text:
    Dominick Balsewicz, Sr., Administrator, Appellee, v. Chicago, Burlington & Quincy Railway Company, Appellant.
    Gen. No. 4,917.
    1. Trespasser—when person crossing upon right of way not. A person who leaves a street crossing and passes around upon the right of. way because of cars blocking the street passage, does not become a trespasser as a matter of law.
    2. Release—when by administrator void. A release of liability for negligently causing death made by an administrator who obtained letters without authority is void.
    3. Pleading—what essential to question authority of administrator. The representative capacity of an administrator suing for negligently causing the death of his intestate can only be questioned by special plea.
    4. Evidence—what may establish wilfulness. Failure to observe a speed ordinance may establish wilfulness; and an instruction in the negative of this proposition, disapproved.
    5. Assignments of error—when deemed waived. Assignments of error not argued are deemed waived.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Bureau county; the Hon. Samuel C. Stougii, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed August 10, 1908.
    Rehearing denied October 13, 1908, and opinion modified.
    Cairo A. Trimble, for appellant; Chester M. Dawes and J. A. Connell, of counsel.
    Pomeroy & Demerath and John L. Murphy, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Main street in Kewanee runs north and south and is crossed nearly at right angles by the tracks of appellant, the Chicago, Burlington and Quincy Railway Company. South of the railroad, and east of Main street, are the works of the Western Tube Company. On April 29, 1905, there were about 420 people employed at the Tube Works who were let out at ten minutes to twelve, and at twelve m., many going north across these tracks to their dinner. South of the main tracks were two passing tracks and next to the Tube Company buildings, a switch, track, all parallel with the main tracks. Some little distance farther south were two tracks running diagonally from the railway into the Tube Company plant. North of all these tracks and south of the last of these diagonal tracks were gates across Main street. There was a twenty foot space in which there was a sidewalk north and south on each side of Main street. There was an arm of the gate closing the west sidewalk of Main street when the gates were down on the south side of the tracks, but the corresponding arm on the east side of the street, south of the railroad tracks, was gone, and there was no gate protection for the east twenty feet of the street south of the tracks, including the sidewalk. These gates were operated from a tower situated sixteen feet west of the west line of the street. Just before 12 o’clock on April 29, 1905, a switch engine with several cars attached was across Main street on the south one of the tracks that are parallel. There was proof that said engine and cars were standing still upon and over the crossing, and other proof that they were moving slowly. If the jury found that they were standing still upon the street crossing, this court would not be justified in disturbing that conclusion after it has been approved by the trial judge who also-saw the witnesses. At about noon a west-bound passenger train came in on the north main track and stopped at the depot two blocks west of Main street. About this time, Dominick Balsewicz, the deceased, came out of the Tube Works where he was employed, went north on the east sidewalk of Main street, and passed the place where the south gates were. At that time the gates were not down, but were lowered before a man behind Turn reached them. When deceased reached the switch train, he turned west, ran around the west end of the switch engine, and then northeasterly towards the street on the opposite side. The tower man called to him to stop, and another railroad man caught hold of him and tried to stop him. Deceased did not understand English, and appears to have been frightened. He ran in front of the approaching passenger train and was struck by the pilot or pilot beam, and thrown to a point sixty feet west of the street, dying almost instantly. July 27,1905, letters of administration on the estate of the deceased were issued by the County Court of Bureau county to Dominick Balsewicz, appellee, who instituted this suit against appellant, the Chicago, Burlington and Quincy Bailway Company, in the Circuit Court of said county to recover for the loss to the next of kin of the deceased, who were appellee, the father, and the mother, with numerous brothers and sisters. The declaration contained eight counts, and alleged illegal blocking of the crossing by a switch train; violation of an ordinance of the city of Kewanee prohibiting railroad companies from blocking crossings by stopping engines or cars thereon longer than five minutes unless absolutely necessary, and in no case longer than ten minutes; wantonness in running at a high rate of speed, to wit: forty miles per hour; violation of an ordinance of the city of Kewanee prohibiting the speed of freight trains at more than six miles, and passenger trains at more than ten miles per hour; failure of defendant to warn persons using crossing of the approach of trains, and failure to maintain gates or effective system of signals of danger at crossings. Each count averred that deceased was in the exercise of due care for his own safety. The allegation in regard to blocking a crossing for more than ten minutes was dismissed. Appellant filed a plea of not guilty. A trial was had resulting in a verdict for $1,500 for appellee. A motion for a new trial was denied, judgment was entered on the verdict for $1,500 and $33.55 interest which accrued because of the delay in hearing the motion for a new trial. The company prosecuted this appeal.

Appellant’s proof is, that the switch train was moving west and continued to move west after the accident. Appellee’s testimony is that it went back east after the accident and cleared the street. There was as much evidence tending to show that it went east as that it went west. Deceased was a boy of but eighteen years and had been in this country but one year, and did not speak or understand English, and may not have understood the well-meaning efforts of the railway men to warn him and may have been confused and frightened by them. The evidence is conflicting as to whether he ran east or west of the tower. If he ran east, he did not go far beyond the street line. This was a public street crossing, the only crossing for two blocks, and was used by many people at this time of day. Appellee’s proof shows that the train was running at the rate of twenty-five to forty miles per hour as it crossed Main street, and appellant’s proof shows that it was running from fifteen to twenty miles per hour. The fact as shown by the evidence, that deceased was thrown a distance of sixty feet indicates that the speed was great. It was running in violation of the ordinance declared on and the gates afforded him no warning.

Whether the crossing was obstructed in violation of the ordinance or not, and whether, the train was being driven by appellant’s servants at a reckless and wanton rate of speed, as charged in the declaration, and whether deceased was in the exercise of ordinary care for his own safety, were contested questions of fact for the determination of the jury. These, they found in favor of appellee and their finding, which in our opinion is supported by a preponderance of the evidence, should not be disturbed except for some material error of law by which they may have been misled.

It is contended that deceased became a trespasser when he left the street, and having been struck west on the right of way, no recovery can be had unless appellant was guilty of wanton conduct, and that there is no ground for that holding. In Chicago Junction Co. v. McGrath, 107 Ill. App. 100, a case in which the deceased stepped off a street crossing upon the right of way of the railway company to go around cars standing upon the crossing, and was struck by cars suddenly kicked back, receiving injuries from which he died, the court held that a private individual is not by law compelled to stop and wait at a railroad crossing until the railroad company has removed cars which partly blockade it and that he has .the right to pass around the end of the cars, and in so doing does not become a trespasser, nor put himself outside the protection of the law if he steps over the line of the street onto the railroad yards. This case was appealed to the Supreme Court where it was held that the question whether deceased was guilty of negligence was properly submitted to the jury. 203 Ill. 511.

Appellant introduced in evidence over appellee’s objection, letters of administration dated June 5, 1905, issued by the Probate Court of Cook county on the estate of deceased to one Joseph T. Wachowski, and a receipt for $100 received from appellant signed by said Wachowski as administrator of the estate of deceased in consideration of which he released all his claim as administrator, and that of next of kin of deceased, growing out of the death of said deceased on account of said accident. Appellant asked the court to give an instruction to the effect that such release barred a recovery, which the court refused to do, which ruling appellant contends was error. The proof is undisputed that the father, mother, brothers, and sisters of deceased lived in Bureau county at the time that letters were issued by the Probate Court of Cook county, and that deceased was a minor and had lived with his parents until about three weeks before the accident, when he went to Kewanee to secure work. Deceased had never lived in Cook county, had no property in that county, none of his next of kin lived in that county, and none had consented that letters of administration should be granted to Wachowski, and just how he broke into the administration is not apparent, and his good faith may reasonably be questioned. The parents and next of kin of deceased were entitled by law to the exclusive privilege of taking out letters of administration during the first sixty days after the death of deceased, and the Cook county letters issued within that time usurped the rights of next of kin of deceased and were void. Moreover, appellee’s representative capacity could only be attacked by special plea. Union Railway & Transit Co. v. Shacklet, 119 Ill. 232; C. & A. R. R. Co. v. Smith, 180 Ill. 453. Hence there was no error in the refusal of the instructions that the release barred a recovery.

Complaint is made of appellee’s third instruction which reads as follows:

“If you believe from the evidence that at the time and place in question Dominick Balsewicz, Jr., while walking northward on the street in question, arrived at the crossing in question and found it blocked by a locomotive engine attached to some cars of defendant, standing across the street there, and that thereupon he went a short distance across the west line of said street onto the private lands of said defendant and proceeded around the west end of said train of cars and engine, with a view to resume his journey along said street after passing said train so standing there, and that while so doing, he was exercising ordinary care for his safety, under all circumstances, then you are in-' structed that in so going around the end of said train he did not pnt himself outside of the protection of the law nor become a trespasser. ’ ’

In view of what we have already suggested, and the holding in Chicago Junction Ry. v. McGrath, supra¡ we are of the opinion that there was no error in this instruction.

Complaint is made of the refusal of an instruction which read as follows:

“You are further instructed, that wilfulness or wantonness, in the infliction of an injury, is not chargeable against a Railroad Company merely by reason of the failure of a Railroad Company to comply with the ordinance of the City, as to the limit of speed of its trains, within the corporate limits where such injury may occur.”

It is not true that a failure to comply with an ordinance cannot establish wilfulness and wantonness against a railroad company. It may or may not prove wantonness, and wilfulness. For example, if it had appeared from the evidence that the train that killed the deceased had run at a speed of sixty miles per hour over this crossing, it would have shown wilfulness and wantonness. There was no error in the refusal of this instruction.

Appellant complains of the refusal of other instructions, but these are the only ones argued, and the errors as to the others are therefore waived. We will add, however, that they are all addressed to the proposition that deceased necessarily became a trespasser when he went upon appellant’s right of way in order to pass around the switch train, and this position is untenable, as we have already held.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Martin D. Malloy, Appellee, v. Kelly-Atkinson Construction Company, Appellant.
    Gen. No. 4,993.
    1. Master and servant—how question of fellow-servants to he determined. Where the evidence tends to show that an employe of the master is a vice-principal, the question is one to be determined by the jury; also, if such employe acted in a dual capacity, it is for the jury to say whether a particular act was that of a vice-principal or fellow-servant.
    2. Master and servant—what not assumed risk. A servant does not assume a danger of which he has no knowledge or means of knowledge; risk of injury through the negligent order of a foreman is not assumed by the servant.
    3. Master and servant—how question of assumed risk determined. Where the evidence is conflicting the question whether the risk is assumed is to be determined by the jury.
    4. Verdict—when not excessive. A verdict, of $3,000 rendered in an action for personal injuries is not excessive where it appears that the plaintiff’s arm was broken and his wrist dislocated, that he suffered pain, incurred expense in being treated, lost two months’ time and the use of three fingers of his right hand, it appearing that such plaintiff was a structural iron workman earning $4.85 per day prior to the accident.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    Kremer & Greenfield, for appellant.
    B. J. Wellman and E. J. Conley, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

In October, 1906, the Kelly-Atkinson Construction Company, appellant, was erecting a steel railroad bridge in the city of Chicago, near which were two railroad tracks running east and west, elevated from six to eight feet. The completion of the bridge necessitated the erection of a wooden tower, the timbers for which, were brought on cars and thrown off on the outside of the south track, and when needed were lifted by a line which ran through a pulley fixed to the tower of the bridge about 60 feet above the center of the south track. The line was fastened about the middle of the timber and operated by an engine called a “nigger head,” which stood on a level with the railroad tracks. The timbers had to be moved from the ground to the tower without obstructing certain trains. On October 26,1906, while appellee and three of appellant’s other employes, including Brown the foreman, were removing a timber twelve by twelve and thirty feet long, from the ground to the tower, an approaching train necessitated their placing it between two tracks temporarily. The space between the tracks was seven or eight feet wide, in which was a depression of two or three feet, across which a timber three by ten, or four by eight, had been laid, the ends resting upon the earth at the edge of the tracks. In moving the timber over between the tracks it was raised two or three feet. Two men took hold of one end, swung it around between the tracks and rested their end on the deck of the bridge. Appellee took hold of the other end, swung it over between the tracks,, by pushing against it with his hands and breast, when Brown, the foreman signalled “all off” to the man at the “nigger head,” and the machinery was released, and the timber dropped on the cross piece, which broke, and appellee fell into the depression with the end he was breasting in such a way that the weight of his body caused a fracture of his left arm and the dislocation of his wrist.

On March 26, 1907, he brought this suit in the Circuit Court of Will county to recover damages for such injuries. The original declaration consisted of one count which averred that when appellee was injured he was engaged in moving a timber for appellant which had been raised by machinery under the direction of appellant’s foreman and vice principal, and while he ■’was pushing on the timber close to or over a certain excavation the foreman negligently ordered the machinery to be instantly released without warning to appellee, thereby causing the timber to drop, and that by reason of such negligence appellee was injured. The declaration did not allege that the foreman was not a fellow-servant of appellee, and omitted all reference to the cross piece which broke and caused the timber to fall into the depression. There was a plea of not guilty, and a verdict for appellee for $5000. A motion for a new trial was made. Thereafter, by leave of court, over appellant’s objection, appellee filed an additional count which averred that the plank, three by ten, placed over the depression to hold the timbers was of insufficient strength to hold said timber, and that said foreman well knew or should have known it was dangerous and unsafe to drop said timber upon said plank in the position appellee was standing, and that the timber, together with appellee, fell into said excavation, breaking through said plank, and that because of said negligence in ordering said machinery released and said beam to be dropped, appellee was injured. On the argument of the motion for a new trial the court required appellee to remit $2000 from the verdict, which was done. The motion for a new trial was denied, judgment was entered on the verdict for $3000 and the company appealed.

It is urged that there can be no recovery because Brown, in giving the “all off” signal was not performing the act of a vice principal, but that of a fellow-servant. All the witnesses testified that he was appellee’s foreman, and no objection was made to such testimony. The proof shows that he gave orders to appellee and to the man in charge of the “nigger head,” relative to handling the timber, and also that he frequently worked with the men in handling the timbers. The question whether Brown at the time of the accident was a vice principal or a fellow-servant was one of fact for the jury. Goldie v. Werner, 151 Ill. 551; C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330. Although he was acting in a dual character, the question whether the particular act of signalling the man in charge of the nigger head “all off” was the act of a fellow-servant of appellee, was also a question of fact for the jury. Mobile & Ohio Co. v. Massey, 152 Ill. 144, C. & E. I. R. R. Co. v. Driscoll, supra. If the timber was dropped by reason of the authority which Brown exercised as vice principal, the fact that he worked with appellee and the other men more or less did not exonerate the master from liability for the former’s negligence in the exercise of his authority over the others. Chicago & Alton R. R. Co. v. May, 108 Ill. 288; Pittsburg Bridge Co. v. Walker, 170 Ill. 550; Offutt v. World’s Columbian Exposition, 175 Ill. 472; Metropolitan West Side Elevated Railroad Co. v. Skola, 183 Ill. 454; Norton v. Nadebok, 190 Ill. 595; Graver Tank Works v. O’Donnell, 191 Ill. 236.

It is argued that appellee assumed the risk. The evidence shows that an “all off” order had never before been given at that place under such circumstances. One of the first principles of the assumption of risk is knowledge of the danger. Appellee could have no knowledge that he would be subjected to danger through a negligent order of the foreman. Whether he assumed the risk or not was also a question of fact for the jury.

The original count averred negligence in giving the order “all off” which meant to let the timber fall instantaneously. The additional count was based on the proposition that the plank across the depression was of insufficient strength if the timber dropped thereon suddenly, and for that reason it was negligence to cause the timber to be suddenly dropped. We are of the opinion that the judgment on the question of appellant’s liability can be sustained under the original declaration. If the additional count was necessary to constitute a cause of action its averments were not at variance with the evidence introduced on the trial, and it was proper to permit it to be filed.

It is argued that the damages are excessive even after the remittitur of $2000 ordered by the trial court. The evidence is undisputed that appellee’s arm was broken and wrist dislocated. He suffered pain and incurred some expense in being treated and lost two months time and had lost the use of three fingers of his right hand. He was a structural iron workman, earning $4.85 per day, previous to the accident. His ability to do portions of his former work must necessarily be somewhat impaired. A doctor, after an exam-' ination of appellee at the time of the trial, testified that the condition of the hand might or might not be relieved by an operation, and that for any work requiring the skilful use of both hands, the injured hand was practically worthless. It is true that the evidence does show that appellee had, at times since the injury, earned nearly as much money as he did before, but it was not at his regular employment.

The judgment is affirmed.

Affirmed.


text:
    Nels Granquist, Appellee, v. Western Tube Company, Appellant.
    Gen. No. 4,997.
    1. Mechanic’s liens—effect of claiming upon property not chargeable. The right to a lien upon property chargeable will not be defeated because a claim for lien has been made against more land than is subject thereto if such claim has not been fraudulently interposed and has not misled or injured any one.
    2. Mechanic’s liens—when payments to contractor not lawful. As against a subcontractor, payments made to the contractor by the owner without having obtained the statutory statement, are unlawful and will not defeat the unpaid claim of a subcontractor.
    3. Mechanic’s liens—award of solicitor’s fees improper. The statute which authorizes the allowance of solicitor’s fees to a mechanic’s lien claimant is unconstitutional. Manowsky v. Stephan, 233 Ill. 409, followed.
    4. Mechanic’s liens—effect of failure to make parties. The failue of a lien claimant to join a necessary party will not defeat the lien claimant where the objection is not urged by the defendant in apt time.
    5. Mechanic’s liens—when suit brought in apt time. Held, that under the facts of this case the action to enforce the lien claim was brought in apt time.
    6. Pasties—when objection of non-joinder comes too late. An objection of the non-joinder of parties in interest comes too late when first raised on appeal.
    7. Decree—to whom award of solicitor’s fees should be made. Where the statute provides that solicitor’s fees may, in a particular instance, be awarded to a party, it is improper to make the award in favor of the solicitor of such party.
    Mechanic’s lien. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed in part, reversed in part.
    Opinion filed October 14, 1908.
    Knapp, Haynie & Campbell, Charles K. Ladd and Mark Breeden, Jr., for appellant.
    Charles E. Sturtz and Wm. C. Ewan, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This is an appeal from the Circuit Court of Henry county to review a decree of that court allowing Neis Granquist, appellee, a subcontractor, a mechanic’s lien on property owned by appellant, the Western Tube Company.

On July 17, 1906, Granquist filed a petition in said court against the Western Tube Company, and Frederick H. Mathews and Charles F. McMullen, co-partners doing business as the Mathews Construction Company, to establish and foreclose a subcontractor’s mechanic’s lien. The petition alleged that the Mathews Construction Company and the Western Tube Company entered into a written agreement on June 28, 1905, for the construction of an office building according to certain plans and specifications to be completed on or before December 1, 1905, for the sum of $16,400 with a provision for $5 liquidated damages for each day thereafter the work was not completed. The contract which was attached to the petition did not describe the premises where the building was to be located, but called it an office building or extension according to certain plans, specifications and drawings, and referred to a brick wall at the south of the old building. The petition further alleged that on June 29,1905, the Mathews Construction Company entered into an agreement with appellee, by the terms of which appellee was to furnish the necessary material and labor for all the brick and mason work necessary for the construction of said office building for $7750; and that in pursuance of said agreement said office building was built on lots 1 and 2 in block 13, of the original town, now city of Kewanee; and that the petitioner furnished the material and labor for all the brick and mason work required for the construction of said office building in accordance with the plans and specifications, and fully completed his work; and that the time for the completion of said building was by the consent of appellant and the Construction Company extended from December 1, 1905, to June 1, 1906, and that he completed his work on May 18, 1906, which was accepted by the Construction Company and appellant; that there was then due him for said work and material $1194.74; and that on July 21, 1906, within sixty days after the completion of his work, he caused a written notice of his claim to be served upon appellant, and that $166.11 of the amount so due was for extra work and materials furnished at the request of the Construction Company and appellant, and that there was due him at the time of filing this petition $760.08. The petition stated that Porter and Trask claimed to have a lien on said premises, but that it was subject to the rights of appellee. Appellant answered the petition, and admitted that it had entered into a contract with the Mathews Construction Company, substantially as stated in the petition, and that appellee entered into a contract with the Mathews Construction Company as stated in the petition but denied that said building was completed within the time specified in the contract, or completed at all, or accepted, or that appellee furnished extra materials for said building for which it was to pay any sum, and denied that any sum was due appellee on account of said contracts, or that appellee had a right to a claim or lien on said premises on account of said work. November 24, 1906, appellee filed a general replication to said answer. The petition was taken as confessed against Mathews and McMullen, and the cause was referred to the master to take the proofs and report the same into court with his conclusions. The master heard the proofs and reported that appellee was entitled to a lien on lots one and two. To the master’s report, appellant filed a number of objections, one of which was that it appeared from the evidence that no part of the building was on lot one, but that it was on lots two and three. This objection was held to be good and the master amended his report and found that the lien should be allowed on lot two, and overruled appellant’s other objections. There was a hearing before the court upon the objections to the master’s report. The court approved the finding of the master and entered a decree granting appellee a lien for $760.08 on lot two and $76 to appellee’s counsel as attorney’s fees. From this decree the Western Tube Company appealed.

Appellant argues first, that the decree was erroneous because it found that a lien should be allowed on lot two, whereas the petition alleged that the building was erected on lots one and two, on the ground that appellee was bound by the allegation in the petition and that to entitle him to recover, he must prove the whole allegation; and that appellee failed in this because the evidence did not show that the building was erected on lots one and two, but did show that it was erected on part of lot two, on the alley between lots two and three, and on a part of lot three.

Counsel for appellant contends that a subcontractor can have a lien the same as the original contractor under section one of the Mechanic’s Lien Act of 1903, which provides that a lien may be had upon the whole of such lot or tract of land and upon the adjoining or adjacent lots or tracts of land of such owner, constituting the same premises and occupied or used in connection with such lot or tract of land as a place of residence or business; and in case the contract relates to two or more buildings or two or more lots or tracts of land, upon all of such lots and tracts of land and improvements thereon for the amount due with the interest thereon, and that this means a lien must be taken upon all the premises occupied by the building or none.

We cannot agree with counsel on this proposition. In Sorg v. Pfalzgraf, 113 Ill. App. 569, a suit to enforce a mechanic’s lien, the bill located the house on lots nine and ten. On the trial it developed that it stood on lots eight and nine, and not on lot ten. It was then too late to enforce a lien against lot 8. The court ordered a decree against lot 9 only. We there said, the owner cannot be permitted to defeat the lien upon his land which the law has given the builder, simply because the builder might have obtained a lien upon more "of the owner’s land. The fact that a lien is claimed on more land than is subject thereto does not defeat the lien, if it does not mislead or injure anyone, and if it is not done fraudulently. White Lake Lumber Co. v. Russell, 22 Nebr. 126; Sorg v. Pfalzgraf, supra.

Appellant urges that Porter and Trask should have been made parties defendant, which was not done, although the petition stated that they had an interest in the premises involved. The statement in the petition was notice to appellant that Porter & Trask might be interested in the disbursement of the fund. If they were necessary parties appellant had adequate notice of such fact, and should have raised the question of non-joinder in the court below, or, if, as appellant contends, they had a suit for a lien then pending on the same premises, it could have moved the court that the causes be consolidated. This was not done, and the question was first raised on the final hearing. "When thus delayed, such an objection does not receive favor from the court, and in such cases to be of avail it must appear that the decree will have the effect of depriving the appellant of its legal rights. Pease v. Chicago Crayon Co., 235 Ill. 391.

The original contract required the building to be completed by December 1, 1905. It was not completed on that date. It was completed April 16, 1906, when, the proof shows, appellant first demanded a statement from the original contractor. The statement was furnished and it showed the claim of appellee and the amount to become due, and therefore it was unnecessary for appellee to serve upon appellant notice of his claim. Sec. 24, Mechanic’s Lien Act. Prior to this appellant had paid the original contractor the sum of about $12,000 without first obtaining the statement required by Sec. 24. These payments were not lawful as against appellee. Sec. 32, Mechanic’s Lien Act. The contract was not entirely finished as to appellee’s work until May 18, 1906. On July 3, 1906, appellee served on appellant the subcontractor’s notice as required. It is urged by appellant that this notice should have been served within sixty days after December 1, 1905, and therefore there could be no lien under the contract. The proof shows that appellant, when it was found the building was not going to be completed by the time mentioned in the contract, took no steps to forfeit the contract, but said to the contractor to go ahead, and it is apparent from the record that there was an implied extension of the time for its completion. If this be true, and as the statement of April 16, 1906, correctly stated appellee’s claim, it would seem that no notice was necessary, but it is clear that appellee did serve a notice, the form of which is not objected to, within sixty days after he completed his work. We are therefore of the opinion that he did not lose his right to a lien by reason of failure to give notice.

Respecting the extras claimed by appellee, the evidence of the architect shows that the claim for extras was made by the original contractors, and adjusted with appellant. Appellant should have considered in that adjustment that appellee was furnishing part of the extras and should have kept enough out of the settlement to indemnify it if compelled to pay subcontractors, if a lien was sought for extras, but it did not do this, consequently it cannot now complain.

The court adjudged that the property owners should pay the lien holder’s attorney the sum of $76 as fees, in accordance with a provision made by the last sentence of section 17 of the Mechanic’s Lien Act (Par. 31), which provides, “In all cases where liens are enforced, the court shall, in its discretion, order reasonable attorneys’ fees taxed as a part of the costs in favor of the lien creditor. ’ ’ Since the rendition of judgment in this case in the court below, the Supreme Court in Manowsky v. Stephan, 233 Ill. 409, said, referring to this sentence, “We have reached the conclusion-that the sentence in question is in violation of the State constitution * * *. It is special legislation. It confers a right upon persons entitled to liens by virtue of the Mechanic’s Lien law, and confers that right upon no others * * *. We regard the last sentence of the section of the statute above set out as in conflict with section 22 of article 4 of the constitution of the state.” The decree directed the attorney’s fees to be paid direct to Charles E. Sturtz, attorney for appellee. If an allowance for attorney’s fees had been proper, the decree should have directed it to be paid to the party to the suit who had incurred the liability for solicitor’s fees. It follows that the allowance for solicitor’s fees, designated as attorney’s fees in the decree, must be reversed. No other harmful error appearing in the record the decree, in all other respects, is affirmed, one half of the costs of this court to be paid by appellee.

Affirmed in part, reversed in part.


author: Mr. Justice' Willis

text:
    Porter & Trask, Appellees, v. Western Tube Company, Appellant.
    Gen. No. 4,998.
    This case is controlled by the decision in Granquist v. Western Tube Company, ante p. 230.
    Mechanic’s lien. Appeal from the Circuit Court of Henry county; the Hon. Emeby C. Graves, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed in part, reversed in part.
    Opinion filed October 14, 1908.
    Knapp, Haynie & Campbell, Charles K. Ladd and Mark Breeden, Jr., for appellant.
    Pomeroy & Demerath, for appellees.
   Mr. Justice' Willis

delivered the opinion of the court.

This is an appeal from the Circuit Court of Henry county to review a decree of that court allowing appellees, James Porter and Harry W. Trask, subcontractors, a mechanic’s lien on property owned by appellant, the Western Tube Company.

On June 20, 1906, appellees filed in said court a bill against the Western Tube Company and Frederick H. Mathews and Charles F. McMullen, co-partners, doing business as the Mathews Construction Company, to establish and foreclose a subcontractors’ mechanic’s lien for lumber and building materials furnished on a building erected on lots one and two, of block thirteen, of the original town, now city of Kewanee. The bill alleged that on or about June 28, 1905, appellant entered into a written contract with the Mathews Construction Company to erect an office building on its premises according to certain plans and specifications, a copy of which contract was attached to the bill. The contract provided that the building was to be constructed according to said plans and specifications and finished by Decernber 1, 1905, and in the event of failure to complete the building by that date, unless delayed by certain causes therein enumerated, a forfeiture of $5 per day was stipulated for. The contract price for the construction of said building was $16,400. The bill further alleged that on June 29, 1905, appellee entered into a verbal subcontract with the Mathews Construction Company to furnish the lumber and mill work necessary for the execution of said contract for the sum of $3350 and to furnish such extra material as was needed, the price therefor not to exceed the fair market value of ‘the same, to be delivered and payment made therefor, within three years from the furnishing of the first of such material, and that in accordance with the terms of said subcontract they delivered upon appellant’s premises between July 3,1905, and March 9,1906, the material so contracted for, and also delivered between June 29, 1905, and February 21, 1906, extra material to the amount of $621.17; and that said office building in the construction of which such material was used, was constructed on lot one and a part of lot two in block thirteen, in the original town, now city of Kewanee, of which appellant was the owner, and that there was due and unpaid on said contract, $1717.73, and that on April 16, 1906; the Mathews Construction Company rendered to appellant a verified statement in writing of the names of all parties furnishing labor or materials and of the amounts due or to become due each, which was delivered to appellant within sixty days after the final delivery of the materials by appellees. Appellant answered the bill and admitted the contract between it and the Mathews Construction Company, substantially as set up in the bill, but denied that the Construction Company ever completed said building and alleged that it was not completed according to the contract, and that said contract had not been performed by the Construction Company, and admitted that it owned the premises, and disclaimed knowledge as to the contract between appellees and the Construction Company and its indebtedness to appellees, and denied that legal notice was served on it, stating the amounts due and owing to the said Construction Company, and the names of the persons furnishing labor or material for the construction of said building, and stated that it had no knowledge that appellees furnished material, and that it was not advised and could not state whether appellees furnished material and labor in the construction of the buildings, and denied that it was indebted to appellees or that they were entitled to a lien. Appellees filed a general replication to appellant’s answer, and the bill was taken as confessed as to Mathews and McMullen. The cause was referred to the master to take proof and report the evidence and his conclusions of law and fact. The master heard the proof and reported that appellees were entitled to a lien on lots one and two of block thirteen of the original town, now city of Kewanee, on account of materials furnished in the erection of the building thereon.

To this report, appellant filed a number of objections, one of which was that it appeared from the evidence that no part of the building was on lot one, but that it was on lots two and three. This objection was held to be,good and the master amended his report and found that the lien should be allowed on lot two and overruled appellant’s other objections. There was a hearing before the court upon the master’s report and the exceptions thereto. The court approved his finding, and entered a decree granting appellees a lien for $1717.73 on lot two and $171.77 to appellees’ counsel as attorney’s fees. From this decree the Western Tube Company appealed.

Appellant first contends that the decree is erroneous, because it found that a lien should be allowed on lot two whereas the bill alleged that the building was erected on lots one and two, on the ground that appellees w.ere bound by the allegation in the bill, that to entitle them to recover they must prove the whole allegation, and that appellees failed in this because the evidence did not show that the building was erected on lots one and two but did show that it was erected on lot two, on the alley between lots two and three, and on a part of lot three.

Counsel for appellant contends that a subcontractor can have a lien the same as the original contractor under section one of the Mechanic’s Lien Act of 1903, which provides that a lien may be had upon the whole of such lot or tract of land and upon the adjoining or adjacent lots or tracts of land- of such owner, constituting the same premises, and occupied or used in connection with such lot or tract of land as a place of residence or business; and in case the contract relates to two or more buildings, or two or more lots or tracts of land, upon all of such lots and tracts of land and improvements thereon, for the amount due with the interest thereon, and that that means a lien must be taken upon all the premises occupied by the building or none.

We cannot agree with counsel on this proposition. In. Sorg v. Pfalzgraf, 113 Ill. App. 569, a suit to enforce a mechanic’s lien, the bill located the house on lots nine and ten. On the trial it developed that it stood on lots eight and nine and not on lot ten. It was then too late to enforce a lien against lot eight. The court ordered a decree against lot nine only. We there said, the owner cannot be permitted to defeat the lien upon his land which the law has given the builder simply because the builder might have obtained a lien upon more of the owner’s land.

It does not appear that Granquist’s rights were prejudiced by the decree in this case, unless, as urged by appellant, Granquist should share pro rata with the other subcontractors in the amount shown to be due by the statement made by the Construction Company on April 16, 1906. Section five of the Mechanic’s Lien Law of 1903, makes it the duty of the owner to require of the contractor, before he, or anyone for him, shall pay or cause to be paid to said contractor, or for him, any moneys or other consideration due, or to become due such contractor, or make or cause to he made any advancement of any moneys or other consideration, a statement in writing, under oath, or verified by affidavit, of the names of all parties furnishing material and labor and the amounts due or to become due each. The proof shows that appellant was to pay the Construction Company $16,400 for the construction of the building, and that before obtaining the statement required by section five, appellant paid the original contractor, $13,000. As against subcontractors and material men these payments were unlawful. Nutriment Company v. George Green Lumber Co., 94 Ill. App. 342. For that reason Granquist cannot be required to share pro rata in the amount remaining after such unlawful payments.

The bill did not state that Granquist was interested in the premises, but the evidence disclosed that he had a claim as a subcontractor. From this, appellant argues that appellees did not meet the requirements of section 11 in that Granquist was not made a party. If he was a necessary party, appellant had adequate notice of such fact and should have raised the question of non-joinder of parties in the court below. Or, if, as appellant now contends, Granquist's suit for a lien was then pending, it could have moved the court below that the causes be consolidated. The objection was first raised on the final hearing. When thus delayed such an objection does not receive favor from the court, and in such cases to be of avail it must appear that the decree will have the effect of depriving the appellant of its legal rights. Pease v. Chicago Crayon Co., 235 Ill. 391.

Appellant contends that since the contract required the building to be completed December 1, 1905, final payment should have been made at that time, and a suit to enforce a lien should have been brought within four months thereafter; that the material furnished after December 1,1905, was not furnished under the original contract, but under some other, and that the time of payment for such material is not shown. The proof shows that appellant did not declare a forfeiture of the contract, as it might have done, for failure to complete the work by December 1,1905, but let the work go on and adjusted the penalty with the contractor April 12, 1906; that the final payment was to be made upon the completion of the building, and that it was completed and accepted April 16, 1906, and that the final delivery of material under the estimate was made March 23,1906, and the final delivery of extra material March 9,1906. This suit was commenced June 20,1906, within the four months period required by section 33.

Respecting the extras claimed by appellee, the evidence of the architect shows that the claim for extras was made by the original contractors and adjusted with appellant. Appellant should have considered in that adjustment that appellees were furnishing part of the extras, and should have kept enough out of the settlement to indemnify it if compelled to pay subcontractors, if lien was sought for the extra work, but appellant did not do this, consequently it cannot now complain.

The court adjudged that the property owners should pay the lien holder’s attorney the sum of $171.77 as fees, in accordance with a provision made by the last sentence of section seventeen of the Mechanic’s Lien Act (par. 31), which provides: “In all cases where liens are enforced, the court shall, in its discretion order reasonable attorneys’ fees taxed as a part of the costs in favor of the lien creditor.” Since the rendition of judgment in this case in the court below, the Supreme Court in Manowsky v. Stephan, 233 Ill. 409, said, referring to this sentence, “We have reached the conclusion that the sentence in question is in violation of the state constitution * * *. It is special legislation. It confers a right upon persons entitled to liens by virtue of the Mechanic’s Lien Law, and confers that right upon no others * * *. We regard the last sentence of the section of the statute above set out as in conflict with section 22 of article 4 of the constitution of the state.” The decree directed the attorney’s fees to be paid direct to Pomeroy & Demerath, attorneys for appellee. If an allowance for attorney’s fees had been proper, the decree should have directed it -to be paid to the party to the suit who had incurred the liability for solicitor’s fees. It follows that the allowance for solicitor’s fees, designated as attorney’s fees in the decree, must be reversed.. No other harmful error appearing in the record, the decree in all other respects is affirmed, one half of the costs of this court to be paid by appellee.

'Affirmed in part, reversed in part.


text:
    John A. Goodmanson, Appellee, v. Louis Rosenstein, Appellant.
    Gen. No. 5,029.
    1. Brokers and factors—when real estate commissions earned. It is not a question as to whether the real estate broker has obtained a contract which may be specifically enforced by the owner which determines his right to' commissions; if he has procured a customer who is ready, willing and able to buy the property at the terms designated by the owner, he is entitled to recover his commissions.
    2. Agency—ivhen absolute revocation unauthorised. An agency for a definite period cannot be terminated by the principal without compensating the agent.
    Assumpsit. Appeal from the County Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    Peek & Dietz, for appellant.
    George W. Wood, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This is an appeal from the County Court of Bock Island county, to review the judgment of that court allowing appellee, John A. Goodmanson, to recover the sum of $1000 against appellant, Lonis Eosenstein, on account of commissions for the sale of real estate in the city of Moline.

On November 22,1905, appellee filed a declaration in assumpsit containing the common counts and two special counts, to which appellant interposed the general issue, and a demurrer to the special counts. The demurrer was overruled and appellant filed two special pleas to the first special count. Appellant demurred to the special pleas and the demurrer was sustained. On the trial, the jury found the issues for appellee and assessed his damages at $1000. A motion for a new trial was denied, judgment was entered on the verdict, and an appeal was taken to this court.

The evidence shows that appellee, Goodmanson, was a real estate agent in the city of Moline; that he met Eosenstein, appellant, who was engaged in the clothing business, and owned and occupied a three story brick building known as the “Eosenstein Block” in that city. Appellant informed appellee that he wished to sell his building, for which he would take $50,000. Appellee asked appellant if he would pay him a commission in case he should find a purchaser, and he said he would. Later, appellant told appellee he must not publicly advertise the property as he was afraid it would injure his business if it was generally known that he was trying to sell, and appellee promised to do all he could towards selling the property by making a “still hunt.” About two weeks later, appellee learned that the Moline Trust & Savings Bank was looking for a new location and talked with one of its officers about the bank buying appellant’s property. Thereafter, on October 18, 1905, appellee obtained from appellant written authority to make the' sale within six months for the sum of $50,000 at a commission of 2%. Appellee, in his negotiations with the officers of the bank, learned that a meeting of the directors would be necessary before the bank could act, and thereupon gave H. A. Ainsworth, president of the bank, a written option to purchase the premises within sixty days for $50,000. Early in November, appellant, hearing that the bank had an option on the property, asked appellee the date of his written authority to sell the same. Appellee gave him the date, and also told him that he had the property about sold. Thereafter appellant served appellee with a notice purporting to revoke the authority to sell. On November 23,1905, the president of the bank tendered to appellant $50,000, and demanded a deed. Appellant did not accept the money and refused to make a deed.

The question at issue in this case is not whether or not the contract with the bank through Ainsworth can be enforced by specific performance, but whether or not appellee can recover the commissions stipulated for in written authority of October 18, 1905. With the question of the validity of appellee’s contract to Ainsworth we are not concerned on this hearing, notwithstanding appellant’s theory that the contract cannot be specifically enforced.

Under appellee’s authority to sell, he had six months in which to sell the property for $50,000, and earn the 2% commission. Within that time he found a purchaser, ready, able and willing to buy, as is evidenced by the tender of the $50,000 and the demand for a deed. He thereby earned the commission. Appellant might refuse to carry out the contract of sale made by his agent, but this would not release him from paying the commissions earned. The fact that the tender was made after the commencement of the suit is immaterial. The revocation cannot affect his right to recover his commission, for his agency was for a definite time, and could only be terminated by appellant’s default, as there was no provision to terminate it before the six months. Band v. Cronkrite, 64 Ill. App. 208. Appellee had done some work towards securing a purchaser before he obtained the written authority to sell, and the evidence shows he had secured a purchaser before his authority was revoked. We are of the opinion that appellee did all that was necessary to entitle him to recover the commissions stipulated for in the writing of October 18,1905.

We have examined the authorities cited by counsel for appellant, but as this is an action in assumpsit, we think they have no application. In McEwen v. Kerfoot, 37 Ill. 538, the court held that after an agent’s agreement had been repudiated, while he should go no further, nevertheless, the agent was entitled to his commissions for the sale made by him within his authority.

The finding of the jury that appellee procured a customer, ready, able and willing to purchase the property is fully sustained by the evidence.-

Finding no material error in the record, the judgment is affirmed. .

Affirmed.


text:
    The People of the State of Illinois, ex rel. B. R. Johnson, Plaintiff in Error, v. Daniel Blake, Defendant in Error.
    Gen. No. 5,032.
    1. Constitutional law—who ineligible to hold state office. Any person holding under the United States government the office of post-master with an annual compensation in excess of $300 is ineligible to hold at the same time the office of president of the village board of trustees.
    2. Quo wabbanto—what essential to right to file information. Only probable cause is required to be shown to entitle a proper application for leave to file an information; unless an absolute showing is made against the application, leave should be granted.
    3. Quo wabbanto—what should not be determined upon applicar tion for leave to file information. While affidavits and counter-affidavits may properly be heard upon an application for leave to file an information, the court should not, upon such preliminary hearing, try or determine the merits of the controversy.
    4. State’s attorney—when presence of, at proceedings not es
      sential. Proceedings which are required by law to be conducted in the name of the attorney-general or the state’s attorney, may be conducted by others in his behalf.
    Petition for quo warranto. Error to the Circuit Court of Livingston county; the Hon. Geobge W. Patton, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded with directions.
    Opinion filed October 14, 1908.
    A. C. Ball, State’s Attorney, and A. C. Norton, for plaintiff in error.
    White & Tuesburg, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

This is an appeal from the Circuit Court of Livingston county to reverse the judgment of that court in refusing to grant leave to A. C. Ball, state’s attorney of Livingston county, at the relation of B. R. Johnson, to file an information in the nature of quo warranto against Daniel W. Blake, appellee, to have him show by what right he claims to hold and execute the duties of the office of president of the board of trustees of the village of Cornell in Livingston county.

On May 25, 1907, the following petition was filed in the Circuit Court of said county:

"State oe Illinois, / Circuit Court Livingston county, I ss‘ May Term, A. D. 1907.
Now comes A. C. Ball, State’s Attorney in and for said county of Livingston and State of Illinois, on the relation of B. R. Johnson, and shows to this Honorable Court that one Daniel W. Blake has since the 6th day of May, 1907, in the county aforesaid unlawfully held and executed, and still does hold and execute, without any warrant or right whatever, the office of President of the Board of Trustees of the village of Cornell, an incorporated village of said county and state; and in support of said showing presents herewith the affidavit of B. R. Johnson hereto attached and made part hereof, and asks leave of the court for leave to file an infermation in nature of a quo warranto in the name of the people of the State of Illinois.
(Signed) A. C. Ball,
State’s Attorney for Livingston county.”

With the above petition was the affidavit of B. B. Johnson, relator, the body of which was as follows:

“B. B. Johnson on oath states that he is and has been for many years last past, a resident of and a qualified voter in the village of Cornell, an incorporated village situated in the county of Livingston and State of Illinois.
“Affiant further states that on the 16th day of April, 1907, a village election for the election of a president of the Board of Trustees of said village was held in said village of Cornell, and at said election one Daniel W. Blake was declared elected to the office of president of the Board of Trustees, and that afterwards or about the 6th day of May, 1907, the said Daniel W. Blake qualified, took the oath of office as such president of the Board of Trustees of the said village of Cornell, and began exercising the office of president of the said Board of Trustees of said village, and has ever since been and is still acting as such.
“Affiant further states that on the 16th day of April, 1907, and for several years continuously prior thereto, and from that time down to the present, the said Daniel W. Blake has continuously held, and still holds, an office under the Government of the' United States, said office being that of postmaster, at the post-office of Cornell in said county and state.
“Affiant further states that for several years last past and at the present time, the annual compensation of said Daniel W. Blake, as such postmaster, has exceeded the sum of $300 and still exceeds that sum; and the said Daniel W. Blake, while exercising the office of president of the Board of Trustees of said village has at the same time been, and was for a long time prior thereto, holding the said office of postmaster, and is still holding and exercising the same.”

On June 6, 1907, a rule was entered requiring appellee to show cause by June 10, why leave should not be granted to appellant to file said information. On June 10, appellee appeared by counsel to resist the granting of leave to file the information, and filed an affidavit, the body of which was as follows:

“Daniel W. Blake, being duly sworn, on oath states that he is the Daniel W. Blake, who is the deféndant in the above entitled cause and affiant states that on the 16th day of April, 1907, he was elected to the office of president of the Board of Trustees of the village of Cornell, in the county and state aforesaid, and that on or about the 6th day of May, 1907, he duly qualified and took the oath of office as such president and began exercising and is now exercising the office of president of the Board of Trustees of said village.
“Affiant further states that he is now and has been for several years last past, postmaster of the said village of Cornell.
“Affiant further states that neither at the present time nor during any of the several years during which he has been such posmaster, has the net annual compensation as such postmaster, after paying clerk hire and other expenses of said office, exceeded the sum of $300 per annum, but that for each year during which he has held said office, the said net compensation has been less than $300 per annum.”

Leave was given by the court to file additional affidavits by appellee and to appellant to reply. Appellee filed affidavits showing that the relator was present at the meeting of the board of village trustees and concurred in the action of approving the bond of appellee and in other official matters of appellee. He also filed affidavit showing the receipts of the office of postmaster, and giving the various items, also affidavit showing the rental value of the property occupied by the post-office and the reasonable value of clerk hire, etc., about the conducting of the post-office.

Appellant filed affidavits denying the statements in affidavits of appellee in regard to the rental value of the post-office and the necessity of clerk hire and other things. Motions were made to strike all the affidavits from the files and after the hearing upon the affidavits the court took the case under advisement and on December 14, 1907, denied the prayer of the petition and refused leave to the appellant to file the information and gave the following reasons:

First, because the state’s attorney at no time appeared in said cause and had no connection with it observable to the court, except signing the petition; second, the evidence fails to show the net salary of the defendant, and if it has at any time equaled $300. To the order of the court in denying the leave appellant excepted, and prayed an appeal to this court, which was allowed.

The petition, as filed by state’s attorney A. C. Ball, was in the proper form and the affidavit of the relator B. R. Johnson stated that appellee held and executed the office of the president of the village board of trustees, and was at the same time holding and executing the office of postmaster of the village of. Cornell. The Constitution of the State of Illinois, article 4, section 3 provides: “Nor shall any person holding any office of honor or profit under any foreign government or under the government of the United States, except postmaster (whose annual compensation does not exceed the sum of $300) hold any office of honor or profit under the authority of this state.”

Appellee admitted in his affidavit that he held two offices, but denied that his net annual compensation as postmaster was over $300, and from the other affidavits filed an issue of fact was raised, and upon which there was dispute, and as our statute only requires probable grounds for granting leave to file the information, we think leave should have been given to file the information, as this was shown by the affidavit.

While it is the proper practice to file affidavits and counter affidavits on the motion for leave to file an information (People ex rel. v. North Chicago Railway Company, 88 Ill. 537, People ex rel. Lewis v. Waite, 70 Ill. 25), the merits of the case should not be tried on the preliminary hearing.

The law is that when the rule nisi is entered unless cause is shown such as puts the matter beyond dispute the court should make the rule absolute for the information in order that the question concerning the right may be properly determined (17 Ency. Pleading and Practice, 451; Attorney General v. C. & E. R. R. Co., 112 Ill. 520-535); then the case can be heard and tried the same as any other case when the evidence may be produced by witnesses and cross-examination be allowed. It is therefore unnecessary for us to express any opinion on the merits of the case on this appeal.

There is another question which demands our consideration, that of the parties and the conduct of a proceeding of this kind. Our statute permits no case of this kind to be instituted except by the attorney-general of the state, or the state’s attorney of the county in which it is brought. From this provision the trial court evidently thought it was the duty of the state’s attorney to prosecute this case in person. In this he is mistaken. It is only necessary that the case shall be carried on in the name and by the authority of the People of the State of Illinois and as long as it is carried on in the name of the People under the name of the state’s. attorney, it is immaterial whether he is personally present at all proceedings in the case or not. Chesshire v. People ex rel., 116 Ill. 493-500; McGahan v. People ex rel. Deneen, 191 Ill. 493.

The petition in this case and the proceedings were according to law. This was a proceeding in which the public was interested, and the mere fact that there was a relator and another attorney in the case would make no difference. The state’s attorney had a right to let his name be used in the proceeding if he thought proper, and to do as little or much in the actual trial of the case as he deemed proper, and the court erred in holding that he had to be personally present to conduct this proceeding.

The judgment of the Circuit Court is reversed and the cause remanded with directions to the Circuit Court to grant leave to appellant to file the information.

Reversed and remanded with directions.


text:
    J. C. Hedenberg, Appellant, v. Nora Nash, Appellee.
    Gen. No. 5,048.
    1. Evidence—what essential to admission of secondary. In order to let in secondary evidence of the contents of a written instrument, the person in whose possession it was last traced, must be produced, unless shown to be impossible, in which case, search among his papers must be proved if that can be done.
    2. Libel—when published article not competent. A newspaper containing an alleged libelous article is not competent against an individual not connected with the paper which caused the publication of such article if the same was set up from the manuscript copy prepared by such individual, unless the non-production of such manuscript copy is duly accounted for.
    Action on the case. Appeal from the Circuit Court of Knox county; the Hon. Robert J. Grier, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    W. T. Smith and Robinson & Lewis, for appellant.
    Eugene W. Welch, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action on the case by appellant, J. 0. Hedenberg, against appellee, Nora'Nash, to recover damages for causing the publication of an alleged libelous article in a Galesburg newspaper. On the trial at the close of appellant’s testimony in chief, the court, on the motion of appellee, instructed the jury to return a verdict of not guilty, and such a verdict was returned, on which judgment was entered. From this judgment Hedenberg appealed.

The declaration contained one count and alleged that appellee caused to be published on August 29, 30 and 31, 1907, in the Daily Republican Register, a newspaper published in Galesburg, Illinois, having a circulation of five thousand copies, the following item:—■ “Renters—J. C. Hedenberg vacated 214 South street owing $40.00 rent. He denied it and showed forged receipts to the constable. He now resides on Garfield avenue.” The declaration averred the same was a false, scandalous and defamatory article, etc.

To the declaration appellee interposed the plea of not guilty, and a plea of justification. Appellant replied to the plea of justification, and issues were joined. On the trial the original manuscript of the alleged libelous article was not produced, but appellant proved the publication in the Galesburg Daily Register of the articles set out in the declaration, and the circulation of the paper on the days mentioned; that appellee brought the article to the office of such newspaper, and paid for its publication, and that appellee had admitted that she had caused such an article to be published. He then offered in evidence the published article counted on in the declaration, to which appellee objected. The court sustained the objection on the ground that the proper foundation had not been laid for the introduction of secondary evidence. Appellant made several further attempts to lay the necessary foundation for the admission of the published article, but the court, on appellee’s objection, refused to admit it; thereupon appellant rested, and on the motion of appellee, the court directed the jury to return a verdict of not guilty.

The only question in this case for our consideration is, whether or not the court erred in refusing to admit the published article in evidence. Counsel for appellant urges that it should have been admitted because the evidence shows that the original manuscript of the article could not be found, and that the admission of appellee in regard to it made the published article admissible in the absence of the original manuscript.

The rule is, “In order to let in secondary evidence of the contents of a written instrument, the person in whose possession it was last traced, must be produced, unless shown to be impossible, in which case, search among his papers must be proved if that can be done.” Prussing v. Jackson, 208 Ill. 85.

The record discloses that one. Bobbins, connected with the paper, testified that it was customary, when notices for publication came in, to take them to the composer’s room, and put them on the copy hook, to be set up on a type-setting machine; that ordinarily the original would be kept until the following night, and then thrown into the waste paper basket. He could not, however, say what was done with the manuscript of this particular article. One Custer, another employe of the paper, testified that he had charge of the circulation of the newspaper, and that it was customary to place the copy on the hook, from which it was taken by the men in the composing room and set in type. It was preserved until the next day to see if there were any objections. If there were none from any of the advertisers, it was destroyed, thrown in to the waste-paper basket and hauled away. He said he looked in the safe, through his files and in the place where they kept copies and letters or copies of letters, but was unable to find it. His testimony does not show what was done with this particular manuscript, as to whether there was any objection in this case or whether this copy took the course he testified was the rule. Neither the manager of the composing room, nor any of the compositors were called and inquired of if they knew what was done with the copy after it was set in type. This evidence was insufficient to show appellant’s inability to produce the original manuscript.

Prom this evidence, it is shown that the original manuscript was last in the possession of the employes of the composing room, that is of the one who took it from the copy hook to set it in type, and that person was not called, nor was it shown to be impossible to call him or the other compositors. The evidence was not sufficient to show appellant’s inability to produce the original manuscript and thus lay the foundation for the admission of secondary evidence of the contents of the published article.

Counsel for appellant urge that the published article should have been admitted for the reason that appellant proved appellee’s admission that she prepared the article and sent it to the newspaper, and that after it was printed, her attention was called to it, it being read to her, and that she said that she had taken it to the office and had it printed. This question is no longer an open one in this state as will be seen from the opinion in the case of Trussing v. Jackson, supra, where the authorities are reviewed. A further discussion of the law on that point in this case is therefore unnecessary, and we will content ourselves by quoting from that case the following: “To hold the testimony of the plaintiff that the defendant said to or in the hearing of such plaintiff that a writing material to be produced in evidence • contained certain statements to be sufficient to deprive the defendant of the right to be judged by the writing itself, is to abrogate in its entirety the rule that the contents of a written instrument cannot be proved by parol in the absence of proof accounting for and excusing the non-production of the writing.” This, in our opinion, fully answers appellant’s contention.

There being no evidence before the jury upon which they could find a verdict, there was no error in the court directing them to return a verdict in favor of appellee. The judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Thompson

text:
    Minnie C. Coulter, Appellee, v. Travelers’ Protective Association of America, Appellant.
    Gen. No. 4,928.
    1. Pleading—when special plea not essential. It is not necessary to plead specially any defense that may properly be offered under the general issue; a demurrer is properly sustained to a special plea which interposes á defense admissible under the general issue.
    2. Pleading—what defenses admissible under general issue. Payment and a release may be offered in evidence under the general issue.
    3. Pleading—when provision of constitution of fraternal benefit society not considered. A section of the constitution of a fraternal benefit society pleaded in connection with a release set up by way of defense to an action instituted upon a certificate, will not be considered if the logical connection or effect between such section of the constitution and the release is not averred.
    4. Fkatebnal benefit societies—when release does not discharge death claims. A release in full by a member for benefits to which he was entitled by virtue of injuries does not discharge the right of the beneficiary to recover death claims if ■ death ensued from such injuries.
    5. Fbatebnal benefit societies—when full death claim should not be awarded. If the full liability provided for by a certificate is $5,000, such amount should not be allowed if prior to death, benefits with respect to the accident which caused the death of the member, had been paid to him. "
    6. Evidence—what competent as admission against interest. Proofs of loss containing answers by a physician, sworn to as true by the beneficiary, are competent against her as admissions against interest, and the defendant offering them may select such portions as it sees fit and offer the same, if material, subject to the right of such beneficiary to offer such other parts of the document as qualify or modify such admission or declaration against interest.
    7. Instbuctions—what proper in action upon accident benefit certificate providing for non-liability when death results wholly or in part from disease. In such a case an instruction is proper which tells the jury that though they believe from the evidence that the death of a member was caused in part by bodily infirmity or disease, yet that if the jury further believe from the evidence that said member received accidental injuries and that such bodily infirmity or disease was caused by or was a natural, direct, proximate and necessary result of such accidental injuries, and that such accidental injuries were the direct cause of his death, then the fact that such bodily infirmity or disease contributed to cause the death of such member, would not constitute a defense to the action.
    Assumpsit. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 14, 1908.
    Rehearing denied October 14, 1908.

      Statement by the Court. This is an action in assumpsit brought by Minnie G-. Coulter of Bock Island, Illinois, appellee, against the Travelers’ Protective Association of America, appellant, for five thousand dollars indemnity, on a certificate of membership for the death of her son, Harry W. Coulter. The declaration was filed to the January term, 1905, of the Bock Island Circuit Court. It alleges that the Travelers’ Protective Association of America is a fraternal beneficiary society or corporation organized under the laws of the state of Missouri, and doing business in the state of Illinois, by virtue of the statutes of Illinois in such case made and provided; that on June 21, 1902, said defendant company executed and delivered to one Harry W. Coulter, deceased, the son of plaintiff, its benefit certificate or policy, to wit, a certificate of membership in said association, in and by which it is provided and agreed by said defendant association that said Harry W. Coulter is entitled to all the benefits accruing from such membership under the provisions of the constitution and by-laws of said association, said benefits, in case of the death of said Harry W. Coulter, being payable to plaintiff under the. name of Minnie Gr. Coulter as therein stated; that at the time said certificate was so executed and delivered to said Harry W. Coulter and from thence hitherto the by-laws of said defendant association in that behalf, provided that five thousand dollars shall be paid to the beneficiary named in the certificate of any deceased member in case of the death of said member by accident, provided such death shall occur within three months after such accident and such accident be within the conditions and limitations of the benefit certificate. Plaintiff avers that, to wit, June 1, 1904, while said benefit certificate was in full force, the said Harry W. Coulter received by accident, while about his business as a traveling salesman riding on a railway train and not in any manner or while engaged in any occupation prohibited by the rules or conditions of said certificate, a bruise on and sprain of the back and divers internal injuries, from the effect of which accident said Harry W. Coulter thereafter on August 24, 1904, died. It is further averred that Harry W. Coulter kept and performed on his part all the conditions and requirements in accordance with the terms of said certificate and of the constitution and by-laws of said association; that within four days after receiving said accident said Harry W. Coulter notified the defendant of the particulars of the same and gave the defendant the name of his attending physician; that the plaintiff notified defendant of said death of deceased, and made the proofs required by defendant on blanks furnished by defendant for that purpose; by means whereof the defendant became liable, etc. A copy of the certificate of membership, it being No. 43406, is attached to the declaration. On the back of the certificate is a set of rules specifying in what instances the defendant shall not be liable. One of these rules is: The member agrees that the Travelers ’ Protective Association of America shall not be liable for injuries incurred by a member in an occupation more hazardous than specified in his application * * * or death or disability when caused wholly or in part by any bodily or mental infirmity or disease.
    The defendant filed the plea of the general issue with six special pleas. The second special plea avers that the plaintiff has no cause of action because, under the terms of the certificate issued to Harry W. Coulter, said Coulter was entitled to all benefits accruing from his certificate of membership under the provisions of the constitution and by-laws of defendant as in the declaration set forth; that a-t the time said certificate was issued and at the time of said injuries and death the constitution contained the following provisions: Section 7. “All claims for benefits or indemnity under the benefit certificate of a member and this constitution must be made to the National Board of Directors on the regular blank furnished by the board. Such claims are not divisible and must be presented after the total recovery of the member or after his death;” that after said Coulter received the injuries mentioned in the declaration he notified defendant of said injuries for the purpose of obtaining full payment of his benefits; that after he notified defendant of said injuries, defendant on the 16th day of July, 1904, during the lifetime of said Coulter, for the purpose of making full satisfaction, discharge and payment for said injuries issued to him a draft for the sum of $75 in words and figures as follows, to wit, “Travelers’ Protective Association of America. St. Louis, Mo., July 16, 1904. This check will not be paid if detached from receipt or if the receipt is not signed by the claimant.” Here follows the draft for $75 which is followed by the words, “This check will not be paid if detached from the receipt, or if the receipt is not signed by the claimant.” It is further averred, that after said draft was received said Coulter on the 19th day of July, 1904, executed and delivered to the defendant a release and discharge of his claim to said defendant, which said release is in words and figures as follows, to wit:
    “Claim No. 8324. Certificate No. 43406. Know all men by these presents, that I Harry W. Coulter in consideration of the sum of seventy-five dollars to me paid by the Travelers’ Protective Association of America the receipt whereof is hereby acknowledged, do hereby release and forever discharge said Travelers’ Protective Association of America from all liability for or on account of accidental injuries received by me on or about the first day of June, 1904. Witness my hand and seal at Rock Island Ill. this 19th day of July, 1904.
    Done in the presence of
    W. J. Coulter. Harry W. Coulter,
    Claimant.”
    That by the terms of said release said Harry W. Coulter did then and there release all claims, demands and causes of action which he then had against the defendant, or might thereafter have or allege against it and did release and discharge to defendant any claim or demand plaintiff might thereafter have or allege against it for said injuries. The first special plea is the same as the second except that in the first no reference is made to the clause of defendant’s constitution set up in the second special plea. The other four special pleas plead the rule on the hack of the certificate that the defendant is not liable for death or disability when caused wholly or in part by any bodily or mental infirmity .or disease, and aver in different forms that said Coulter did not die solely from the effects of the accident and injuries mentioned in the declaration but that his death was caused in part by the disease known as typhoid fever. A demurrer was sustained to the first and second special pleas, and replications were filed to the other pleas. After the evidence for the plaintiff was closed, the declaration was amended by changing the allegation that the deceased was injured while riding on a railway train to “in a manner to plaintiff unknown.” The original pleas were refiled, with two additional special pleas averring contractual limitations. A demurrer was filed and sustained to the first, second and seventh special pleas, and issues joined upon the others. A verdict was returned for plaintiff for $5537.50. The defendant made a motion for a new trial. The plaintiff remitted $83 and the court overruled the motion for a new trial and rendered judgment for $5454 in favor of plaintiff. Exceptions were properly preserved by the defendant who brings the ease to this court by appeal.
    Jackson, Hurst & Stafford, for appellant; Henry T. Kent, of counsel.
    Searle & Marshall, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

It is assigned for error that the court erred in sustaining the demurrer to the first and second special pleas, and in sustaining the objection of appellee to admitting in evidence on behalf of appellant the release from further damages which is set forth in the special pleas, and the section of the constitution of appellant which is set forth in the third special plea. These pleas are pleas of payment and release. The rule is that it is not necessary to plead specially any defense that may be properly offered under the general issue. Payment and a release may be offered in evidence under the general issue. Kassing v. International Bank, 74 Ill. 16; Chicago W. & V. Coal Co. v. Peterson, 45 Ill. App. 507; 18 Encyc. Pl. & Pr. 88. The general issue was filed in this case, so that the release itself was admissible in evidence without a special plea, if it was competent and material evidence. It is not error to sustain a demurrer to a special plea which does not set up some matter which is not available under the general issue.

The third special plea also set forth a part of the constitution of appellant. The plea does not aver the legal effect of the section of the constitution and does not aver any logical conclusion or effect between the constitution and the release, and hence that part of the plea referring to the constitution is incomplete and insensible. We express no opinion about the meaning or effect of this section had it been properly pleaded. The third special plea cannot be considered as anything more than a plea of satisfaction based on the release alone. There was no error in sustaining the demurrer to the pleas.

Where a corporation bases its defense upon its charter or by-laws the same must be properly pleaded. 5 Encyc. Pl. & Pr. 94. There was no plea based on the section of the constitution offered in evidence, and therefore the objection thereto might have.been properly sustained because there was no foundation for its introduction in the pleading unless there was some other reason why the objection should have been overruled. The record shows that the appellee offered certain pages of appellant’s constitution and by-laws in force July 1, 1901, and that it was stipulated that “either side may introduce in evidence such parts of such book as they may desire, without further proof in regard to the authenticity of the book and contents.” This stipulation apparently waives all objections to the section of the constitution and by-laws in the book offered by appellee, and would permit anything in the book material to the case to be offered in evidence without respect to the pleading. The offer by appellant however is of the constitution and by-laws in effect July 1, 1902, to July. 1903, which is a date subsequent to that of the book offered by appellee and subsequent to the contract for indemnity and benefits issued to the deceased. The objection to the section of the constitution from a book other than that the stipulation concerned was properly sustained as there was no foundation for it in the pleading.

The release was executed July 19, 1904, by the insured, Harry W. Coulter, now deceased, and recites that it is in consideration of seventy-five dollars to him paid by appellant and purports to release and discharge appellant from liability for or on account of accidental injuries received by him on June 1, 1904. At the time of the execution of the release Harry W. Coulter was the only party who had any vested interest in the indemnity or benefits. Minnie Gr. Coulter, the beneficiary in case of his death, had no vested interest in the certificate at that time. The declaration alleges that the appellant is a fraternal beneficiary association. The interest of a beneficiary in a certificate is a mere expectancy which becomes vested only on the death of the assured. Middeke v. Balder, 198 Ill. 601; Martin v. Stubbing, 126 Ill. 404; Voigt v. Kusten, 164 Ill. 320; Grand Legion S. K. v. Beaty, 224 Ill. 349. This certificate has a dual nature under the by-laws in providing for indemnity to the member for accidents during his lifetime and death benefits to the beneficiary named in the certificate after the death of the member caused by accident. As the pleadings were at the time of trial no reason appears why a payment of indemnity to the member in his lifetime of what was then due him and over which there was no dispute would be any consideration for the release of death benefits to the beneficiary after the death of the member, and the objection was properly sustained to the introduction of the release.

The rules of appellant printed on the back of the certificate of membership provided that appellant is not liable for death or disability when caused wholly or in part by any bodily or mental infirmity or disease. The proof shows that the deceased claimed to have been injured June 1,1904, at Wapello, Iowa; that he arrived at his home in Bock Island June 6, suffering from a bruise on his back, and went to bed and was confined to his bed until the 13th of June and from that date he was able to be around walking with a cane. On July 7th he appeared to be so far recovered that he went to work in a mattress factory where he worked until July 16th, when he went home sick and took to his bed where he died on August 24,1904. The contention of appellee is that deceased died from injuries received June 1, while the contention of appellant is that the deceased died wholly or in part from some bodily disease which it is claimed was typhoid fever. A large amount of testimony was presented by both sides tending to support their respective contentions. It is insisted that the court erred in excluding proper testimony offered by appellant on that issue. Appellee offered in evidence certain proofs of death for the purpose of showing that the rule of the appellant requiring notice and proofs of death to be furnished on blanks furnished by appellant had been complied with. These proofs were admitted, the court stating in his. ruling that they were admitted “for that purpose only as tending to prove notice to the defendant of the alleged injury and death of the insured.” Among the proofs of death are certain questions and answers thereto made by J. E. Assay, M. D., one of the attending physicians of the deceased. The seventh question and answer is: “How long in your opinion, will the claimant be totally disabled?” “Patient died August 24,1904, in my opinion of injury to spine and typhoid fever.” Question ten and answer thereto from another of the proofs of death is: “Was the deceased to your knowledge afflicted with any affection or disease, acute or chronic, at the time? If so to what extent did it contribute to his death? Answer. Tes, by causing injury to sympathetic nervous system and paretic condition of bowels. ’ ’ The ■appellee made an affidavit that she is the beneficiary, and setting forth among other things that she had read (or heard read) the foregoing statements and affidavits and each and every one thereof and knows the contents; that they are true of her own knowledge. Appellant offered in evidence said question seven and the answer and said question ten and the answer, in connection with the affidavit of the appellee stating she had read the proofs of death and that they were true. The court admitted the affidavit of the appellee, but sustained an objection to the admission of the questions and answers of the physician on the- ground that the party had no right to select out and offer a part of the proofs. The appellee offered to admit the papers as an entirety. Appellant did not accept the offer, but insists on its right to the parts it offered. We are of the opinion that the appellee having made an affidavit that the answers of the physician were true, thereby made such questions and answers material and competent evidence against her. They were, in connection with her affidavit, in the nature of an admission against her interest, but not conclusive. 7 Encyc. of Ev. 576; Commercial Ins. Co. v. Huckberger, 52 Ill. 464; Supreme Tent of K. of M. v. Stensland, 206 Ill. 124. We conclude that appellant was only required to offer so much of the document as it considered material and pertinent as a declaration by appellee against her interest, subject to the right of appellee to read in evidence such other parts of the document as qualify or modify such admission or declaration by appellee against her interest. 9 Encyc. of Ev. 176; Slingloff v. Bruner, 174 Ill. 561; Heinsen v. Lamb, 117 Ill. 549; Imperial Hotel Co. v. H. B. Claffin Co., 55 Ill. App. 337. The evidence upon the question of what was the cause of the death of the assured was very conflicting and had the evidence to which objection was improperly sustained been admitted the verdict might have been different.

Appellant offered in evidence the affidavit of the deceased made June 22, for the purpose of securing indemnity for the three weeks from June 1 to June 22, that he was disabled from attending to his business, in connection with the draft for $75 and the release. Appellant did not offer this for the purpose of showing or inferring therefrom an admission that Harry W. Coulter had recovered from the injury, but stated that it was offered “for the purpose of proving that Harry W. Coulter during his lifetime made application to defendant for three weeks ’ indemnity at the rate of $25 per week, and stated in said application that when said claim was paid it should be in full satisfaction of all claims which he had or might have against defendant on account of injury, and that the injury for which said claim was made is the identical injury alleged in plaintiff’s declaration.” We hold that it was not proper evidence for that purpose, for the reason that it does not appear but that he had a claim for indemnity and plaintiff also had a claim for death benefits. The purpose of the offer having been thus limited, we hold the objection thereto was properly sustained.

Appellant assigns error on the giving of appellee’s fourth instruction. The instruction is that though the jury believe from the evidence that the death of Coulter was caused in part by bodily infirmity or disease; yet if you believe from the evidence that said Coulter received accidental injuries and that such bodily infirmity or disease was caused by or was a natural, direct, proximate and necessary result of such accidental injuries and that such accidental injuries were the direct cause of his death, then the fact that such bodily infirmities or disease contributed to cause the death of the deceased would not constitute a defense to this action. This instruction is in accordance with the rule announced in Central Accident Ins. Co. v. Rembe, 220 Ill. 151; and U. S. Health & Accident Ins. Co. v. Harvey, 129 Ill. App. 104.

The appellant introduced in evidence sections 2 and 3 of Article IX of the constitution in force July 1,1903. These were admitted in evidence apparently under the stipulation referred to, although the stipulation was concerning a constitution of an earlier date. Section 2 provides that “Five thousand dollars shall be paid .to the beneficiaries named in the certificate of a deceased member in case of death by accident.” Section 3 provides that “whenever a member of this association shall through external accidental means receive bodily injuries * * * he shall be paid for loss of time occasioned thereby the sum of $25 per week * * * but such sum shall not be paid in addition to benefits received from section 2 of this article. ’ ’ The court at the request of appellee instructed the jury that the clause, “But such sum shall not be paid in addition to benefits received under section 2 of this Article of appellant’s constitution, is of no significance in this case, and the jury will not consider the same.” Even applying the rule that policies of insurance are construed most strongly against the insurer, and if susceptible of two constructions that most favorable to the insured will be adopted, the appellant would not be liable to the assured for the indemnity and to the beneficiary for the full benefits. The total liability is $5000. That instruction was erroneous in the form it was given; that error was however attempted to be corrected by the remittitur. We do not find any error in the refusal of instructions asked by appellant, for the reason that all proper instructions were contained in those given.

For the error in sustaining objections to proper evidence the judgment is reversed and the cause remanded.

Reversed and remanded.