a defense, if it was so paid, as the evidence required us to hold. Another payment of $15 on September 8, 1917, and a previous payment of $10 on April 21, 1908 or 1909, indorsed by complainant on the mortgage seem to rest only on the evidence of complainant and therefore are not sufficiently established. We are clear that under the evidence this suit*is not barred by the statute of limitations. *

In their brief here appellants claim that this suit cannot be maintained because of section 11% of the Limitations Act [Callaghan’s 1916 Stat. ][ 7206(1)], in force July 1,. 1915, which requires, an extension agreement to be recorded within 5 years to keep such a mortgage as this alive. To this we think there are several sufficient replies: (a) This defense was not pleaded. It was therefore waived, (b) Appellee in his brief declares that the question was not raised in the court below. Appellants in their reply brief declare that it was, but do not point out any place in the record where that can be found. 'It is not shown in the abstract. As. the case is presented to us, this supposed defense was not raised in the court below. It was therefore .waived, (c) The statute gave the holder of such an incumbrance 5 years from July 1, 1915, in which to obtain an extension agreement. Silas died, this suit was begun, and tried, and reached a decree and the appeal was prosecuted to this court and the cause taken under advisement here, before the end of said 5 years. We think the statute is not now applicable to this case, (d) If the statute can mean that under all these circumstances it constitutes a defense now to this case in this court, we should be disposed to hold it invalid as so applied.

The decree ordered the defendants to pay the sum found due with interest and the costs within 10 days, and that in default thereof the mortgaged premises be sold. Defendants are not personally liable. It would have been better form to have provided that unless the defendants pay said sum within 10 days, the premises be sold. But there is no provision for a deficiency decree against defendants and it has been held that this is not a personal but an alternative decree. Gochenour v. Mowry, 33 Ill. 331; Glover v. Benjamin, 73 Ill. 42; Roberts v. Flatt, 142 Ill. 485; Pierce v. Coryn, 139 Ill. App. 445; Rubendall v. Tarbox, 200 Ill. App. 260. Defendants each gave an appeal bond in the sum of $200 conditioned to pay the amount of said decree. The order granting the appeal did not require any such bond. It was purely voluntary. It should have been for costs or, if the land was scant security for the debt, it should have been for costs and interest on the decree from the date of its rendition. Defendants should have asked the court to fix the conditions of the appeal bond, and did not do so.

The court directed that $415 be taxed as costs for the reasonable solicitor’s fees of complainant. The mortgage in question provided for foreclosure by the exercise of a power of sale, which required an advertisement for 4 weeks in a newspaper published in Kankakee county, and a sale by the mortgage and a deed of conveyance. The attorney’s fees allowed by said instrument were for drawing said advertisement, conducting said sale, preparing the deed and perhaps for the expense of distributing the fund. This mortgage was not foreclosed in that way. This' mortgage contained no directions concerning a foreclosure in equity. Solicitor’s fees for a foreclosure in equity are not provided by statute and can only be allowed if the contract so provides. There being no such provision in this mortgage that allowance cannot be sustained. It is not questioned that the decree is otherwise for the proper amount, if foreclosure can now be had. "

The decree will be so modified in the court below as to strike out the provision requiring attorney’s fees to be taxed as costs. In all other respects it is affirmed.

Modified and affirmed.


author: Mr. Justice Heard

text:
    R. C. Orr, Appellee, v. The Thompson Coal Company, Inc., Appellant.
    Gen. No. 6,813.
    1. Master and servant, § 836

      —What is basis of master’s liability for acts of servant. The master’s liability for his servant’s acts is based on the control or superintendence which he is bound to exercise over the servant for the safety of others, and on the maxim qui fac.it per alium facit per se.

      ' 2. Master and servant, § 836*—what is extent of rule of'respondeat superior. The rule respondeat superior arises out of the relation of superior and subordinate, is coextensive with it, and ceases when the relation itself ceases to exist.
    3. Master and servant, § 844*—what is test of master’s liability for servant’s negligence. The primary test to determine the master’s liability for the negligent act of his servant is whether the act was within the scope of his employment or whether the servant was at the time of the act at liberty from the service of his master and not engaged in doing his master’s business, but was pursuing his own interests exclusively.
    4. Master and servant, § 844*—when servant’s dinner hour is not within time of employment. The rule that a servant’s dinner hour during the working day is included in the time of employment does not apply when during that time he chooses to go into a dangerous place into which his employment does not necessarily carry him, or to go away from his place of employment on a private mission not connected with the employer’s business.
    5. Master and servant, § 844*—when servant is not within scope of employment. An employee cannot be acting within the scope of his employment unless he is acting in the course of his employment.
    6. Master and servant, § 846*—when act is without scope of employment. When a servant to whom the master has intrusted a vehicle with specific orders as to its use disobeys the orders and uses it for other purposes and an accident happens through his negligent act, such act of the servant is not in the course of the employment.
    7. Master and servant, § 846*—when driving of truck is without scope of employment. Where a servant-takes the master’s truck in violation of the master’s rules solely in order to go for his dinner and, while so driving it, injures the property of a third person through his negligence, such negligent act is outside of the servant’s scope of employment and the master cannot be held liable to the third person for the injury.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of facts.
    Opinion filed October 12, 1920.
    Hunter, Page & Kavanagh, for appellant.
    L. O. Eagleton and Roscos Herget, for appellee.

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

   Mr. Justice Heard

delivered the opinion of the court.

May 28, 1918, on a public street in the City of Peoria appellee’s automobile was struck and damaged by an auto-truck of appellant driven by one John Cone, an employee of appellant. Appellee brought suit against appellant to recover his damages occasioned thereby, basing his right to recovery on alleged negligence of Cone in driving the auto-truck. Appellant filed a plea of the general issue and an additional plea which set up that the driver of the auto-truck at the time of the collision was not acting within the scope of his authority; that said driver was driving the motor truck without appellant’s knowledge and contrary to appellant’s orders; that it was not a part of Cone’s duty to drive the auto-truck and that at the time of the accident Cone was engaged in business of his own and not the business of appellant.. A trial resulted in a judgment for $586.35 for appellee against appellant, from which judgment appellant has appealed.

On this appeal appellant does not raise any question as to the negligence of the driver of the auto-truck, nor as to the amount of damages, but rests its defense solely on the additional plea.

It is earnestly contended by appellant that admitting that Cone was an employee of appellant and that the auto-truck, which through the negligence of its employee caused the damages, belonged to appellant, under the evidence in the case it is not legally liable for such damages.

The liability of the master to answer for the conduct of his servant is founded on the control or superintendence Avhich the master is bound to exercise over his servant, for the safety of other persons. It is based on the;maxim qui facit per odium facit per se. The rule of respondeat superior, as its terms import, arises out of the relation of superior and subordinate, is coextensive Avith it, and ceases when the relation itself ceases to exist. Clark v. Fry, 8 Ohio St. 358, 72 Am. Dec. 590. The primary test to determine the master’s liability for the negligent act of his servant is whether the act was Avithin the scope of his employment or whether the servant was at the time of the act at liberty from the service of his master and not engaged in doing his master’s business, but was pursuing his oato interests exclusively. 26 Cyc. 1525; Arkin v. Page, 287 Ill. 420; Weiner v. Mairs (Mass.), 125 N. E. 149; Chicago Consol Bottling Co. v. McGinnis, 86 Ill. App. 38. In Arkin v. Page, supra, it was said: “The liability, if any, must rest upon the relation of master and servant between the driver of the automobile and the OAvner,—that is, upon the fact that the driver of the automobile was at the time engaged in doing the owner’s business.” In the same case it was said: “The owner of an automobile is not liable for an injury occasioned by the negligent use of his machine by his servant if the servant was at the time at liberty from the service of his master and not engaged in doing his máster’s business, but was pursuing his own interests exclusively. Reilly v. Connable, 214 N. Y. 586; Slater v. Advance Thresher Co., 97 Minn. 305.”

It is very frequently a most difficult question to determine whether the particular act for which the master is sought to be held liable was committed within the scope of the servant’s employment, as what acts are within the scope of the employment can be determined by no fixed rule, but are to be ascertained by the application of general principles to the facts of each particular case.

In the case for the purpose of testing appellant’s liability at this stage of the case, we must assume that Cone was employed as a driver for appellant although this question is the one to which most attention was given by appellant in the court below and in its argument here. With this assumption the evidence shows that on the day in question appellant was in the operation of a coal yard at East Peoria, a village across the river from Peoria; that for the purpose of delivering coal it possessed a 2% ton auto-truck; that John Cone was an auto-truck driver for appellant; that there were posted in the premises where Cone worked rules of appellant with reference to the driving of trucks; that one of these rules was that no employee was to take a truck out on his own business except on orders fom appellant’s president and general manager; that at noon on the day in question, without orders from any one, Cone took the truck in question for the sole purpose of going to Peoria for his dinner; that he never had taken the truck for that purpose prior to that time; that the truck had no load of any kind; that while on his way to dinner, through his negligence, the truck collided with appellee’s automobile and occasioned the damage for which judgment was rendered.

It is contended by appellee that going to lunch by an employee is an incident of his employment and that the dinner hour, although not paid for by the employer, is included in the time of the employment. It is true that the general rule is as stated, but this rule does not apply when an employee chooses to go to a dangerous place where his employment does not necessarily carry him and when he incurs a damage of his own choosing and one altogether outside any reasonable exercise of his employment. Nor does it apply where an employee leaves his place of employment and his fellow workmen to go elsewhere on a mission of his own, not connected with the employer’s business. Nelson R. Const. Co. v. Industrial Commission, 286 Ill. 632; Northern Illinois Light & Traction Co. v. Industrial Board of Illinois, 279 Ill. 565. An employee cannot be acting within the scope of his employment unless he is acting in the course of his employment.

There have been several recent cases where the term “course of his employment” which occurs in the Workmen’s Compensation Act has been construed. Dietzen Co. v. Industrial Board, 279 Ill. 11; International Harvester Co. v. Industrial Board, 282 Ill. 489;. N. K. Fairbank Co. v. Industrial Commission, 285 Ill. 11; Central Garage of La Salle v. Industrial Commission, 286 Ill. 291; Chicago, R. I. & P. Ry. Co. v. Industrial Commission, 288 Ill. 126; United Disposal & Recovery Co. v. Industrial Commission, 291 Ill. 480; Steel Sales Corporation v. Industrial Commission, 293 Ill. 436; Weis Paper Mill Co. v. Industrial Commission, 293 Ill. 284; Schweiss v. Industrial Commission, 292 Ill. 90. In the latter case it was said: “A workman is said to be ‘in the course of his employment when within the time covered by the employment he is doing something he might reasonably do while so employed at a place where he might reasonably be while in the employment. The test is triple, and relates to time, conduct and place. ’ ” In N. K. Fairbank Co. v. Industrial Commission, supra, it was said: “The employer is liable for compensation only for an injury which occurs to the employee in the course of his employment or incidental to it. When work for the day has ended and the employee has left the premises of the employer to go to his home the liability of the employer ceases, unless after leaving the plant of the employer the employee is incidentally performing some act for the employer under his contract of employment.”

A distinction has been drawn between an employment where a vehicle is intrusted to a servant to be used entirely in his discretion and an employment when the servant has specific orders as to the mode of dealing with the vehicles. 26 Cyc. 1537. In the latter case when the employee disobeys his orders and uses it for a purpose other than intended by the employment and an accident happens through the servant’s negligent act, the act of the servant is held not to be in the course of the employment. Martinelli v. Bond (Cal.), 183 Pac. 461; Goldberg v. Borden’s Condensed Milk Co., 227 N. Y. 465, 125 N. E. 807; Rolfe v. Hewitt, 227 N. Y. 486; Dietzen v. Industrial Board, supra; Central Garage of La Salle v. Industrial Commission, supra; United Disposal & Recovery Co. v. Industrial Commission, supra. In the latter case where Taylor, a truck driver of plaintiff in error, was injured and Peacock and Cramer, two of its employees, were killed while on one of plaintiff in error’s trucks driven by Taylor on their way to work at plaintiff in error’s plant, the court held: “Taylor was instructed to keep the truck in Eockford and had no authority to keep it in Cherry Valley. When he disobeyed instructions and chose to select a route that better suited his convenience he was acting outside his employment, and the injury which he received and which resulted in his death did not arise out of his employment. ' Peacock and Cramer were not killed in the course of their employment, nor did their death arise out of their employment. There was no agreement by either of plaintiffs in error to furnish them transportation from Cherry Valley to the farm. Without the knowledge of plaintiffs in error they arranged with Taylor to haul them over the Perryville route, and they niust be held to have assumed the consequences of their own act. While arrangements had been made for them to ride on the trucks from Rockford to the farm, it was no part of the contract of hire that they would be furnished transportation from their homes to the place of their employment.”

Applying the principles above announced to the facts of the present case, we must hold that when Cone took the truck in question in- violation of appellant’s rules, solely for the purpose of going for his 'dinner, that his negligent acts which caused the damages to appellee’s automobile were outside the scope of his employment and that at the time of the accident he was not engaged in doing his master’s business and that therefore the doctrine of respondeat superior does not apply and appellant is not liable for such damage.

The judgment is reversed.

Reversed with finding of facts..

Finding of facts. We find that at the time of the accident Cone, the driver of appellant’s truck, was not acting within the scope of his employment and that at such time he was' not engaged upon appellant’s business.

Niehaus, J., took no part.