author: Mr. Presiding Justice Carnes

text:
    Town of Manteno, Appellant, v. Albert Surprenant, Appellee.
    Gen. No. 6,412.
    1. Appeal and error, § 1268

      —when presumed that, facts warranted sustaining of demurrer to bill. Where a bill does not contain any allegation with respect to material facts, they will be presumed to be such as will sustain the action of the court in sustaining a demurrer to the bill.
    2. Roads and bridges, § 203*-—what are requisites of notice in proceedings to collect penalty for obstruction of highway. In a. proceeding by a town under the Roads and Bridges Act, sec. 71 (J. & A. 1f 9700), to collect a penalty for the obstruction of a highway by a fence, the plaintiff must state in its notice what places defendant is charged with obstructing so that he may ascertain what his rights are.

      3. Roads and bridges, § 179*—what constitutes obstruction of highway. The building of a fence longitudinally in a road constitutes an obstruction warranting the collection of the penalty provided by, and its removal under, the Roads and Bridges Act, sec. 71 (X & A. 1T 9700).
    4. Roads and bridges, § 193*—when injunction lies to compel removal of obstruction in highway. An injunction to compel the removal of an obstruction in a public highway may be maintained by a town, on a proper bill in equity showing danger of great and irreparable injury.
    5. Nuisance, § 25*—when equity loill not intervene to prevent or remove public. While a court of equity may prevent or remove a public nuisance and interpose its extraordinary powers, it will not do so if the remedy at law is adequate.
    6. Roads and bridges, § 184*—when encroachment on highway constitutes public nuisance. It is a public nuisance to obstruct or encroach with a fence on a public highway.
    7. Pleading, § 432*—what is office of videlicet. The object of a videlicet is to dispense with strict proof.
    8. Pleading, § 432"—what is effect of videlicet as to proof of distance obstruction extends into hightoay. Where the allegations, under a videlicet, as to the number of feet a fence encroaches on a road are denied by answer, the complainant, in a suit by a town to compel the removal of the fence as an obstruction to the road, can only be required to prove that the fence is some appreciable distance over the road line.
    9. Roads and bridges, § 179*—what constitutes obstruction to highway. The construction of a'fence longitudinally in a highway constitutes an obstruction to the highway under the Roads and Bridges Act, sec. 71 (X & A. 1f 9700), whether any damage results or not.
    10. Roads and bridges, § 193*—when injunction does not lie to compel removal of fence as obstruction in highway. A bill by a town for a mandatory, injunction to compel the removal,' under the Roads and Bridges Act, sec. 71 (X & A. If 9700), of a fence built longitudinally in the highway is not maintainable, especially where the boundaries of the highway are not in dispute, since the remedy at law. is adequate.
    11. Equity, § 9

      —collection of penalty. Equity cannot be resorted to for the sole purpose of collecting a penalty.
    Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 9, 1918.

      J. Bert. Miller, for appellant. .
    Savary & Buel and Granger, Dougherty & Nourie, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

October 4, 1915, appellant, Town of Manteno, filed in the Circuit Court of Kankakee county its amended bill of complaint charging that about 50 years ago a public road was laid out east and west along and on either side of the north line of sections 35 and 36, and another public road north and south along and on either side of the section line between said sections, all in said township; that each of said roads has been used by the traveling public during all the time since it has been laid out; that Albert Surprenant, appellee, is now, and has been for several years last past, the owner and in occupancy of the lands on each section south of and abutting said east and west highway, and on section 35 west of and abutting said north and south highway; that more than 30 years ago the then owner -of said abutting lands now owned by appellee set out a hedge fence on each of said road lines, and all the time thereafter to 1913 the traveling public used each of said public highways from the line where the said hedge fence was so constructed to the opposite line of said public highway; that on or about the 15th day of May, A. D. 1913, appellee pulled out the hedge fence and constructed for about 50 rods a fence composed of iron posts and wire in said public road a distance from the south line of said highway on section 36 of “to wit: from 4 to 8y2 feet”; and on or about December 10, 1913,.he pulled out the hedge fence on the north and east lines of lands abutting said east and west and north and south roads on section 35 and erected a similar fence a distance of “to wit: from 4 to 7 feet” within the road and from the road line; that on the 18th day of June, 1914, the commissioners of highways of. said town notified appellee to remove each of said three fences, and he refused and still refuses and fails to do so; that on the'24th day of September, 1914, said commissioners made a complaint in the name of the Town of Manteno before a justice of the peace against appellee, charging said encroachments substantially as above stated except there was no averment as to the distance of the fences in the road; that summons was issued and appellee" appeared, and on September 30, 1914, the case was tried and the justice of the peace found that appellee did by said fences encroach on each of said three roads, and adjudged that said Town of Manteno have and recover of said defendant $15 fines and penalties, being the sum of $5 for each of said three offenses, together with the costs of said suit; that appellee did not appeal from said judgment and it is in full force and effect, and that appellee testified in his own behalf in said trial before said justice that he knew when he built the fences that he was building them out in the public highway.

There is no allegation in the bill as to the width of the roads, the lay of the land, or whether they are highways much or little traveled; no averment of any fact or conclusion indicating that the encroachment complained of interferes with public travel, or with any other beneficial use that either the public authorities or the general public might make of the strip of land ih question. Taking the allegations of the bill most strongly against the pleader, it presents a case of an encroachment on a public road in violation of section 71 of our Roads and Bridges Act (J. & A. ¶ 9700) that in no way interferes with the beneficial use of the road. "Where a bill does not contain any allegation with respect to material facts, they will be presumed to be such as will sustain the action of a court in sustaining a demurrer to the bill. (Frantz v. Patterson, 123 Ill. App. 13.)

The prayer of the bill is for a mandatory injunction compelling the removal of said fences, and that appellant have and recover from appellee the sum of $3 per day for each day that he has suffered said three obstructions to remain upon said public road after he had been ordered to remove the same by said commissioners.

Appellee filed a general demurrer, which the court sustained, and appellant, standing by its bill, judgment was entered “that the complainant have and recover nothing by its. said bill of complaint, and that the defendant go hence without day”; which judgment is irregular in form, but no point is made on that in appellant’s brief, and we treat it as equivalent to a judgment dismissing the bill for want of equity.

This appeal was prayed and allowed to the Supreme Court, where the case was transferred to this court under section 102 of our Practice Act (J. & A. ¶ 8639).

The statute violated—section 71 and following sections of the Eoads and Bridges Act (J. & A. 9700 et seq.)—prohibits injury or obstructions of a public road in various ways, among .them leaving the cuttings of any hedge thereon for more than 10 days, depositing weeds, trash or garbage in the road, and injuring any sidewalk, public bridge, culvert or causeway, providing penalties for violation. Section 74 (J. & A. 9704) provides for the collection by suit of such penalties. The provision of section 71, especially applicable to the facts here, is that if any person shall obstruct a public road by encroaching upon the same with any fence he shall forfeit a sum not less than $3 nor more than $10, and an additional sum of not exceeding $3 per day for every day he shall suffer such obstruction to remain after he has been ordered to remove the same by any of the commissioners, complaint to be made by any person feeling himself aggrieved; and provides further that the commissioners, after having given reasonable notice to the owners or persons so obstructing such road of the obstruction, may remove any such fence and recover the necessary cost of such removal from such owner or other person obstructing such road, to be collected by said commissioners before any justice of the peace having jurisdiction.

If appellant had proceeded under that statute to enforce the penalty here asked, it would have been required in its notice to appellee to state what places he was charged with obstructing so that he might ascertain what his rights were. (Seidschlag v. Town of Antioch, 207 111. 280; Farlow v. Town of Gamp Point, 186 HI. 256.) Ferris v. Ward, 9 HI. (4 Gilm.) 499, is cited by the court in the latter case in support of that rule. In-that case it appears (page 505) that the width of the road was not specified and it did not appear how far the defendant should remove his fence, and the court expressly refused to determine whether that was necessary because it said the defendant was informed that he had built his fences across the whole of the road, therefore he was certainly obstructing it, and the question how far he had encroached upon the public highway did not arise since he had shut it up totally. In People v. Young, 72 111. 411, it is said that a petition would have been sufficient “if it had minutely described the part of the road obstructed.” In Township of Lovmgton v. Adkins, 232 111. 510, 516, the court said, when a notice charges a person with obstructing a road, such person is entitled to understand from the notice what place he is obstructing so he may ascertain what his rights are, and then the proof must correspond with this notice.

It stands admitted in the present case that the roads were obstructed by building a fence longitudinally therewith. Appellee is liable under said section 71 of the statute (Boyd v. Town of Farm Ridge, 103 HI. 408), and such liability could have been enforced by appellant and the fence removed by proceeding thereunder,

If, on a bill filed by public officers charging the defendant with the creation of a nuisance per se that in no way affects property rights or the beneficial use of the property by the public and one in which there is a full, complete and adequate remedy at law, a court of equity may decline to take jurisdiction to grant an injunction, then the chancellor did not err in sustaining the demurrer. If, on the other hand, a court of equity must on bills filed by public officers take jurisdiction of all cases of public nuisances per se after the fact has been established at law and grant injunction, the court should have overruled the demurrer.

This court in Seeger v. Mueller, 28 Ill. App. 28 (opinion by Lacey, J.), sustained the lower court in refusing an injunction on a bill filed by an individual to prevent the obstruction of a public road because the proof showed that the public could not make any beneficial use of the land in question, and cited authorities holding that courts of equity are not bound at all times to enforce strict legal rights, and that equity will not do that which will be of no benefit to the party asking it, and only a hardship on the party coerced. On writ of error the Supreme Court affirmed the judgment on other grounds (133 Ill. 86), but said it was inclined to concur in- the view taken by the Appellate Court under the maxim contained in the old books that: 1 ‘ The law does not require any one to do vain and useless things.” The case was cited with others in Lloyd v. Catlin Coal Co., 210 Ill. 460, 470, holding that in the exercise of a sound discretion a court of equity may refuse the writ in consideration of the relative inconvenience and damage that will result from issuing it. Amd again in Allott v. American Strawboard Co., 237 Ill. 55, 64, in support of the statement that “a court of equity is not called upon to do a vain thing, and it will not entertain a bill simply to vindicate an abstract principle of justice.”

The fact that this bill is filed by public officers does not require the court to entirely disregard the question whether, either because of the nature of the case, or because of a complete and adequate remedy at law, no benefit is to result from the relief sought. We find in the text of 31 Cyc. 253, that an injunction to compel the removal of an obstruction in a public highway may be maintained by the county, municipality, or by the State, or by road officials, only, however, on a proper bill in equity showing danger of great and irreparable injury.

It was said in People v. City of St. Louis, 10 Ill. (5 dim.) 351, page 367, that a court of equity may prevent or remove a private nuisance, and it is equally clear that it may do so when the nuisance affects the public generally, though it is not always bound to interfere in either case; and on page 374: “It must not, however, be understood that a court of equity will, in all cases even of public nuisances, interpose its extraordinary powers, for if the ordinary courts of law are equal to the emergency, redress must there be sought.” Roloson v. Barnett, 243 Ill. 130, is a bill for injunction to prevent placing a fence along a public highway. There was a report of the master in chancery recommending denial of the relief sought on the ground that no irreparable damáge to the public would ensue; that the defendant was not insolvent; that a court of equity had no jurisdiction on the theory of preventing multiplicity of suits; and that the complainant had a complete and adequate remedy at law. The chancellor sustained exceptions to the master’s report and entered a decree of perpetual injunction. The Supreme Court recognized the jurisdiction of a court of equity to restrain a public nuisance on the application of an authority representing the public, and noted that by paragraph 5 of section 221 of the Criminal Code (J. & A. 3859), which is declaratory of the common law, it is a public nuisance to obstruct or encroach upon a public highway, but said the remedy by injunction, however, is exercised with great caution in any case, and only in extreme cases until after the right has been first settled at law, citing 29 Cyc. 1221; that injunction is a proper remedy where shutting up a highway is threatened, and cited 10 Ill. (5 Gilm.), supra, ás a case where an entire obstruction was threatened, and adopted the language of the court in that ease: ‘1 That it must not be understood that a court of equity will in all cases, even of public nuisance, interpose its extraordinary powers, for if the ordinary courts of law are equal to the emergency, redress must there be sought.” The opinion closes with the statement that: “A fence on that line would not interfere with public travel or cause irreparable damage,” arid the decree was "reversed and the cause remanded with directions to dismiss the bill. 29 Cyc. 1221, cited by the court, says the jurisdiction of courts of equity over the subject of nuisances is exercised sparingly, reluctantly, with great caution, and- only in extreme cases— at least until after the right and question of nuisance have been first settled at law. It is said in Stead v. Fortner, 255 Ill. 470, 479, that no set of rules for the determination of the question when a court of equity has jurisdiction to abate a public nuisance upon an information filed by a public officer has been promulgated, and necessarily none could be framed which would cover every case, but in a general way it may be said that the court might properly decline to exercise its equitable jurisdiction where public officers are discharging their duties .in the enforcement of the laws, and the ordinary methods are effective in compelling obedience to statutes forbidding the creation and maintenance of nuisances.

Appellant says that its allegation that the traveling public used each of said public highways from the line where the said hedge fence was so constructed to the opposite line of the road should be taken as a statement that the space inclosed by appellee had been actu-

ally used for public travel. The bill so read presents a different case from what we have been discussing, but we do not think it should be so understood. The allegation would be literally true if footmen sometimes traveled along the side of the road as is the custom in country roads where a slight variation in the location of the fence would be entirely immaterial. Appellant also calls our attention to section 1 of subdivision 7 of the Roads and Bridges' Act [Callaghan’s 1916 St. Supp. 10000(105) ] requiring highway commissioners, where practicable, to leave one-tenth of the width of the road on each' side for a sidewalk for the use of pedestrians, and argues that under the allegations of the bill appellee has deprived the town of 7 feet of land available for that purpose; but nothing in the bill advised the chancellor that the space is needed for any such purpose, or that a walk could not be created as well or better along the fence as constructed, and the allegation is not that the town was deprived of 7 feet for any considerable distance. There is no averment of any definite number of feet, except under a videlicet, one purpose of which is to dispense with strict proof. (31 Cyc. 705.) If the allegations of the distance of the fences in the road as charged in the bill had been denied by answer followed by a trial of the issues so presented, appellant to sustain its averments would only have been required to prove that the fences were some appreciable distance over the road line. Rose v. Mutual Life Ins. Co., 144 Ill. App. 434; Columbian Three Color Co. v. Aetna Life Ins. Co., 183 Ill. App. 384; Illinois Midland Ry. Co. v. Farmers State Bank of Newark, 200 Ill. App. 591. We think there is no mistake in treating the bill as presenting a case of encroaching on a road in violation of both common law and statute, thus creating a nuisance per se, but a nuisance resulting in no substantial injury to anybody, public or private.

Language was used in Smith v. McDowell, 148 Ill. 51, which might indicate that on a bill for injunction filed by public officers no question could arise whether there was or not a substantial injury complained of; but we do not think, read in the light of later cases before discussed, it should receive that construction. The court was not there dealing with a ease of no damage, or trifling damage. The provisions of said "section 71 and following sections vary much in importance ; but the legislature had the right to declare what should be considered an obstruction of the road, and we have assumed that encroaching on a highway with a fence is an obstruction whether damage results or not because the legislatiire has so said. If this principle is carried through the construction of the statute in question, throwing weeds in the road, or allowing the cuttings of hedges to' remain there more than 10 days, might be held a nuisance per se, but it would hardly occur to any one to resort to a court of equity to compel their removal. To say that courts of equity may not decline to exercise their extraordinary powers and must grant mandatory injunctions on bills filed by public officers charging such, an obstruction of the road, and that the fact had been established in a suit at law for the penalty, seems to us a violation of the well-recognized rules of procedure in equity.

If the boundaries of the highways were in dispute and the result of this suit would establish them, there would be some reason for a resort to equity and a multiplicity of suits might thus be avoided, but no such question is involved. The court is only asked to compel appellee to remove the fences as it might be asked to compel the removal of hedge clippings had that been the offense complained of.

It is elementary that appellant could not resort to a court of equity for the sole purpose of collecting the penalty. We are of the opinion that the court did not err in sustaining the demurrer, and that the decree should be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John W. Gray, Appellee, v. City of Joliet, Appellant.
    Gen. No. 6,492.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 17

      —what is judicially noticed. Judicial notice will be taken that the population of a certain city is less than a certain number.
    2. Municipal corporations—when city not liable for supplies furnished and services rendered on street improvement assessments. Where one performs services and furnishes supplies to a city in making and preparing street improvement assessments and in spreading them on the assessment rolls, under ordinances providing for the expense thereof, and proceedings under the ordinances are abandoned and no money collected under them, there is no liability on the part of the city.
    3. Evidence, § 32*—presumption as to Knowledge of law. It must be presumed that one performing labor for a city in relation to assessments for street improvements is informed as to the law governing his right of recovery for such labor.

      Appeal from the Comity Court of Will county; the Hon. George J. Cowing, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of facts.
    Opinion filed April 9, 1918.
    Statement of the Case.
    Action by John W. Gray, plaintiff, against City of J diet, defendant, for labor, and services and supplies furnished defendant, in "making and preparing assessments and spreading them on the assessment rolls for street improvements. From a judgment for plaintiff for $870, defendant appeals.
    Edward B. Nadelhoffer, for appellant.
    William C. Mooney, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

4. Pleading, § 455*—when error in affidavit of merits is waived. Any error in an affidavit of merits in failing to mention a specific defense is waived where the parties go to trial with no plea on file and there is no objection to proceeding with the case without an issue joined.

5. Judgment, § 8 —when plaintiff not entitled to after default. In case of a default, if the plaintiff undertakes to prove his demand and the evidence introduced shows he has no legal claim against "the defendant, he is not entitled to a judgment.

6. Appeal and error, § 1802*—when case not remanded. Where a judgment is reversed and there can be no recovery, the case will not be remanded.


text:
    David Thede, trading as Thede Brothers, Appellee, v. Jefferson Deposit Company, Appellant.
    Gen. No. 6,496.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of facts.
    Opinion filed April 9, 1918.
    Statement of the Case.
    Action 'by David Thede, trading as Thede Brothers, plaintiff, against Jefferson Deposit Company, defendant, to recover under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. f[ 5475(29)] the amount of compensation paid to an employee claimed to have been injured due to the negligence of defendant. From a judgment for plaintiff for $474.50, defendant appeals.
    Page, Hunteb & Page, for appellant.

      Abstract of the Decision.
    1. Workmen’s Compensation Act, § 18*—when landlord not liable for injuries sustained by employee of teamsters using elevator. The owner of an office building, the basement of which is occupied by a publishing company, and to which rolls of paper are customarily taken by employees of teamsters from a wagon by means of an elevator worked by hand by such employees, is not liable to one of such employees, the driver of the wagon, for personal injuries received as the result of slipping on a wet roll, while going to the platform to pull up the elevator which had in some way gone down in the shaft, and falling through the open doors down the shaft, which doors had been left open by such employees while unloading another load, so as to warrant recovery by the employer under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. 75475(29)], upon payment of compensation for the injuries received by the employee.
    2. Workmen’s Compensation Act, § 18

      —when employee of teamster injured while using elevator to convey goods to tenant guilty of lacle of due care. An employee of teamsters who is employed with others to unload paper rolls from a wagon into an elevator for transportation to the basement of a building for use by a tenant, and who knows that the doors guarding the entrance to the elevator are open, they having been left open at the time of a previous trip, and, upon observing that the elevator, which, at the time of finishing the work on the previous trip, had been left flush with the platform, had gone down the shaft, after backing the wagon up to the shaft, walks along the top of the rolls to pull up the elevator, which was operated by hand, and slips on a wet roll and fails down the shaft, is guilty of the lack of due care, in avoiding a known danger, and, consequently, his employer, upon payment of compensation under the Workmen’s Compensation Act, cannot, under section 29 of the Act [Callaghan’s 1916 St. Supp. V5475(29)], recover the amount paid from the owner of the building.
    Covet, Campbell & Covet and Thomas C. Anger-stein, for appellee; E. V. Champion and H. A. Egolp, of counsel.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    L. O. Eagleton, Administrator, Appellant, v. Katherine Barnett, Appellee.
    Gen. No. 6,510.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Gifts, § 29

      —when gift inter vivos shown. In citation proceedings by an administrator under section 81 of the Administration Act (J. & A. V 130), to discover assets of the estate alleged to be in the hands of defendant, where it appeared that déceased soon after her husband’s death determined to give defendant, who was not a relative hut who had taken care of her after her husband’s death, a considerable portion of her property other than by will; that afterwards she had part of her property converted into securities that would pass by mere delivery so that she could accomplish her purpose; that she understood that there must be a delivery of the securities in her lifetime; that she declared a few months before her death that she had given them to defendant; and that they were in defendant’s possession after the death of the deceased, evidence held sufficient to show delivery of such securities to defendant and possession by her thereof with sole - control in the lifetime of deceased.

      Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Greek, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Statement of the Case.
    Citation proceedings by L. 0. Eagleton, administrator- with the will annexed of the estate of-Louise De Long, deceased, plaintiff, against Katherine Barnett, defendant, for the discovery of assets under section 81 of the Administration Act (J. & A. ft 130). From a judgment of the Circuit Court awarding the property to defendant and requiring the retention by defendant of $500 for burial expenses, to be accounted for to the court, plaintiff appeals.
    John B. King, Claude U. Stone and Roscos Her-get, for appellant.
    Weil & Bartley, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

2. Witnesses, § 141*—when person claiming gift from person since deceased is competent to testify. One claiming a gift from a person since deceased is competent to testify, in citation proceedings, for the discovery of assets of the estate, as to matters occurring after the death of deceased.

3. Witnesses, § 253*—who can best determine credibility of. The credibility of witnesses can best be determined by those seeing and hearing them testify.

4. Witnesses, § 132*—discretion of court as to permitting party cited to testify. It lies entirely within the discretion of the court, in citation proceedings under section 81 of the Administration • Act (J. & A. If 130), to permit a party cited thereunder to testify at her own request.

5. Appeal and error, § 463*—when objection as to incompetency of witness to testify is too late. Where a stipulation is entered into between the parties to citation proceedings for discovery of assets of an estate that the transcript of evidence used in the Probate Court may be used in" the Circuit Court, and that either party may object to the evidence, but no objection is made to the competency of a witness to testify nor to her testimony until after the entire testimony is in and a decision on the merits indicated by the Circuit Court judge, neither party can complain on appeal.

6. Gifts, § 29*—when mental competency of donor shown. Evidence held sufficient to show that deceased was mentally competent at the time she made a gift of certain securities to defendant, ° who had taken care of her.

7. Evidence, § 134*-—when proper foundation for copy of receipt is shown. Evidence held sufficient to show that a receipt was lost without fault of defendant so as to furnish sufficient ground for introduction of a copy.

8. Witnesses, § 96 —right of party to testify against interest. An interested party may testify against his pecuniary interest in citation proceedings by an administrator for the discovery of assets.


text:
    American Spirits Manufacturing Company, Appellee, v. Western Manufacturing and Oil Company, Appellant.
    Gen. No. 6,515.
    1. Landlord and tenant—when recovery by "landlord for repairs and supplies furnished to repair plant on basis of former charge is proper. Where the owner of a degerminating plant enters into a contract for the lease of its premises and machinery to another company, which, agrees to turn over the machinery to the lessor in as good condition of repair at the expiration of the lease as it was at the beginning and to pay a certain rental, and materials furnished for repairs and supplies necessary for operation of the plant are furnished by the lessor and labor paid for by the lessor .on the basis of a quarter of a cent per bushel of grain mashed, there can be a recovery of the value of labor and materials unpaid for at the prices customarily and previously charged, in the absence of notice by the lessee that it did not desire the practice to be continued.
    2. Assumpsit, Action of, § 93a

      —what is measure of damages in action for money paid for use of another. The measure of damages in an action for money paid for the use and benefit of another is the sum actually paid by plaintiff.
    3. Assumpsit, Action op, § 23*—when recovery under common counts proper. If nothing remains to be done under a contract except the payment of money, there can be a recovery under the common counts.
    4. Landlord and tenant—when notice by lessee to lessor of inotention no longer to be bound by former rate of charges for repairs not shown. Evidence consisting of letters written by the president of the lessee of a degerminating plant to the president of the lessor, held insufficient to show notice by the lessee to the lessor of intention no longer to be bound by an established course of dealing relative to compensation for labor paid for the lessor and the making of repairs and replacements in the machinery by the lessor, and charging the cost thereof to the lessee at an established rate.
    5. Landlord and tenant—when evidence as to number of men employed by lessor inadmissible in action to recover cost of repair of leased machinery. In an action by the lessor of a degerminating plant against the lessee to obtain reimbursement for money advanced for labor employed in the plant on the basis of the customary charge of a quarter of a cent a bushel of grain mashed and for materials furnished for repairs and supplies necessary for operation of the plant at the customary rate, evidence as to the number of men employed by plaintiff at different times was properly excluded in so far as it might tend to show the reasonable value of the work for which a quarter of a cent per bushel was charged.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Stevens, Miller & Elliott, for appellant; Charles H. Stoll, Winslow Evans and Frank E. Grover, of counsel.
    Frank J. Quinn and Joseph A. Weil, for appellee; Alfred S. Austrian, of counsel.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Appellee, a corporation, hereafter called the spirits company, sued appellant, a corporation, hereafter called the oil company, in assumpsit, and filed the common counts. The defendant filed the general issue. There were other pleadings not discussed in the briefs and not material on questions presented here. There was a judgment on a verdict of $5,766.23 for the plaintiff.

It appears from the evidence that February 20,1897, the spirits company was engaged in making spirits and high wines from corn and small grains at Peoria, Illinois, and on that date it entered into a contract with the oil company to sell it its degerminating plant situated adjacent to its Monarch Distillery there, and lease it the land on which it was situated, and furnish it at least 6,000 bushels of com daily for degermination for at least 200 days a year, and on demand any other corn it might use in its business in Peoria, and sufficient power to enable the oil company to properly operate said plant to a capacity of at least 10,000 bushels of com daily; and the oil company in turn . agreed to extract the germ from at least 6,000 bushels '■of com daily and return the com to the spirits company in as good condition as when the same was delivered, the contract to be effective for a period of 40 years from date. October 19, 1898, the companies entered into a written agreement amending said contract, providing that .the oil company should operate at the spirits company’s plant at its G-reat Western Distillery, at Peoria, instead of the former-named plant, reciting that the spirits company was constructing an oil milling department, including proper machinery for degerminating com, at said Great Western Distillery, and granting the oil company for the same term and under the same conditions as set forth in said contract of February 20,1897, the sole and exclusive right to the use of that degerminating and other machinery, and agreeing that all com used at said distillery during the period of said agreement should be delivered to the oil company for, the purpose of being degerminated by it. The oil company agreed to use the said machinery and the privileges therein granted in such manner as not to interfere with the business of the spirits company, and that at the termination of the contract it would turn the machinery over to the spirits company in as good condition of repair as the same then was.

The parties engaged in business as forecast by the modified contract, but in less than 5 years from its date the spirits company commenced to advance money to pay for all labor employed in degerminating the com and making oil and cake at that plant, and the oil company compensated the spirits company therefor on the basis of a quarter of a cent a bushel of grain mashed at the distillery. Monthly statements and balance sheets were issued showing such payments, and that course of dealing continued up to October 1914, when the oil company ceased such payments. The spirits company continued the work and the principal part ($4,776.13) of its account here sued on is a charge at that rate for those services from October 1914 to August 1, 1915. The balance of the account ($990.10) is for the cost of repairs and replacements of apparatus and machinery to keep the plant in order and the work in progress. The oil company, as before noted, had agreed to turn the machinery over to the spirits company at the termination of the contract “in as good condition of repair as the same are at present, ’ ’ and it appears to have been the .uniform practice for the spirits company to charge for and receive payment from the oil company of its necessary disbursements of' that kind while it was so furnishing labor to operate the plant.

The verdict and judgment are for the full amount of the spirits company’s claim. The oil company contends that the plaintiff was not entitled to judgment on proof that said labor and material were furnished and of the cost of the material to the plaintiff, but that there should have been further proof of what such services and material were reasonably worth. It argues also that said apparatus and machinery were in part used in the business of the spirits company, and that there is nó sufficient proof to support the conclusion that the sum of $990.10 was a fair charge to be paid by the oil company; and also that there can be no recovery under the common counts because it says there was no express contract to pay the sums demanded. The spirits company answers that it had the right to rely on the long-established course of dealing and to continue furnishing such labor and material on the terms and prices so established 'until it should receive notice from the- oil company that it would not continue in that course of dealing under those terms, and that it received no such notice before this suit was brought.

We think the spirits company is right in its contention on the law. “Where labor and services are rendered in a continuous employment, the rule is that for labor and services so furnished, a recovery can be had at.the rates previously recognized and paid.” (Glucose Sugar Refining Co. v. Flinn, 184 Ill. 123, 125.) Where an employer continues to receive services without notice of any change in the compensation that has been for a considerable time paid, the employee has the right to presume that the compensation will continue as in the past. If the employer intends to change the terms of the employment to the detriment of the employee, good faith and honesty require that he should give the employee notice and thus enable him to leave the service if not satisfied with the reduction. (Crane Bros. Mfg. Co. v. Adams, 142 Ill. 125, 129.) The same principle applies to money laid out and material furnished for repairs and supplies necessary in operating the degerminating plant. . A request of the oil company that the spirits company expend such money may be implied. (27 Cyc. 837.) The measure of damages in an action for money paid for the use and benefit of another is the sum actually paid by the plaintiff. (27 Cyc. 845:) The benefit to plaintiff may be more or less than that sum.

It is immaterial whether the contract was express or implied. If nothing remained to be done under the contract except to pay over money, there could be a •recovery under the common counts. Expanded Metal Fireproofing Co. v. Boyce, 233 Ill. 284; Concord Apartment House Co. v. O’Brien, 228 Ill. 360; Evans v. Howell, 211 Ill. 85; Shepard v. Mills, 173 Ill. 223. The evidence showed purchase of the material charged for “at the market price”; that there were no discounts or allowances that did not appear in the statements. This was some evidence of the market value of the materials and supplies. Moreover, there was evidence tending to show that the oil company had a representative on the ground that authorized $783.03 of the replacements and repairs in question.

But the oil company contends that two letters of April 21,1915, and April 26,1915, written by its president to the president of the spirits company, afforded notice to the spirits company that it would no longer be bound by the established course of dealing. We find nothing in either or. both of those letters to justify that conclusion. They indicate some personal hostility among officers of the two companies, and some irritation over other correspondence, but there is no indication whatever that the oil company did not expect that the labor and material which the spirits company were furnishing should be settled for under the long-established terms and conditions. The spirits company was virtually operating the degerminating plant as the agent of the oil company. It would not have been justified in suspending operations or operating at a loss for the want of necessary repairs and replacements that it had been for so long a time buying and paying for and charging to the oil company. The proof shows without much contradiction that all these repairs and replacements were necessary, and that their apportionment between the work of the oil company and the spirits company was fair. But the court at the instance of the oil company instructed the jury • that the plaintiff could only recover such amount, if any, as it had proven by the greater weight of evidence was reasonably necessary for the repairs and materials claimed to have been furnished. Under the plaintiff’s instructions the jury’s attention was directed to the necessity of the repairs made and supplies furnished, and the question of the proportionate charge to the defendant of moneys expended. Under these instructions both facts were passed on by the jury and their conclusion should not be disturbed.

Appellant ■ argues that during the period when the' custom was formed, the two companies had common officers and common interests so that it was not very material what price was paid by one to the other; that we should consider the oil corporation as a subsidiary company of the spirits corporation during that period, and not presume that customs established under that condition were intended to continue when the conditions changed. Admitting appellant’s claim that the interests of stockholders of the respective corporations may not have been the same during the period of the account sued on as they were before—though there is little evidence to show that—and further admitting that the facts and circumstances of each individual case must be taken into account in determining whether parties intend in their present dealings to be governed by prices and conditions established in former dealings, still the rule holds that in the absence of any notice or of anything in the changed condition to indicate that either party desires to change the terms of dealing, they would be compelled to settle in accordance with those terms. If those terms were more beneficial than they should have been to either company and had been acquiesced in because it was a matter of little- difference to the real owners of the two companies, and a change was desired by either company when the interest became less identical, it was the duty of the one desiring the change to notify the other.

The oil company offered testimony as to the number of men employed at two or three different times by the spirits company in the work in question, to which the court sustained objections. The testimony was properly excluded in so far as it might show or tend to show the reasonable value of the work for which a quarter of a cent a bushel was charged. That was not an issue in the case. It might have been admissible as showing or tending to show that no such service was performed if it had been offered for that purpose; but it, of itself, did not show that; there was no statement of intention to offer other testimony showing that, and there is no claim that the service was not performed. We find no error in the rulings on the evidence. There is some discussion of the rulings of the court on instructions given and refused. None of them are in conflict with the views of the law and the facts here before expressed; furthermore, but for the question as to the apportionment of some of the charges for replacements and repairs making up the $990.10 item, a verdict might have been directed for the spirits company. There was no evidence to prevent that action of the court as to the $4,776.13 item; therefore, technical inaccuracies in the instructions, if they had occurred, would not have amounted to reversible error.

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

Affirmed.

Mr. Justice Niehaus took no part.


text:
    Joseph E. Thompson, Administrator, Appellant, v. Lawrence P. Hughes et al., Appellees.
    Gen. No. 6,516.
    1. Drainage, § 48

      —when drain commissioners not liable to owner of land for damages because tile is insufficient. Under section 46 of the Farm Drainage Act'(J. & A. If 4523), providing that commissioners failing to perform any of the duties imposed upon them by the act shall individually he liable to a fine of $100 and also be liable to the person injured by such neglect of duty for all damages resulting, commissioners are not liable to the owner of land for damages to crops because the tile is not large enough to carry off the water in wet seasons, in the absence-of a showing that they failed to honestly exercise their best judgment in the discharge of their official duties.
    2. Drainage, § 87*-—what is right of property owner as to having land adequately drained during wet season. While every landowner in a farm drainage district is entitled to drainage that he pays for, it does not follow that every landowner assessed for benefits in the district is, as a matter of course, entitled to have every acre of his land so thoroughly drained that there is no danger of destruction of a crop in an unusually wet season.
    Appeal from the County Court of La Salle county; the Hon. Henry Mayo, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    Browne & Wiley and Butters & Clark, for appellant.
    B. D. Mills and H. M. Kelly, for appellees.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This is an appeal from a judgment for the defendants in an action on the case brought by the administrator - of a landowner in a farm drainage district against the commissioners for damages as provided in section 46 (J. & A. ¶ 4523) for an alleged failure to perform the duties imposed by our Farm Drainage Act.

Barto Thompson, in his lifetime, owned 100 acres of farm land within which was a tract of about 16 acres used as a slough pasture, and within that tract a pond from surface drainage covering 4 or 5 acres. The drainage district of about 4,000 acres was organized in 1908, and included this 100 acres. In 1909 an open ditch was constructed and in the winter of 1910 and 1911 a tile drain extended by the district as a branch for the purpose of draining said pond. The total cost of the combined drainage was about $39,000. Thompson was assessed $1,300 and paid his assessment. Meantime, March 1, 1909, he had leased 160 acres, including this tract, to one Byg for a period of 5 years expiring March 1,1914. In 1911 the tenant, Byg, broke up this low land and raised a good crop of corn thereon. In the spring of 1912 he plowed the land and planted another crop of corn. About the middle of June there was an unusually heavy rainfall, the tile proved insufficient to take care of the water gathered in this natural depression, and the corn on about 4 acres was destroyed, and on 2 more acres injured. July 8, 1912, Thompson served notice in writing on the drainage commissioners charging insufficiency of the drain and asking that the same be remedied. The tenant planted the land in millet, and another heavy rain came in August and drowned out and destroyed that crop.

Barto Thompson died August 8, 1913. This suit was commenced December 17, 1914, by his administrator, the appellant, against Lawrence Hughes, Frank Bawling and Daniel McCarthy, the commissioners. The declaration charged that the defendants were commissioners of said district from and after March 9, 1912; that by reason of the construction of the ditches and drains said lands did not receive adequate drainage, and they neglected and refused to furnish said lands with adequate drainage, and because of such negligence plaintiff’s intestate lost the use of said lands during the years 1912 and 1913.

The evidence showed the loss of crops in the year 1912, as before stated; that in the year 1911 there was a good crop of com raised, and in the years 1913 and 1914 there was little damage from water. It also showed that the rainfall in July and August, 1912, was exceptional and not to be expected in ordinary years. There was a conflict in the testimony as to the necessity and practicability of improving the drain, and how it could be done. One of appellant’s expert witnesses testified that the trouble could be remedied in two different ways, either one of which he spoke of as practicable, and stated the cost of one method would be approximately $7,500.

Appellees’ claim is that appellant has no right of action because the land was rented and it was the tenant’s crop and not the landlord’s that was injured; that the damage in question was caused by unusual conditions not likely to again occur, and that it therefore was not practical or necessary to spend large sums of money on improving the drain; that the trouble arose from want, of lateral drains that should have been furnished by the landowner and not from insufficiency of the main drain that had been constructed by the drainage district; that the main drain (tile) was placed at the time of the construction at a level requested by Barto Thompson, and therefore his representative is estopped from complaining of any damage arising from a defect in that level; and that the commissioners as public officers are in no event liable unless the evidence shows they were guilty of an intentional failure or neglect of duty. The court instructed the jury at the instance of appellant that if they believed from the evidence that a feasible and proper plan might reasonably have been adopted to afford adequate drainage and that the commissioners failed and refused to adopt such plan and change, alter or repair the drains after they had knowledge of the necessity therefor, then they were liable. And at the instance of appellees, if they believed from the evidence that the defect complained of was occasioned by an improper grade that had been established at the request of plaintiff’s intestate, then the plaintiff is estopped from recovering damages occasioned by such improper grade. The verdict for the defendants may have been on either ground. The questions of law and fact involved in the contentions of the parties so far indicated require much investigation and discussion, as well as questions on the admission of testimony, and the giving and refusing of instructions • strongly urged by appellant as error, if under the uncontroverted facts a judgment against the appellees could be permitted to stand.

The first inquiry is whether appellees in accepting the office of drainage commissioners undertook to do more than fairly and honestly exercise their judgment and discretion; whether they became liable to fines and penalties if, in the honest exercise of their judgment and discretion, they performed or failed to perform acts in the discharge of their duties not in accordance with the judgment of some tribunal legally authorized to determine the propriety of their conduct.

Section 41 of the Farm Drainage Act (J. & A. |f 4518) imposes a duty upon commissioners to repair errors in constructing drains and carry out the original purpose so that all the lands as far as practicable shall receive their proper and equal benefits as contemplated when the lands were classified. They may use the funds of the district or make an assessment to raise money for such purpose; that they are charged with a duty under this statute to provide proper drainage is clear from the decision in Peotone & M. Union Drain. Dist. No. 1 v. Adams, 163 Ill. 428; Langan v. Milk’s Grove Spec. Drain. Dist. No. 1, 239 Ill. 430. And they may be compelled by mandamus to levy assessments to make repairs, and are liable to penalties for failure to perform their duties. Cleary v. Hoobler, 207 Ill. 97. Section 46 (J. & A. ¶4523), under which this suit is brought, provides that commissioners failing to perform any of the duties imposed upon them by the act shall individually be liable to a fine not exceeding $100, and also liable to the person injured by such neglect of duty for all damages resulting. The question still remains whether commissioners are liable to penalties under that section if they have failed to exercise the judgment and discretion of ideal competent men, or are to be excused if they have exercised honestly such judgment and discretion as they are gifted with. In private contracts and undertakings of a personal nature like those of lawyers with their clients, and doctors with their patients, it is no answer in a suit for malpractice that the defendant did the best he could. . He must measure up to some standard of proficiency that a court and jury may erect. But we do not think that is true of public officers, of this class. In Binder v. Langhorst, 234 Ill. 583, it is held that commissioners are liable in damages to an owner of assessed land for neglect of their duties, but that their duty is to be measured like that of highway commissioners, and they are only required to exercise in good faith to the best of their ability their judgment, and use the means which the law provides for carrying on the work, and are not liable for an injury occurring without any intentional neglect of duty on their part. The court cites Nagle v. Wakey, 161 Ill. 387. That case was heard on appeal from this court (59 Ill. App. 198) and the opinion of this court by Mr. Justice Cartwright was adopted. It is there said: “It would be against reason to elect commissioners to use their best judgment and then sue them for doing it.” It was said in Pearl v. King, 179 Ill. App. 562, if highway commissioners must sustain their judgment as to the best means of repairing a road by the weight of the evidence, few, if any, men possessed of any property would be willing to imperil it by voluntarily accepting the office of commissioner with its attendant hazards. There is some conflict of authority outside of this State, but the law is here well settled. (Scovill v. Lange, 204 Ill. App. 82, and authorities there cited.) We conclude that appellees were not liable in this action in the absence of any showing that they failed to honestly exercise their best judgment in the discharge of the official duties in question. We find nothing in the evidence indicating any such failure. There is no serious damage complained of except in the year 1912. The first flood of that year occurred before they had any sufficient notice or knowledge of danger to require them to act. The second flood occurred before there was sufficient time to remedy the difficulty even if they had actively undertaken to do so. Whether the lands were or not receiving the benefits contemplated at the time of the assessment is at least a fair question for dispute and difference of opinion, as also whether the remedy could not be obtained by such individual acts of the landowner in laying lateral drains as are required of most landowners in such districts. There is no guaranty in a farm drainage district under ordinary conditions that every acre of land shall be rendered fit for cultivation every year. That is an ideal condition, and in farming the ideal is rarely attained. It is a matter of common observation that in exceptional seasons some low places in cornfields in well-drained lands will drown out because the tile will not take the accumulating water rapidly enough to relieve the crop. While every landowner is entitled to drainage that he pays for, it does not follow that every landowner assessed for benefits in a farm drainage district is as a matter of course entitled to have every acre of his land so thoroughly drained that there is no danger of destruction of a corn crop in an exceptionally wet season. Land only fit for a slough pasture is greatly benefited and enhanced in market value if it is by drainage rendered fit for cultivation in ordinary years, even though in exceptional years a com crop might be destroyed on one-quarter of the tract. The commissioners should, so far as practicable, construct and maintain a drain so that the lands within their district shall receive their proper and equal benefits as contemplated when the lands were classified. This is the duty prescribed by the statute under which they act, but that does not mean that every acre of land must be perfectly drained. If, in some supposable instance, the commissioners under the law are charged with a duty to expend for the benefit of a landowner a great deal more of the district’s money than the market value of the land after it is improved, still three competent and capable farmers, such as are ordinarily chosen to fill that office, should not be subjected to fines and penalties because they fail to comprehend that duty and act in that manner. It is not necessary to determine whether in this case a mandamus might properly issue to compel action on the part of the commissioners to relieve the difficulty in question. If it were conceded that on the evidence in this case relief would have been so compelled if that had been the form of the action, still it by no means follows that appellees were liable for mistaking a duty that a court on a full hearing of expert and other testimony might compel them to perform.

We are of the opinion that under the evidence in this case, read most favorably to appellant, no right of recovery in this action is shown, therefore the judgment is affirmed.

Affirmed.


text:
    First Catholic Slovak Ladies’ Union of the United States of America, v. Anton Florek, Appellee. Ignac Vons and Johanna Vons, Appellants.
    Gen. No. 6,517.

      1. Insurance—when indorsement on benefit certificate of amounts to be paid designated persons shown to be act of insured. On an interpleader by a benefit insurance company to determine the title to proceeds of a benefit certificate, evidence held sufficient to show that the indorsement on the certificate, in which no beneficiary was named, of a statement that specified amounts should be paid the husband of insured, her father and mother, and for burial expenses, was the act of insured. ,
    2. Insurance, § 741

      —when insurance contract construed in accordance with articles of incorporation, by-laws and certificate issued by foreign corporation. Where a benefit certificate recites that it is subject to conditions contained in the articles of incorporation and in the by-laws of a fraternal benevolent society, and that in case of failure of insured to appoint a beneficiary the amount should be payable to persons prescribed in the by-laws in force at the death of insured, and no evidence is introduced showing the statutes of the State in which the society was organized, the contract must be construed in accordance with the provisions of the articles of incorporation, the by-laws and the certificate, where they do not conflict with the laws of Illinois.
    3. Words and phrases—“family” defined. The word “family” has no uniform, definite meaning. It is used to indicate, first, the whole body of persons who form one household, thus including also servants; second, the parents with their children, whether they dwell together or not; and third, the whole group of persons closely related by blood.,

    4. Insurance, § 811*—who considered as member of family of ■insured. The charter of a mutual benefit insurance association providing that the purpose of the association is to “aid and assist its members or their families in case of sickness or death,” and a bylaw providing that the payment of death benefits “shall be confined to husband, wife and children, or to a person or persons of the blood of the member dependent upon the member,” must be construed not to be inconsistent so as to render the by-law void, and to mean that the husband, wife and children may be named as beneficiaries whether they are or are not in need of pecuniary assistance, and in enlarging the class from which a beneficiary might be named to exclude members of the family not of the blood of the insured and those not dependent upon the insured and to include any person of the blood of the insured dependent upon her.
    Appeal from the Circuit Court of Will county; the Hon. Dorbance Dibble, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 9, 1918.
    William C. Mooney, for appellants.
    Kelly & Orb, for appellee; Paul E. Prutsman, of counsel.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Karolina Florek, the wife of the appellee, Anton Florek, and daughter of the appellants, Ignac Vons and Johanna Yons, held a certificate of First Catholic Slovak Ladies ’ Union of the United States of America, a fraternal benevolent society incorporated under the laws of Ohio and doing a life insurance business in Illinois, entitling her beneficiary upon her death to the payment of $1,000. She died August 30, 1916, leaving no child or children. There was no beneficiary named on the face of the certificate, but she had undertaken to provide by indorsement on the back that the amount should be paid, to her husband $70; to her father and mother, $780; and for funeral and burial expenses $150. The society advanced her in her lifetime $50, and it is agreed that $150 of the balance is payable to the undertaker for burial expenses. Her parents claim under said indorsement, and her husband claims to be the sole beneficiary after deducting said $200. The society filed this bill of interpleader, paid the money into court, and was dismissed out of the case. There was a trial on appropriate pleadings of the claims of the husband and parents, and a decree in favor of the husband, from which the parents prosecute this appeal.

Appellee denied the execution by his wife of said indorsement on the policy, but the chancellor found that it was her act. There was some question whether the husband deserted his wife before her death, and the chancellor found that he did not.

Appellee assigns no cross error, but argues that the chancellor erred in finding that the indorsement was the act of the insured. Appellants assume that fact established by the finding in the decree. We think the finding is well supported by the evidence. Appellants point out evidence tending to sustain their contention that appellee deserted his wife, the insured. The proof taken as a whole is satisfactory that appellee and his wife each had tuberculosis for some time before her death. He went to a sanitarium and she went home to her parents because that was the most practical way of living. He contributed to her support, and the family relation existed except in so far as it was necessarily interrupted by that sickness.

It is recited in the certificate that it is subject to conditions contained in the articles of incorporation, and in the by-laws of the society, and that in case of failure of the insured to appoint a beneficiary the amount should be payable “to such person or persons as shall be prescribed in the by-laws of said society in force at the time of the death of said member.” No evidence was introduced showing the statutes of Ohio under which the society was organized; therefore the contract must be construed in accordance with the provisions of the articles of incorporation, the by-laws and the certificate, if they do not conflict with the laws of Hlinois, and there is no contention that they do.

There is a provision in the constitution and by-laws that payment of death benefits “shall be confined to husband, wife and children, or to a person or persons of the blood of the member dependent upon the member.” The decree rests on the fact (which is not disputed) that neither the father nor mother was dependent upon deceased, and the conclusion that therefore they are not eligible as beneficiaries. There is another provision of the by-laws that on failure of the beneficiary named in or on the certificate the sum should be paid to the widower, and' appellee claims under that1 provision.

His claim is supported by the facts so far stated, but appellants offered in evidence what they call the charter of the company and rely upon a statement therein that the purpose for which said corporation is formed is, among other recited things: “To aid and assist its members or their families in case of sickness or death.”

Appellants argue that under this clause in the charter the insured had a right to designate as beneficiary any member of her family, and that the above-quoted clause in the by-laws restricting payment of death benefits to person's of the blood of the member dependent upon the member should be disregarded because by-laws contrary to the charter of the corporation are void. Appellee denies that the charter was in evidence, but the chancellor found that “by the charter, constitution and by-laws of the said Union, in full force and . effect, it was and is provided that the payment of the death benefit ‘shall be confined to husband, wife and children, or to a person or persons of the blood of the member dependent upon the member,’ ” and based his conclusion on a finding that neither of the parents were “dependent upon said Karolina Florek.” Assuming that the charter was in evidence, and assuming without deciding that a by-law limiting the class specified in the charter as beneficiaries would be void, the question is whether the provision in the by-laws should be held an unwarranted restriction of the provision in the charter. The word “family” has no uniform, definite meaning. It is said in Norwegian Old People’s Home Society v. Wilson, 176 Ill. 94, 99: “It is used to indicate, first, the whole body of persons who form one household, thus including also servants; second, the parents with their children, whether' they dwell together or not; and third, the whole group of persons closely related by blood. (Century Diet.) It ‘may mean a man’s household, consisting of himself, Ms wife, children and servants; it may mean his wife and children, or his children excluding his wife; or, in the absence of wife and children, it may mean his brothers and sisters or next of Hn; or it may mean the genealogical stock from which he may have sprung. ’ [2 Story’s Eq. Jur. (13th Ed.) see. 1065b.]” It is recited in the constitution and by-laws that the object of the society is: “To support sick and disabled members in their sickness; to render more tolerable the conditions of their widowers and orphans, and to console and help them in their bereavement, and to raise the orphans to become good members of society.” To effectuate the purposes recited in the charter and in the constitution and by-laws, the association permitted husband, wife and children to be named as beneficiaries whether they were or not in need of pecumary assistance, and in eMarging the class from which a beneficiary might be named, it excluded members of the family not of the blood of the insured and those not dependent upon the insured, and included any person of the blood of the insured that was dependent upon her.- This is the construction given the language of the charter by the corporators, and it seems to us fair, certainly witMn its spiiit, and we do not see that it is in conflict with its letter. The aid and assistance contemplated as indicated by the language of the charter was not to be rendered to the family generally, but only “in case of sickness or death.” It seems within the purpose so . expressed that the aid might be confined to members of the family likely to need pecuniary assistance in case of sickness or death, and likely to receive such assistance from the insured had she survived. The assistance rendered by such benevolent societies is by way of pecuniary aid,to survivors. It may fairly be said that the leading object of such associations is to partially compensate in money dependents of the insured for the pecuniary loss occasioned by the death of the one on whom they relied for support. On appellants’ assumption that the charter and the constitution and by-laws of the association are in evidence, we conclude that the chancellor did not err in construing them. Within the more restricted meaning of the word, appellants were neither of them members of the family of deceased. ' She was a married woman, in contemplation of law residing with her husband notwithstanding the fact that sickness had required their temporary separation. Her husband was at a sanitarium, and she was in the home of her parents as she might have been in a sanitarium or in the home of some other person or persons who could take care of her in her illness. There is some force in appellee’s suggestion that on the authority of Grimme v. Grimme, 198 Ill. 265, the husband was the only surviving member of her family.

The so-called charter is apparently the certificate of the promoters. It is said in National Union v. Keefe, 263 Ill. 453, 458: “In ascertaining the scope of the powers of a corporation organized under a general law the court looks at the certificate of the promoters and the articles of incorporation, and its powers are such, only, as are therein specifically enumerated and such others as are incidental or necessary to carry the express powers into effect.” And that: “A benevolent association may restrict the objects of its benevolence to classes more limited than those which the statute authorizes it to include, and in such case persons not within the restricted classes specified cannot receive the benefits of the association.” It is also said that while an association cannot go beyond the powers contained in its charter, it may restrict the class of beneficiaries within narrower limits than the statute. Several Illinois cases are there discussed and analyzed. Appellants cite cases from the Supreme Courts of Massachusetts and Kentucky holding that a by-law excluding as beneficiaries any class provided for by the charter is void. We do not deem it necessary to examine and discuss the authorities on that quéstion, because we hold there is no such conflict between the charter and the constitution and by-laws; therefore the provisions in the by-laws are valid, and appellants’ claim rests on their contention that they are void.

Finding no error in the record, the decree is affirmed.

Dibell, J., took no part.

Affirmed.


text:
    A. D. Chatelle, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 6,519.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Jo Daviess couuty; the Hon. Oscab E. Heaed, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    "Opinion filed April 9, 1918.
    Statement of the Case.
    Action by A. D. Chatelle, plaintiff, against Illinois Central Railroad Company, defendant, to recover damages for personal injuries sustained as the result of a collision at a highway crossing between defendant’s passenger train and the automobile in which plaintiff was riding. From a judgment of not guilty for defendant, plaintiff appeals.
    The jury rendered a special finding that the bell on the locomotive was continuously ringing from a point 80 rods before the highway was reached.
    Abstract of the Decision.
    1. Railroads, § 735

      —when shown that bell was rung and whistle sounded, on approach to crossing. In an action against a railroad company by an occupant of an automobile to recover for personal injuries received at a highway crossing, due to a collision between one of defendant’s through passenger trains and the automobile, evidence held sufficient to show that the bell of the engine was ringing and the whistle sounding on approaching the crossing.
    2. Instructions, § 10*—impropriety of giving large number of. It is error for the trial court to give a vast number of instructions amounting in the aggregate to a lengthy address by the court on behalf of defendant.
    3. Instructions, § 10*—limitation of number. There can be no hard and fast rule limiting the number of instructions.
    4. Instructions, § 10*—when excessive number given. The giving of thirty-four instructions in behalf of the defendant in a negligence case was error, because of excessiveness.
    5. Appeal and error—when giving excessive number of instructions is harmless error. The giving of an excessive number of instructions is not reversible error where each instruction is accurate and no other error occurs.
    6. Railroads, Ü 733*—when freedom from wanton and wilful negligence in operation of train at high speed is shown. In an action by an occupant of an automobile against a railroad company to recover damages for personal injuries sustained in a collision between the automobile and one of defendant’s passenger trains at a highway crossing near the edge of a town, where it appeared .that the train was a through one and was traveling at the rate of 40 to 50 miles per hour, that an ordinance of the town required a speed limit of 10 miles per hour through the town, and the evidence was conflicting as to the giving of statutory signals on approaching the crossing, evidence held to show freedom from wilful and wanton negligence in the operation of the train.

      Sheean & Fiedler, for appellant.
    Martin J. Dillon and Douglas Pattison, for appellee; John Gr. Drennan, of counsel.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

7. Appeal and eebob, § 1544*—when plaintiff in negligence case cannot complain of error in instructions. A plaintiff in a negligence case cannot complain because of the submission of the case to the jury with instructions that plaintiff could not recover in the absence of proof of ordinary care, on the ground that the declaration charged wilful and wanton negligence as well as ordinary negligence on the part of defendant, where he did not undertake to submit the question of wilful or wanton negligence, but in two or three of his general instructions covering the case told the jury that they could not find for the plaintiff unless they believed he was in the exercise of ordinary care for his own safety.


text:
    Nettie Bassett, Administratrix, Appellee, v. American Surety Company of New York, Appellant.
    Gen. No. 6,524.
    1. Appeal and error, § 1236

      —when question of sufficiency of declaration to support judgment may he reviewed. The question of the sufficiency of the declaration to support the judgment may be brought before the Appellate Court for review notwithstanding the defendant has estopped itself from moving the trial court to arrest the judgment for the same reasons, that it might have urged on the demurrer to the declaration.
    2. Principal and surety, § 8*—how undertaking of surety must he interpreted. The undertaking of a surety must receive a strict interpretation, and his liability is not to be extended by implication beyond the terms of his contract.
    3. Principal and surety, § 25*-—when surety released from liability. As a general rule, any agreement between the principal and party secured, essentially varying the terms of the contract by which the surety is bound without the consent of the surety, will release him from liability.
    4. Principal and surety, § 25*—when surety discharged from liahility on contract. A surety is discharged from liability on his contract where the principal acts in another office or capacity from that designated in the contract of suretyship, or where his responsibilities in the same office are increased.
    5. Workmen’s Compensation Act—when surety on appeal bond, is discharged, from liability by amendment of. The surety on an appeal bond, conditioned upon the due prosecution of a writ of certiorari from the Circuit Court to review the action of the Industrial Board in awarding compensation and payment of any order or judgment rendered against it in case of affirmance, was discharged from liability where section 9 of the Workmen’s Compensation Act of 1911 (J. & A. j[ 5454), authorizing a claimant to procure a lump-sum settlement, subject to rejection by the employer, was amended in 1915 after the bond was given [Callaghan’s 1916 St. Supp. j[ 5475(9)], so as to take away the option of rejection from the employer, and the surety was consequently not liable for a lump-sum settlement awarded, after the passage of such amendment.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.
    Heárd in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 9, 1918.
    Stevens, Miller & Elliott, for appellant; O. P. Westervelt, of counsel.
    Covey, Campbell & Covey, for appellee; E. V. Champion and H. A. Egolf, of counsel.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Nettie Bassett, administratrix, appellee, obtained an order from the Industrial Board of the State of Illinois under the provisions of the Workmen’s Compensation Act of 1913 [Hurd’s St. 1913, p. 1206, Callaghan’s 1916 St. Supp. [[5475(1) et seq.], that the Chicago, Rock Island & Pacific Railway Company should pay her $6.05 per week from April 4, 1914, for a period of 416 weeks as compensation for the death of her intestate, Robert L. Stockton. In January, 1915, the railway company obtained a writ of certiorari from the Circuit Court of Peoria, county to review that action of the Industrial Board and gave a bond in the sum of $3,500, conditioned that it should duly prosecute said writ and pay the amount of any order, judgment, costs and interest rendered and to be rendered against it in case the order and judgment of the Industrial Board should be affirmed in said Circuit Court. Appellant, American Surety Company of New York, was the surety on that bond. The finding of the Industrial Board was affirmed, the Circuit Court ordering that the writ be quashed February 5, 1916. The railway company took the case to the Supreme Court on writ of error and that court on June 22, 1916, affirmed the judgment of the Circuit Court and rendered judgment against the railway company for appellee’s costs taxed at $5 (Chicago, R. I. & P. Ry. Co. v. Industrial Board of Illinois, 273 Ill. 528). Thereafter, November 3, 1916, appellee filed her petition with the Industrial Board for a lump-sum settlement, and on January 12, 1917, the board entered an order fixing $1,608.19 as the amount found on computation under the provisions of the statute of the present worth of the deferred instalment payments. Appellee was paid by the railway company, or appellant, the full amount due her for weekly instalments preceding and not included in the computation fixing the lump sum. She refused to accept payment of instalments that had been included in that computation. She brought this action of debt on the bond against the surety company alone in February, 1917, in her declaration setting out the bond and stating the facts as above noted, excepting the fact that she had refused payments of weekly sums that were included in the lump-sum computation. She alleged as breaches: (1) nonpayment of the lump sum, $1,608.19; (2) nonpayment of $5 costs in the Supreme Court; (3) that the railway company did not prosecute its writ with effect; (4) nonpayment of the weekly instalments included in the lump-sum computation; and added the common counts, but filed an affidavit of claim under section 55 of the Practice Act (J. & A. 8592), stating, in substance, that her demand was for payment of money due under the lump-sum settlement, and that the amount due her was $1,613.19. (The amount of said lump sum and the $5 costs in the Supreme Court.)

The defendant demurred generally and specially to the declaration. The court overruled the demurrer as to the first, second and third assignments of breach, and the common counts, and sustained it as to the fourth assignment. (Failure to make weekly payments.) It is said by appellee, perhaps correctly, that this action of the court amounted to a holding that the obligation of the bond covered the default of the railway company in payment of said lump sum. The court may have sustained the demurrer to the fourth assignment of breach charging failure to make weekly payments of amounts that had been included in the lump-sum computation on the ground that plaintiff could not at the same time demand payment of a lump sum and also of the weekly sums that had been merged in the larger amount; but appellant, instead of abiding by its demurrer, pleaded over to the whole declaration repeating the facts there alleged touching the liability to pay the lump sum, and averred as new matter that it was ready and willing to pay the weekly payments and had offered to do so, but the plaintiff had refused and still refuses to accept them; and answered the charge of nonpayment of costs in the Supreme Court by pleading a tender and payment into court of that amount and of the costs of this case up to the time of the tender. Because an affidavit of claim was filed by the plaintiff, an affidavit of meritorious defense was re-j quired by said section 55 of the Practice Act, and one was filed, stating that the railway company and the defendant had complied with the terms of the bond sued on in making weekly payments up to September 25,. 1916, and since that time the plaintiff had refused and still refuses to receive them; that it had tendered in court the amount of the unpaid Supreme Court costs, together with all accrued costs, and that as to the nonpayment of the $1,608.19, the amount of the award of lump-sum settlement, that sum was granted and allowed to the plaintiff after the bond was given and in a distinct and separate proceeding from the one in review upon which the bond sued on was made and executed, and was not an order or judgment rendered against the railway company in the said proceeding pending before the Circuit Court in which the bond was given. Appellee moved to strike the pleas and affidavit of merits from the files for insufficiency of the affidavit in not setting forth any legal defense to the cause of action declared on. The court sustained the motion, and the defendant, electing to stand by its pleading, judgment was entered as by default for $3,500 debt and $1,613.19 damages.

Under section 9 of the Workmen’s Compensation Act (J. & A. 5454), in force when the bond was given and until July 1, 1915, appellee could on petition to the Industrial Board have a lump settlement named, subject to the right of the railway company to reject payment in that manner. But by an amendment in force July 1, 1915, such option was denied in this class of injuries (Hurd’s St. 1915, 1916, “Employment,” p. 1278, Callaghan’s 1916 St. Supp. | 5475 [1]). In other words, her right to compel the railway company to pay in a lump sum the present value of the instalments rested entirely on a statute enacted after the bond was given. The substantial question in the case is whether the undertaking in the bond to pay the amount of any order, judgment, costs and interest rendered and to be rendered against the railway company in case the order and judgment of the Industrial Board should be affirmed in said Circuit Court raised an obligation to pay some other and different amount for which the company might become liable by reason of subsequent legislation. That question was before the court on the motion to strike the pleas from the files. Perhaps it was necessarily involved in the demurrer to the declaration. Appellee says it was" and argues on the authority of Home Mut. Fire Ins. Co. v. Garfield, 60 Ill. 124, and other early cases, that appellant by pleading over admitted the construction of law and is estopped from raising the question here. Appellant answers that it was necessary to plead to the common counts and to the breach of nonpayment of Supreme Court costs, and necessary to plead- the refusal of appellee to receive weekly payments, and therefore says that appellee’s authorities do not apply. It is unnecessary to discuss the decisions on that question prior to Chicago & E. I. R. Co. v. Hines, 132 Ill. 161. It is there said that the rule is more of form than of substance, and that the question of the sufficiency of the declaration to support the judgment may be brought before the Appellate Court for review notwithstanding the defendant had estopped itself from moving the trial court to arrest the judgment for the same reasons that it might have urged on its demurrer to the. declaration. To the same effect is Chicago, R. I. & P. Ry. Co. v. People, 217 Ill. 164, 172. See also, Gillman v. Chicago Rys. Co., 268 Ill. 305, 310. We conclude the record presents for our determination the question whether the undertaking in the bond was broad enough to create an obligation of the surety to answer for the default of the principal maker in payment of this lump-sum settlement.

It is said in Chicago & A. R. Co. v. Higgins, 58 Ill. 128, 133: ‘£ The undertaking of a surety is to receive a strict interpretation. His liability is not to be extended by implication beyond the terms of his contract. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further.” And in Shreffler v. Nadelhoffer, 133 Ill. 536, 551, quoting from Mr. Justice Story: “Noth-

« ing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of the contract. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change of the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal.” Illinois cases in support of the above rule are there collected. The authorities are again collected in McCartney v. Ridgway, 160 Ill. 129, 159. Among other illustrative holdings, we there find that as a general rule any agreement between the principal and the party secured, essentially varying the terms of the contract by which the surety is bound without the consent of the surety, will release him from responsibility. Any dealings between the principal and obligee amounting to a departure from the contract by which the surety is bound by materially varying ' or enlarging his liability without his consent will generally operate to discharge him. It is said: “The same result will follow, as a general thing, where the principal acts in another office or capacity from that designated in the contract of suretyship, or where his responsibilities in the same office are increased.”

Applying these principles of law to the facts in this case, we see no ground for holding appellant liable for the payment of the amount named in the lump-sum settlement. If appellee had procured a voluntary change of the obligation of the railway company she could not have asked the surety to respond to the terms of the new agreement. We do not see how she can be held in a better position because she was able to and did coerce the change.

We have found few cases where the question of discharge of sureties by change of the obligation of the principal effected by an after-enacted statute has been considered. It is said in 32 Cyc. 226: “If the contract of the principal is changed or enlarged by legislative enactment, or by order of court, the surety is nevertheless discharged.” Schuster v. Weiss, 114 Mo. 158 (21 S. W. 438, 19 L. R. A. 182) is cited among other authorities. It is an interesting case supporting that text.

The rule governing liability of sureties on official bonds may be pertinent to the inquiry whether a change effected by law releases the surety. It is said in 29 Cyc. 1460, that sureties on official bonds are discharged by change in the office which are so great as to make the office quite a different one from what it was when the bond was executed, such as an extension of the term of the office, an enlargement of the territorial jurisdiction. The court in People v. Tompkins, 74 Ill. 482, had such a question under consideration where the principal on the bond came in possession of moneys under the rules and regulations of the commissioners of railroads adopted after the bond was executed, and it was held that the sureties were not liable because they were not chargeable with knowledge that he would be. required to collect and have the custody of the funds in controversy.

In Davis v. People, 6 Ill. 409; Governor for use of Thomas v. Lagow, 43 Ill. 134; and Governor for use of Thomas v. Bowman, 44 Ill. 499, are found discussions of the effect of change of the principal’s obligation by operation of law, and reference to other Illinois cases where it was held that the surety when entering into his contract should have contemplated the right and power of the legislature to change the obligation of the principal. We conclude that the present case falls within that class where the surety cannot be said to have undertaken to answer for the default of its principal in performance of duties and obligations raised by after-enacted laws differing substantially from the obligation of the principal when the bond was executed, and not the result of any judgment entered in the suit in which the bond was filed.

It is not suggested in briefs of counsel that there is any question of the power of the legislature to change the liability of the railway company, or any question whether the Act of 1915 applies to liabilities fixed under the former statute. If there is such a question we have not considered it.

We have assumed from the pleadings and briefs of counsel that there is no deferred unpaid weekly payment not included in the computation of the lump-sum settlement, though the record is not entirely clear on that question. If there is in fact such an unpaid sum it could be recovered under the fourth assignment of breach. If that assignment refers, as we have assumed, to weekly instalments that are included in the lump-sum settlement, appellee could not recover those sums without entirely repudiating the lump-sum settlement, and whether she might in this case put herself in position to do that is a question not here presented.

We conclude that appellee under her declaration was not entitled to judgment for the amount of the lump-sum settlement, therefore the judgment must be reversed and the cause remanded. Either party should be permitted to amend its pleadings, if desired, and questions arising on the pleadings may be again presented and passed on in future proceedings not inconsistent with the views here expressed.

Reversed and remanded.