text:
    Wilbert Bernier, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 6,617.
    1. Negligence, § 128

      —when failure to negative contributory negligence at time of accident cured by verdict. The failure of the plaintiff, in an action against a railroad company for wrongful death, to allege absence of contributory negligence at the moment of the accident, without demurrer by the defendant, is cured by verdict for the plaintiff.
    2. Negligence, § 226

      —when instruction on ordinary care is erroneous. In an action against a railroad company for wrongful death, it is erroneous to instruct that the deceased exercised ordinary care if she exercised due care at the time of her death, without requiring due care in approaching the place of danger.
    3. Appeal and ebrob, § 1544

      —when instruction on contributory negligence not prejudicially erroneous. In an action for wrongful death, an erroneous instruction requiring due care at the time of death, but failing to require due care in approaching the place of danger, is not prejudicial where not directing a verdict and the true rule is subsequently stated in another instruction.
    4. Negligence, § 109

      —when necessary that parents of child exercise due care. In an action for wrongful death of a 16-year-old girl while accompanied by her parents, if the deceased is treated as a child as to the care required of her, then it is necessary that her parents should have been in the exercise of due care.
    5. Railboads—when instruction should state as to when person .is lawfully on tracks. In an action for wrongful death of a person crossing railroad tracks, it is improper to submit the question of law as to whether the deceased was lawfully upon the tracks, without explaining and instructing the jury as to what would be lawful.
    6. Railboads, § 593

      —when instruction on presumption of negligence from violation of speed regulation is erroneous. In an action for wrongful death of a person crossing railroad tracks, it is erroneous to instruct that the law presumes death was caused by the company’s negligence, if the train was exceeding the speed limit, where the evidence is conflicting as to the question of the deceased’s right to be on the tracks.
    7. Railroads, § 527

      —what care required to not injure prospective passengers crossing tracks. The doctrine that a railroad company owes no duty to a licensee upon its right of way except to use due care to avoid injury after his presence is known is modified in relation to prospective passengers passing over the tracks to the station.
    8. Raieboads, § 593

      —when instruction as to extent of duty of engineer as to control of engine is erroneous. In an action for death of a prospective passenger, killed while passing across the tracks to the depot, it is erroneous to instruct that it was the engineer’s duty to keep his train under control at such places so as to avoid injury to persons passing over the tracks, as this makes the railroad company an insurer.
    Appeal from the Circuit Court of Kankakee county; the Hon. Abthtjb W. De Seem, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed February 8, 1919.
    W. R. Hunter, for appellant.
    E. A. MarCotte and J. Bert Miller, 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 Dibell

delivered the opinion of the court.

On October 4,1917, Bernice Bernier, then one month less than 16 years old, and her mother, Mrs. Melvina Bernier, were on a platform in front of the passenger station of the Illinois Central Railroad at the City of Kankakee and were too close to the southbound track, and they were struck by a southbound passenger train then coming into the station, and Bernice was killed. Her administrator brought this suit against the railroad company to recover damages for said death for the benefit of the next of kin. There was a jury trial and plaintiff had a verdict for $2,500, and a judgment thereon, and defendant appeals therefrom.

At said passenger station the railroad tracks run substantially north and south and occupy the full width of a block. East avenue is on the east side of said right of way, and West avenue on its west side. These avenues extend north and south. The passenger station is on the east side of the right of way. From East avenue directly in front of the passenger station, Merchant street runs east. From West avenue opposite the same point, West Merchant street runs west. There is a large population in the city west of West avenue. One block north of Merchant street, West Court street passes above the railroad on a stone viaduct. A block south of Merchant street, Station street crosses the railroad at grade. Merchant street was never laid out from East avenue to West avenue. West of the passenger station-is a wide platform and then the northbound main track, and then a platform, and then the southbound main track. These platforms are for the accommodation of passengers going either way. West of the southbound main track is a platform designed for the benefit of one train called the “Bloomington passenger.” ' West thereof are four switch tracks, which constitute the freight yards of the company. They are at different distances apart, and beyond them is a vacant space before West avenue is reached. For many years people traveling on foot between the parts of the city east and west of the railroad and to whom Merchant street, if extended across the railroad, would be most convenient, and people wishing to go to and from said passenger depot from the west, had been in the habit to some extent of going from West Merchant street to the depot, or in the opposite direction, over all of said six tracks when not blocked by trains or standing cars. Ten or twelve years before this accident the railroad employees at the depot made a cinder path from the west side of the main tracks to the west side of the switch tracks of a width of from 3 to 6 feet, and nearly in what would have been the line of a north sidewalk on Merchant street if it had crossed said right of way; and they did this for their own convenience in conveying ashes from the depot to the west side of said grounds in wet weather. Thereafter people who crossed said grounds there went on said cinder path. Many years ago the railroad put up and thereafter maintained a large sign-hoard on its right of way just east of West avenue and just north of where Merchant street would have been if it had been extended across said right of way, on which signboard in large letters were these words: “Notice—Danger! Railroad Grounds. All persons are forbidden to go upon these grounds or tracks. All persons going thereon do so at their peril.” On the evening in question at about 8 p. m., Bernice Bernier and her mother were on West avenue. They lived at Clifton, south of Kankakee, and wished to purchase tickets from appellant from Kankakee to Clifton, and intended to take a train at about 10 o ’clock p. m. They wished to buy their tickets then, and afterwards go to a place of amusement with Mr. Bernier until train time. They started across said tracks towards the passenger station on this cinder path. A long freight train was then going north on the main northbound track nearest the depot. They crossed the switch tracks and crossed the southbound track. At that time a fast passenger train was approaching from the north on said southbound track. There was a curve some distance north of the viaduct, so that one where they were as they approached the southbound track might be unable to tell on what track a headlight was approaching north of the curve, and, if the northbound track at the curve was obstructed by a freight train, one where they were might not be able to see the headlight until after it passed the curve. Mrs. Bernier did not observe the coming train which was running at a greater rate of speed than the ordinance of the City of Kankakee permitted. She and her daughter could not pass on to the depot because the freight train had not yet got by. The train was making a grinding as if the brakes were set. The clear space between the cars of two trains at that point, one on the northbound and one an the southbound track, was about 6 feet. Mrs. Bernier and her daughter were east of the east rail of the southbound track but so near it that they were struck by that train. There is evidence tending to show that the engineer, as he approached the viaduct, saw them west of the southbound track going east, and could have stopped his train before reaching them if he had then sought to do so. They were not looking towards him. He knew that people often passed over the tracks at that place. He knew the freight train was going by. He concluded they had time enough to get across his track and that they knew what they were doing. He turned his attention from them to the board at the station to see what signal it gave him as it was his duty to do. When he looked again, he saw they were too close to the east rail and he then sounded sharp warnings and did all he could to stop his train.

Some counts of the declaration charged that defendant wilfully and wantonly ran the train against Bernice and killed her. Others set up the facts in relation to said pathway across said tracks and their use by the public and the knowledge thereof by the defendant and that Bernice was going to the station to purchase a ticket for passage on defendant’s railroad. Others .charged negligent operation of the train. Another set out an ordinance of the city limiting the speed of passenger trains to 10 miles per hour, and the violation of said ordinance by this train and the consequent result of the death of Bernice. Defendant pleaded the general issue.

The contentions of the respective parties are as follows : 1. Appellee claims this cinder pathway was a public highway and that deceased was entitled to all the safeguards that railroads are required to furnish at public highways.

2. Appellant contends that these were private grounds of the railway and that deceased and her mother were trespassers and that appellant’s engineer owed them no duty except not to wilfully and wantonly injure them after their presence was discovered.

3. Each side further contends that if its main contention above stated is not sustained, then deceased and her mother were licensees.

4. If licensees, appellee contends that appellant owed them the same duty that it would have owed them at a highway crossing.

5. If licensees, appellant contends that it owed them no duty, except not to wilfully or wantonly injure them after their presence was discovered.

6. Appellee also contends that the proof warranted the conclusion that the engineer in charge of the passenger train was so reckless of the safety of deceased and her mother after he discovered their presence in a place of danger as to warrant a verdict as for a wanton and wilful injury. As the case must be tried again, we refrain from discussing the evidence to determine which positions are warranted by the preponderance of the evidence.

Appellant contends that some counts of the declaration do not state a good cause of action, because they limit the exercise of due care by the deceased to the time while she was crossing the southbound track, whereas it should have alleged that she exercised due care while approaching the same. In City of East Dubuque v. Burhyte, 74 Ill. App. 99, and 173 Ill. 553, there was an absence from the declaration of the necessary averment that the city had notice of the defective and dangerous condition of the sidewalk there involved. There, as here, the declaration was not questioned by demurrer, and it was held that it was good after verdict, upon authorities there cited. We hold that rule applicable here. The third instruction, given for appellee, said that if deceased, at the time of her death, exercised that degree of care which an ordinarily prudent child of her age, capacity, intelligence and experience would exercise under like circumstances, and that she exercised this care at the time of her death, then she exercised ordinary care at the time of her death. Undoubtedly, due care was required to be exercised by deceased while she approached this place of danger, as well as at the exact moment of her death, and this statement ought not to be repeated in that form at another trial. But that instruction did not direct a verdict, and the true rule was stated in No. 16, given at the request of appellant. Some of the instructions given at appellee’s request required due care to be exercised by the deceased, while others require of her only such care as a child of her age, etc., would exercise. If she is to be treated as a child of tender years, then it was necessary that her parents should have been in the exercise of due care (Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424); and if she is to be treated as a child of tender years, instructions based upon the due care of deceased only were insufficient. But these instructions did not direct a verdict, and the true rule is stated in instructions Nos. 15 and 17, given for appellant. Several instructions given for appellee directed the jury to reach certain conclusions, if they found certain things, among them, if they found that deceased was lawfully upon the tracks. No instruction told the jury, except in some very roundabout way, what state of facts would be required to make the presence of deceased upon the tracks lawful. In submitting the question whether deceased was lawfully upon the tracks, without any information as to the rules of law governing that subject, the court improperly submitted a question of law to the jury. The fourth instruction was to the effect that if the train was run in violation of the ordinance the law presumes the death of Bernice was caused by defendant’s negligence. That instruction is supposed to be supported by Winn v. Cleveland, C., C. & St. L. Ry. Co., 239 Ill. 132, but that accident occurred at a highway crossing and that rule is not applicable here, unless deceased was either upon a public crossing or was a licensee. The doctrine upon which appellant relies that it owes no duty to a licensee except to use due care to avoid injuring him after his presence is discovered as laid down in Illinois Cent. R. Co. v. O’Connor, 189 Ill. 559, must be considered modified by Joy v. Chicago, B. & Q. R. Co., 263 Ill. 465, so far as relates to a situation like that shown by the evidence here. See also Neice v. Chicago & A. R. Co., 254 Ill. 595, and also Frechett v. Illinois Cent. R. Co., 197 Ill. App. 213, which the Supreme.Court approved to the extent of denying a certiorari. The seventh instruction submitted to the jury whether they believed from the evidence various things which the appellee’s testimony tended to establish, and then told the jury that in such case under the law it was the duty of the engineer to keep a lookout for persons passing across said tracks at said place and to have his train under control so as to avoid injury to persons passing across said tracks, and that a failure by the engineer to do this under such circumstances would be negligence of the defendant. This made the railroad company an insurer of the safety of persons crossing said tracks. All it should have required of the engineer was to exercise reasonable care to keep a lookout for persons and reasonable care to have his train under control, and the jury should not have been told that he must avoid injury to persons passing over said tracks.

The judgment is reversed and the cause remanded.

Reversed and remcmded.


source: Caselaw Access Project

author: Me. Presiding Justice Dibell

license: Public Domain

text:
    John H. Beckers, Appellee, v. City of Kankakee, Appellant.
    Gen. No. 6,624.
    1. Appeal and ebbob, § 801

      —u>hat must he contained in hill of exceptions. A plea, notice of special matter, and affidavit of claim in an action of assumpsit, stricken from the files, are not a part of the record and not before the Appellate Court for review unless shown by the bill of exceptions.
    2. Appeal and ebrob, § 1306

      —when presumed that court’s ruling on motion justified. Unless a motion, the showing made, and the court’s ruling, are preserved by the bill of exceptions, it will he conclusively presumed that the court’s action was justified.
    3. Attorney and client, § 132

      —what declaration in action for services need not show. In assumpsit for legal services, the declaration need not contain an averment that the plaintiff has been licensed to practice law.
    4. Appeal and ebbob, § 365

      —what may not he first raised on appeal. In assumpsit for legal services, the question of the plaintiff’s license to practice law cannot he successfully raised first on appeal.
    5. Attorney and client, § 133

      —presumption as to existence of license. In assumpsit for legal services, a license to practice law is presumed at least until the question is raised in the trial court.
    6. Evidence—what judicially noticed. The trial court may take judicial notice that an attorney suing for the value of legal services is licensed to practice law in Illinois.
    7. Appeal and ebrob, § 1034

      —what judicially noticed. The Appellate Court may take judicial notice that an attorney, suing for the value of legal services, appeared in appellate litigation for defendant in both Appellate and Supreme Court.
    8. Attorney and client, § 135

      —what constitutes evidence of rendition of services. In assumpsit for value of legal services, it appearing that the plaintiff had previously appeared for the defendant in appellate litigation before the Supreme Court, the record showing that the plaintiff was attorney in this case and that after suit was started the defendant paid the plaintiff a part on account for legal services, is sufficient admission by the defendant and evidence that the attorney did in fact render legal services.
    9. Municipal corporations, § 118

      —when have power to hire additional counsel. In the absence of ordinance or charter provision to the contrary a city has authority to hire additional counsel to conduct litigation so as to become'liable for such services.
    10. Municipal corporations, § 118

      —how defense that employment of attorney is ultra vires is defeated. In assumpsit for the value of legal services rendered to a city, the defense that the employment was ultra vires is defeated by the partial payment by the city after suit started and by the employment of additional counsel by the city in the suit at bar.
    11. Pleading, § 143

      —when affidavit of claim is sufficient to authorise default judgment. Under section 56 of the Practice Act (J. & A. U 8593), making an affidavit of claim prima facie evidence of the amount due, an affidavit of claim in assumpsit for the value of legal services that the plaintiff’s demand is for legal services rendered to the defendant at its request, and that there is due $1,638, is sufficient to authorize and sustain a judgment by default.
    12. Appeal and ebbob, § 801

      —what bill of exceptions need not contain. An affidavit of claim in an action of assumpsit is a part of the record and examinable by the court of review, without a bill of exceptions.
    13. Judgment, § 113

      —what does not defeat judgment by default based on affidavit of claim. A default judgment for the plaintiff based on an affidavit of claim in an action of assumpsit for the value of legal services is not invalidated by the fact that the plaintiff recovered less than the amount set out in the affidavit of claim, because he testified admitting receipt of part payment after suit was started.
    14. Appeal and ebbob, § 800

      —when amount of damages may not be questioned. Upon failure of the bill of exceptions to show a motion to set aside the assessment of damages on default, or any ruling on such motion, the amount of damages cannot be questioned on appeal.
    Appeal from the Circuit Court of Kankakee county; the Hon. Awmim W. De Selm, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed February 8, 1919.
    H. H. Whittemore and W. E. Hunter, for appellant
    John H. Beckers, pro se and J. Bert Miller, 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, an# Cumulative quarterly, same topic anti section number.

   Me. Presiding Justice Dibell

delivered the opinion of the court.

John H. Beckers sued the City of Kankakee for legal services and had a judgment by default for $1,500 from which the city appeals.

The record certified here by the clerk shows that plaintiff filed the common counts in assumpsit, with a copy of account and an affidavit of claim thereto; that defendant filed a plea of the general issue with an affidavit of merits; that plaintiff moved to strike said plea from the files and that motion was heard and granted; that defendant then obtained leave to file a new affidavit of merits, or a verified plea; that plaintiff then filed a bill of particulars and defendant then filed a verified plea; that plaintiff moved to strike the plea and affidavit from the files; that defendant then withdrew its affidavit and plea and moved to strike plaintiff’s affidavit of claim from the files and that motion was heard and denied; that defendant then moved for a rule on plaintiff for a specific bill of particulars, and that motion was granted; that plaintiff then filed a specific bill of particulars; that defendant then moved for a more specific bill of particulars and, on the hearing of that motion, leave was given plaintiff to amend his bill of particulars; that thereafter defendant filed a plea with notice of special matter in defense and an affidavit of merits; that plaintiff moved to strike the plea, notice and affidavit from the files; and that motion was heard and granted, and said plea, notice and affidavit were stricken from the files; that defendant thereafter obtained leave to file pleas and filed a plea and notice of special matter and an affidavit of merits; that plaintiff moved to strike said plea, notice and affidavit from the files; that said motion was heard and granted, and said plea, notice and affidavit were stricken from the files; that defendant was then ruled to plead by a certain day, and thereupon elected to stand by its plea and notice; that defendant was thereafter defaulted and proofs were heard and there was a finding and a judgment for plaintiff for $1,500, and this appeal was prayed by and granted to defendant, and a bill of exceptions was filed.

Appellant contends that the court erred in striking from the files its pleas, notices and affidavits of merits, and argues that contention upon the theory that all of said matter is before this court for review. The bill of exceptions does not contain the pleas, the notices of special matter in defense, the affidavits of merits, the motions to strike them from the files, the showing made upon those motions, the decisions of the court thereon, nor any exception to said rulings. The general rule has long been that all said matters must be shown by the bill of exceptions to present the rulings to a court of review. Snell v. Trustees of M. E. Church, 58 Ill. 290; Gaddy v. McCleave, 59 Ill. 182; Barger v. Hobbs, 67 Ill. 592; Reed v. Horne, 73 Ill. 598; Harms v. Aufield, 79 Ill. 257; Blair v. Ray, 103 Ill. 615; Mullen v. People, 138 Ill. 606; and Mann v. Brown, 263 Ill. 394, are examples. In McClure v. Williams, 65 Ill. 390, it is held that by striking pleas from the files, the record becomes disincumbered of the pleas. In Town of Scott v. Artman, 237 Ill. 394, an action at law, it was implied that the answer which had been stricken from the files should have been included in the bill of exceptions. In Slack v. Harris, 200 Ill. 96, it is held that a count stricken out is out of the case for all purposes, and the same ruling would apply to a plea stricken from the files. This court so held in Witteman Co. v. Goeke, 200 Ill. App. 108. See also, Harmon v. Callahan, 207 Ill. App. 506, and cases there cited. There are two modifications to this rule. By section 81 of the Practice Act, as amended in 1911 (J. & A. ¶8618), no exception to- the ruling is required. There are later cases which seem to imply that the pleading that has been stricken out still remains in the record for purposes of reference, but in all the eases it is held that the motion to strike a pleading from the files and the showing which was made to the court on that motion and the decision of the court upon said motion must he preserved by a bill of exceptions or the motion and the ruling are not preserved for review. Gaynor v. Hibernia Sav. Bank, 166 Ill. 579; Consolidated Coal Co. of St. Louis v. Peers, 166 Ill. 361; People v. American Life Ins. Co., 267 Ill. 504; Firestone Tire & Rubber Co. v. Ginsburg, 285 Ill. 132, and many other cases. Since this opinion was written, Harmon v. Callahan, 286 Ill. 59, has been published. That ease holds that under the rules of the Municipal Court of Chicago an affidavit of meritorious defense is a pleading, and a motion to strike it from the files is a demurrer thereto, and both are therefore in the record without a bill of exceptions on the same principle that the action of the court on a demurrer to a pleading is preserved. But that case also holds to the general doctrine hereinabove stated, that in ordinary cases at law a pleading stricken from the files and that ruling can only be preserved by a bill of exceptions. The reason for the rule is this: The motion to strike from the files does not rest upon any insufficiency in the form of the pleading. That can only be tested by demurrer. The motion to strike must be based upon some other matter which may not be of record. Proofs pro and con are permissible upon the hearing of such a motion. It is conceded in the cases above cited and in many others that there may be just ground to strike any pleading from the files, as that it may have been filed in violation of some rule of court. Moreover, it is not the province of the clerk to preserve for review the rulings of the court upon motions. Hence, if the motion and the showing made upon the hearing of that motion and the ruling of the court thereon are not preserved by bill of exceptions, it will be conclusively presumed that the action of the court was justified by the showing made. Therefore the respective motions by plaintiff and the pleas, notices of special matter and the affidavits of merits filed with the pleas are not before this court upon this record, and the arguments based upon their supposed contents cannot be used to defeat the action of the court.

Appellant contends that as there is no averment in the declaration nor statement in the affidavit of claim nor proof in the bill of exceptions that appellee had been licensed to practice law in the State of Illinois, the judgment cannot stand. This contention is not sound as to the declaration, for a recovery for attorney’s fees under the common counts was sustained in Union Surety & Guaranty Co. v. Tenney, 200 Ill. 349. The only decisions in Illinois to that effect as to the proofs, to which our attention has been drawn, are City of Chicago v. Honey, 10 Ill. App. 535, and Patrick v. Perryman, 52 Ill. App. 514. On the contrary, it is held in substance in Williams v. People, 20 Ill. App. 92; City of Chicago v. Wood, 24 Ill. App. 40; Shendorf v. Gormam, 86 Ill. App. 276; Good v. Lasher, 99 Ill. App. 653; County of Jo Daviess v. Staples, 108 Ill. App. 539; Brunswick v. Hurley, 131 Ill. App. 235, and Woodley v. Zeman, 178 Ill. App. 369, that where a lawyer, physician, dentist and the like, is required by law to take out a license in order to permit him to practice his profession, in a suit by him to recover fees or compensation for services rendered, it will be presumed that he has such license until the contrary appears. Some doubt is cast upon the correctness of these decisions by what was said in North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486, and in Tichenor v. Newman, 186 Ill. 264, expressing a different view, but in each of those cases the suit was not by a professional man against his patient or client for his compensation, and what was there said on the present subject was by way of illustration only, and the point here under consideration was not there involved and could not be decided. In Williams v. People, supra, the opinion, by McAllister, J., stated that there had been a thorough examination of the authorities and full consideration in reaching that conclusion, and in that and in some of the other cases cited above, reference is made to cases in other jurisdictions. Among these are McPherson v. Cheadell, 24 Wend. (N. Y.) 15, and Thompson v. Sayre, 1 Denio (N. Y.) 175, which hold that in a suit to recover for professional services, a license is presumed until the contrary is shown. We therefore hold that in this suit by an attorney for his fees for legal services rendered, a license is presumed, at least until the question is raised in the trial court. This question was not raised in the court below, and we are of opinion that it cannot be successfully raised here for the first time. We think it a fair inference that what happened was that counsel for both parties and the court below knew appellee as a practicing lawyer there, and that the necessity of producing a license did not occur to any of them. It was held in Ferris v. Commercial Nat. Bank of Chicago, 158 Ill. 237, that the court would take judicial notice that certain persons, there named, were licensed attorneys, practicing at the bar of this State. The case before us was tried without a jury, and the trial court in fact had that judicial notice. We take notice that appellee has practiced before this court, both upon briefs and oral arguments, as, for instance, in People ex rel. Dyer v. Clark, 187 Ill. App. 613, 619, and 268 Ill. 156. The reports of the Illinois Supreme Court show that appellee appeared as attorney for this appellant with its city attorney in litigation between the City and the Illinois Central Railroad Company in cases reported in 257 Ill. 298, 258 Ill. 368, 263 Ill. 589, and 264 Ill. 69. The record kept by the clerk and filed here in this case contains the name of appellee in several places as an attorney in this case. Again, the proofs in the bill of exceptions show that after this suit was begun appellant paid appellee $138 upon the account which he sued on, which was wholly for legal services alleged to have been rendered by appellee to appellant at its request. We think this is a sufficient admission that he was an attorney at law and had rendered legal services to appellant at its request, for which he was entitled to recover in this action.

It seems to be contended that as appellant has a city attorney, it has no authority to employ other counsel ; or, if it has such authority, yet to authorize a recovery it must have been shown that there was an ordinance which levied a tax to pay for the services of another attorney, and a special contract must have been proven. It often happens that a city finds it necessary or advisable to hire an attorney to assist the city attorney in important litigation. In Hope v. City of Alton, 214 Ill. 102, relied upon by appellant, there was an ordinance in evidence which showed that the employment of the plaintiff there was void, but the bill of exceptions does not show any such ordinance in force here, and in the absence of an ordinance the general rule is stated in Hope v. City of Alton, supra, on page 105, as follows: “A municipal corporation which may sue and be sued, or which has legal business to transact, unless restrained by its charter, may employ attorneys to conduct such business.” Moreover, the proofs that since this suit was begun the city paid appellee $138 on the account sued on, conceded that he had a lawful claim due him in this case as an attorney at law. It is worthy of note that both in the court below and in this court another attorney appears with the city attorney for the city.

, The affidavit of claim filed with the declaration and sworn to by the plaintiff, says “that the demand of the plaintiff in the above entitled cause is for legal services rendered to the defendant at its request, and that there is due to the plaintiff from the defendant, after allowing to it all just credits, deductions and set-offs, $1,638.” The statute, section 56 of the Practice Act (J. & A. ¶ 8593), made this affidavit prima facie evidence of the amount due. The form of this affidavit was approved in New York Nat. Exchange Bank v. Reed, 232 Ill. 123, and it was there said that it entitled the plaintiff to judgment unless defendants filed with their plea an affidavit of merits. In Mayberry v. Van Horn, 83 Ill. 289, plaintiff moved for judgment for the amount stated, less a certain sum set up in an. affidavit of merits, and that motion was granted and judgment entered on such motion, and it was affirmed. In the present case the affidavit of claim is not mentioned in the bill of exceptions. In Henry v. Meriam & M. Paraffine Co., 83 Ill. 461, plaintiff filed with his declaration an affidavit of claim, showing the amount due him, and defendant filed with his plea an affidavit of merits as to $40, and plaintiff moved for judgment for the amount sued for, less said $40, and that motion was granted and judgment so entered, and it was affirmed. In Rodgers v. Ridgley, 205 Ill. App. 22, judgment on default was entered for the amount shown to be due by the affidavit of claim, and this was affirmed. In none of the cases just cited is there any suggestion that the affidavit of claim was preserved in a bill of exceptions. In Healy v. Charnley, 79 Ill. 592, it is said that the affidavit of claim filed with the declaration under a statute similar to our present Practice Act, though no part of the declaration itself, was a pleading authorized by the statute. In McKenzie v. Penfield, 87 Ill. 38, speaking of an affidavit of claim filed by the plaintiff with his declaration, it was said that affidavits of this kind so far partake of the nature of pleadings that they must be dealt with on the same principles. In J. S. Keator Lumber Co. v. Thompson, 144 U. S. 434, a case from Illinois, speaking of such an affidavit of claim filed with the declaration, the court 'said that the affidavit, though no part of the declaration itself, was a statutory pleading. That the declaration is modified and restricted by the affidavit of claim filed therewith and that the pleas are likewise modified and restricted by the affidavit of merits filed with them, so that said respective pleadings are controlled by such affidavits, is held in numerous cases cited by us in Miller v. Thomas, 200 Ill. App. 125, and Reddig v. Looney, 208 Ill. App. 413. Such affidavits are pleadings in the sense that they limit the issues to be tried. It is true that in Garrity v. Lozano, 83 Ill. 597, the general rule was stated that affidavits filed in an action at law are not parts of the record unless made by so by a bill of exceptions, and this was applied to an affidavit of claim filed with a declaration. But an examination of that opinion shows that the majority of the court examined the affidavit and held it sufficient, though it was not in the bill of exceptions, and therefore in effect held it a part of the record though not in the bill of exceptions, which is in accord with the general rule hereinabove stated, as it had not been stricken from the files. What follows in that opinion seems to have the language of the writer of the opinion (not in harmony with the majority of the court) in finding a ground on which he could agree with the majority on the result. In Barritt v. Steidinger, 196 Ill. App. 229, we said that an affidavit of merits filed with a plea was not before us because not in the bill of exceptions. But that was not necessary to our decision, and of the cases we cited on that point none of them related to an affidavit of claim or merits filed with a pleading. We withdraw what we there said concerning an affidavit of merits. We conclude that such statutory affidavits are a part of the record for the purpose of limiting the issues to be tried, unless they have been stricken from the record, and that while they so remain a part of the record they are examinable by a court of review without a bill of exceptions, and that such affidavit of claim is therefore a part of the record on which to base a judgment by default. Whenever they are stricken from the files they cease to be a part of the record until placed therein by a bill of exceptions. The declaration in this case and the affidavit of claim filed therewith were not stricken from the files, and are therefore a part of the record without a bill of exceptions, and said affidavit of claim authorized and sustains this judgment on a default. The default not only admitted that plaintiff had a valid claim against the defendant under the declaration, but it also admitted the truth of the affidavit of claim, and no evidence was required to prove it. The statute and the default authorized a judgment for plaintiff and against defendant for the amount stated in the affidavit. The fact that plaintiff recovered less because he admitted a payment by defendant since the suit was begun, which payment defendant did not plead, does not affect the validity of the judgment. The only object of plaintiff in testifying was to acknowledge that since the beginning of the suit the city had paid him $138 on this account. He could have made that deduction by motion without testifying, as shown in cases above cited. He also testified that there was then $1,500 due him from the City of Kankakee by reason of the claim alleged in the declaration. This testimony was sufficient to support the judgment.

In the case at bar appellant did not move to set aside the assessment of damages. It is held in Wanack v. People, 187 Ill. 116, on the authority of several cases there cited, that where the bill of exceptions does not show any motion by defendant to set aside the assessment of damages, nor any ruling on such motion, the defendant cannot raise in a court of review any question on the amount of damages allowed. This was followed in Fry v. American Ins. Co., 155 Ill. App. 384, in an opinion written by one of the present judges of the Supreme Court.

We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Dibell

text:
    George M. Wells, Appellee, v. Manufacturers & Merchants Life Association, Appellant.
    Gen. No. 6,630.
    1. Cobpobaitons, § 515

      —what is sufficient basis for introduction of note of corporation in evidence. In an action on the promissory note of an insurance company, proof of due execution of the note in the name of the corporation by its president is sufficient to authorize its introduction in evidence, as the president’s authority to sign the note is presumed until the contrary is shown.
    2. Bills and notes, § 411

      —who has burden of proving fraud. The indorsee of a promissory note is presumed to be a bona fide purchaser under section 59, Negotiable Instruments Act (J. & A. f 7698), and the burden of proving fraud, etc., is on the defendant,
    3. Corporations, § 450

      —when company has power to issue negotiable paper. An insurance association has power to issue negotiable paper under a statute authorizing it to make contracts and to take, purchase, hold and dispose of real and personal estate for corporate purposes.
    Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 8, 1919.
    C. E. Botseord and Bruce H. Garrett, for appellant.
    J. E. Goembel and Boy F. Hall, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

George M. Wells brought this action of assumpsit upon a promissory note issued by the Manufacturers & Merchants Life Association, dated October 15, 1913, due January 1, 1914, for $1,000, with interest at 6 per cent until paid, payable to the order of O. M. Erwin, and by him indorsed to plaintiff. He filed a declaration containing a special count on the note and the common counts, together with an affidavit of the amount due thereon. Defendant filed a plea of the general issue, verified by affidavit, in which it was also stated that the payee did not assign the note to plaintiff, and also a second plea that said note was ultra vires. To that plea plaintiff replied that defendant did have authority to execute said note, and that plaintiff did not have notice when he purchased and paid for said note of the matters and things mentioned in said plea, and that plaintiff was entitled to recover in manner and form as charged in the declaration. Defendant also filed a third plea, in which it charged that said note was obtained by fraud and falsehood of C. M. Erwin, whereby the consideration for said note had failed. To that plea plaintiff replied that if there was any fraud on the part of C. M. Erwin, plaintiff had no notice thereof and did not know the same when he purchased and paid for said note, and that plaintiff was entitled to recover as alleged in his declaration. There was a jury trial. At the close of all the evidence the court denied a motion to instruct the jury to find for the defendant and gave an instruction, requested by plaintiff, directing the jury to find for plaintiff and assess his damages at $1,251.65. Such verdict was returned, a motion by defendant for a new trial was denied, judgment was rendered upon the verdict and against defendant and it appeals.

The note was executed in the name of the corporation by M. 0. Bement, president. Bement testified that he was the president and wrote that signature while he was president. Plaintiff testified, that the indorsement of C. M. Erwin on the note was written in his presence by 0. M. Erwin and that Erwin then delivered the note to bim and he bought it of Erwin and had possessed it ever since. It is argued by appellant that this evidence was insufficient to authorize the introduction of the note in evidence as against the verified plea. It is held in Bank of Minneapolis v. Griffin, 168 Ill. 314, and Anderson Transfer Co. v. Fuller, 174 Ill. 221, that a corporation acts through its president, and that an act pertaining to the business of the corporation, not clearly foreign to the general power of the president, done through him, will, in the absence of proof to the contrary, be presumed to be authorized to be done by the corporate body. In George E. Lloyd & Co. v. Matthews, 223 Ill. 477, a suit upon a guaranty by a corporation on the back of a promissory note, where defendant pleaded the general issue and a special verified plea, denying the execution of the guaranty and where it was contended that special authority in the president to sign the. guaranty must be shown, it was held that where a contract was properly executed for the corporation by its president and was such a contract as the president might lawfully make, proof of the execution by the president was all that was required, in the absence of evidence showing that the contract was not made by the authority of the corporation. The act under which defendant was incorporated gave it power to make contracts in relation to its business, and authorized it to take, purchase, hold and dispose of real and personal estate for the purposes of the corporation. The corporation might very properly have occasion to give a promissory note in the execution of its corporate powers. Appellee’s evidence therefore justified the court in overruling the objection and permitting the note to be introduced in evidence, and that made a case for plaintiff. McCormick v. Unity Co., 239 Ill. 306.

It is the established doctrine of this State that, in the absence of proof to the contrary, the indorsee of a promissory note is presumed to have taken it in due course before maturity for value and in good faith, and he who questions the fairness of the transaction must, to defeat a recovery, show that it was obtained by fraud and circumvention. This principle is laid down in Depuy v. Schuyler, 45 Ill. 306; Clarke v. Newton, 235 Ill. 530; Mann v. Merchants’ Loan & Trust Co., 100 Ill. App. 224; Freehold Bank v. Kennedy & Wright Co., 148 Ill. App. 310. Section 59 of the Negotiable Instruments Act (J. & A. ¶ 7698) provides that every holder is deemed prima facie to be a holder in due course, and section 52 (J. & A. ¶ 7691) defines what is meant by a holder in due course, and a part of that definition is that he became the holder of it before it was overdue, and that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. There was no proof tending to show that appellee, when he boug’ht this note from Erwin, had any notice of the circumstances now relied upon by appellant to defeat it or that this note was then overdue. Inasmuch as appellant had power to conduct transactions in which promissory notes might properly be given, we hold that under the condition of the proof above stated, appellee is not subject to be defeated by any of the circumstances which appellant sought to prove, regardless of the question whether said circumstances would tend to defeat the note if appellee had bought it when it was overdue, or with knowledge of the facts relied upon by appellant. No proof was introduced to sustain the third plea. Appellee was therefore entitled to recover the principal and interest due upon the note. Our attention is not called to any testimony showing a computation producing the result named in the instruction, but it is not claimed in the assignment of errors or in the argument for appellant that the amount is excessive, if appellee was entitled to recover.

The judgment is therefore affirmed.

Affirmed.


text:
    Charles H. Woodburn et al., Appellees, v. John R. Russell, Appellant. George S. Olmstead, Appellee.
    Gen. No. 6,645.
    1. Equity, § 174

      —what is effect of answer admitting allegations in bill. A bill to enjoin an encroachment on a building line alleging interest in one complainant, and an answer admitting such interest, dispenses with the necessity of further proof on that point.
    2. Building restrictions and regulations, § 3

      —what constitutes a building. A billboard 14 feet high with sides 52 feet long is a building within the meaning of a restriction on buildings beyond a certain building line.
    3. Building restrictions and regulations, § 3

      —what considered in determining whether restriction violated. In determining whether a billboard is a building so as to violate a restriction on buildings beyond a certain building line, the law may take into consideration the object and purpose of the restriction and the nature and effect of the structure.
    4. Nuisance, § 4

      —what constitutes. A billboard erected beyond an agreed building line in a restricted residential neighborhood is a nuisance.
    5. Building restrictions and regulations, § 4

      —what does not bar enforcement of building-line restriction. The fact that the complainant, the vendor of lots, moved an old building on one of the rear lots and permitted the defendant to do the same, in violation of the building restriction, does not bar the complainant from enforcing a building-line restriction against the defendant in regard to another lot in a much more choice location in the same subdivision.
    6. Building restrictions and regulations, § 4

      —when substitution of new owners proper in suit to enforce building-line restriction. In a suit to enjoin the violation of a building-line restriction, it is not error to allow the bill to be dismissed as to parties subsequently disposing of their interest in adjoining lots, and to substitute the new owners.
    7. Building restrictions and regulations, § 4

      —when substitution of parties complainant does not affect decree. A decree making perpetual the original temporary injunction against violation of building-line restrictions does not refer to the original complainants but to the language of the injunction as against the defendants, and it is immaterial that new adjoining owners have been substituted for the original complainants since the original injunction was obtained.
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 8, 1919.
    Carl E. Sheldon, for appellant.
    J. J. Ludens, for appellees.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

In the early part of 1911, Charles H. Woodburn owned about 17 acres of land lying a short distance west of the west limits of the City of Sterling. The tract was oblong and not entirely regular in its boundaries. Its length from north to south much exceeded its width from east to west. The Lincoln highway passed along its south boundary. Woodburn subdivided the tract into 81 lots with streets and alleys, and called the subdivision “Meadow Lawn.” The subdivision was intended for residential purposes. He planned to have the lots sold on time with numerous small payments. He prepared and had printed a form of contract, on which such lots were to be sold, the ninth clause of which was as follows: “It is hereby agreed between the parties hereto that they nor their heirs or assigns shall move or cause to be moved on said land or lots any old building, nor build any building closer than thirty feet of front line of said lot or lots.” He contracted to convey this property to Goodrich & G-oodrich, a real estate firm, and they sold lots under this arrangement, and Woodburn made deeds when they directed. John B. Bussell acted as their agent in efforts to sell said lots, and knew of said clause in the contracts. In December, 1911, G-oodrich & Goodrich conveyed their interests back to Woodburn, and he thereafter sold numerous lots. It was intended that said restrictive clause should be in all the deeds, but through some mistake or oversight it was omitted from deeds of five lots. In all other cases it was inserted, both in the contract and in the deed. Lots 1 to 9, inclusive, were on the south end of the subdivision and faced the Lincoln highway. These were the most valuable lots in the subdivision. Woodburn entered into a contract with Fred S. Ivey to sell him Lot 7 on said Lincoln highway and the contract was upon said form and contained said ninth clause. Ivey sold and assigned his contract to John R. Russell. Russell made a verbal contract with George S. Olmstead, whereby he authorized the latter to erect thereon a billboard at a rental of $10 per year, said billboard to remain thereon for one year and as much longer as the party pleased, but Olmstead agreed that if Russell wished to use the lot for other purposes, he would remove the billboard in 30 days. The billboard was to come within about 10 feet of the front of the lot. It was to be built upon poles from 8 to 12 inches in diameter, set deeply in the ground. The sides of the billboard were to be 52 feet and 5 inches in length and to be 14 feet high, and the posts were to project from 18 inches to 4 feet above that. The sides were to be of solid metal or other material. The rear end was to be 14 feet wide and was to be open except for braces across from the top of the poles to the ground, or to posts near the ground. There were to be three rows of stringers on each of the two sides, the first, 2 feet above the ground, the last, 14 feet above the ground, and another in the middle. The structure was to be open to the sky. Olmstead intended to place upon the sides of said billboard, when completed, posters and advertisements of different kinds of business for money consideration, and also advertisements of shows which he was conducting, or intending to conduct. Woodburn learned of this soon after its erection was started and went to the premises and ordered Olmstead to stop, and he did stop for the time being. Bussell was in arrears on his contract and Woodburn sought to forfeit it, but Bus-sell tendered him the full amount due and Woodburn accepted it and deeded said Lot 7 to Bussell, but placed in the deed not only said restrictive clause, but also a statement that he was not to be estopped from contending that said covenant applied to the structure then in process of erection on said lot. Bussell accepted the deed, and Olmstead then resumed work upon said billboard. Woodburn and the holders of contracts for Lots 6 and 8 next adjacent to said Lot 7 filed a bill for an injunction against Bussell and Olmstead to restrain the erection of said billboard as a violation of said covenant. Affidavits were filed in support of and against said injunction and a temporary injunction was granted upon an injunction bond, which was given. Thereafter the holders of .said contracts for Lots 6 and 8 disposed of their contracts to Woodburn, and he made another contract for one of said adjacent lots. Thereafter Woodburn and Thomas Darin and Oliver Pittman filed an amended bill against Bussell and Olmstead and Mrs. Dosha Bussell, wife of Bussell. She had a deed of Lot 9 and it did not contain said covenant. It does not appear that she was summoned. She joined in a demurrer to the amended bill, which was overruled, but did not answer, and no further notice of her was taken in the litigation. The cause was referred to a special master, and he took the proofs and made a report favorable to the complainants, except that he reported that the proofs did not show that Darin had any interest and therefore he was not entitled to a decree. Both sides filed objections to said report, which were overruled. The cause was heard before the court on said objections, standing as exceptions, and they were all overruled except the ruling as to Darin. That part of the master’s report was overruled and properly, because the amended bill alleged Darin’s interest and the answer admitted it, so that no proof was necessary as to him. There was a decree making the injunction perpetual and requiring the removal of that part of the billboard which had been put up. Russell appeals from that decree.

The main litigated question is whether said billboard, if completed according to the proposed plan, is a building within the true meaning of said contract. In 9 Corpus Juris, 684-687, and especially in the notes upon said pages, are references to many decisions in many jurisdictions as to the meaning of such a covenant. They show that in some jurisdictions this billboard would be regarded as a building, and in others that it would not. It would serve no useful purpose to discuss those decisions and the reasoning upon which they are founded. Undoubtedly it is true that in customary use the word “building” is most frequently applied to an inclosed structure, intended for the residence of human beings, or as a place where animals may be kept protected from inclement weather, or as a place for the storage of goods. Nevertheless, it is also true that courts will look to the surrounding circumstances and will place themselves in the position of the parties. It is clear from the proof as to the purposes for which this contract was made and for which it was intended that these lots should be sold, that it was thereby intended to establish a building line 30 feet back from the front of the lots and to give the owner of each lot a clear view across the other lots in the same tier and to give free passage for light and air. The proposed structure would be a complete violation of the purposes for which this covenant was inserted in the contracts, and would completely obscure vision for 14 feet above the surface and would in a limited way obscure the light and air. The original and the amended bill each charged that this would be a nuisance, and we are of the opinion that such a structure in a residential neighborhood as this was designed to "be would be a nuisance. Bussell not only by virtue of Ms own contract and deed, but also by the information he obtained as agent for Goodrich & Goodrich in the sale of said lots, was fully advised of the restriction. The proof is clear that such an erection would make all the lots in that tier less valuable for residential purposes and would dimiMsh the price for which they could be sold, and would reduce the ability to sell the other lots. We have reached the conclusion that under the principles laid down in O’Gallagher v. Lockhart, 263 Ill. 489, and Wolf v. Schwill, 282 Ill. 189, and the cases there cited, this structure must be regarded as a violation of the covenant, and also miust be regarded as a nuisance.

Woodburn had previously moved an old house to Lot 71, and it is contended that he thereby barred himself from enforcing the covenant above set out. Lot 71 was at the extreme north end of the subdivision, far distant from Lot 7 and the Lincoln Mghway, and bearing no relation thereto except that it is in the same subdivision. There was no proof as to the condition of the house or whether it was a desirable residence, or could be made so by the use of paint, and no description whatever of the bmlding, except by the use of the word “old.” Bussell moved an old building to another lot, remote from the Lincoln highway, and he claims that Woodburn did not object thereto, and that he thereby abandoned the restriction. Woodburn testified that he did strenuously object to that building. We are of opinion that these matters did not prevent the relief sought.

Much criticism is made of the course permitted by the trial court in allowing the bill to be dismissed as to two of the original complainants after they had ceased to have any interest in lots abutting on the Lincoln highway and substituting others as complainants who had acquired their interests in such lots after the original bill was filed. Without discussing in detail the proceedings had on that subject, we think it sufficient to say that we find no reversible error therein. The decree made the original injunction perpetual, and it is contended that that meant an injunction in favor of the original complainants, whereas two of them were not then in the case. This does not refer to the names of the complainants, but to the language of the injunction as against Bussell and Olmstead. No error is found in this.

We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.


text:
    Elgin National Bank, Appellee, v. Frank A. Goecke et al. William Mair and A. T. Rogers, Appellants.
    Gen. No. 6,648.
    1. Bills and notes, § 331

      —what not defense available to accommodation indorser. Under sections 29, 63, 64, Negotiable Instruments Act (J. & A. HIT 7668, 7702, 7703), defining the rights and liabilities of accommodation indorsers, lack of consideration for the indorsement is no defense even against a purchaser after maturity with notice.
    2. Bills and notes, § 251

      —when defense that notes were to be used for specific purpose not available against purchaser after maturity. Under sections 29, 63, 64, Negotiable Instruments Act (J. & A. Kt 7668, 7702, 7703), defining the rights and liabilities of accommodation indorsers, the defense that the notes were to be used for a specific purpose is not available as against a purchaser after maturity without showing that he had notice of such purpose.
    3. Bills and notes, § 240

      —when bank bona fide purchaser as to accommodation indorsers. A bank taking a corporation’s note with accommodation indorsers at the time of, and as security for, the renewal of an earlier personal note given for money loaned the corporation, is a bona fide purchaser as to the accommodation indorsers.

      4. Bills and dotes, § 307

      —when renewal of principal note does not discharge collateral. A bank taking a corporation’s note with accommodation, indorsers at the time of, and as security for, the renewal of an earlier personal note may enforce the collateral note against accommodation indorsers, notwithstanding several subsequent renewals of the principal note.
    5. Contribution, § 1

      —necessity of accommodation indorsers paying judgment as basis for obtaining. Accommodation indorsers on a promissory note given as security for another earlier note are not entitled to the earlier note or to enforce contribution on being sued until they have paid the judgment.
    6. Bills and notes, § 298

      —when nates properly canceled upon talcing new note. A bank having purchased several promissory notes by a corporation and received payment from the corporation through the delivery of one new promissory note for the aggregate amount with accommodation indorsers, is under no duty to refrain from canceling and to preserve the old notes for the benefit of the accommodation indorsers.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed February 8, 1919.
    Murphy & Lyon, for appellants.
    B. S. Egan, John M. Baymond and John K. New-hall, 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 Dibell

delivered the opinion of the court.

The Elgin National Bank, hereafter called the bank, sued Frank A. Goecke, William Mair, A. T. Bogers, Franz Walther and the Elgin National Brewing Company, hereafter called the brewing company, in assumpsit. The defendants were all served. Thereafter the suit was dismissed as to the brewing company. The original declaration and the amended counts were only against the four persons named as defendants, yet the clerk retained the brewing company’s name in the title of the cause in the court proceedings. Mair and Rogers filed seven pleas. The first was nonassnmpsit, and issue was joined thereon. Plaintiff demurred to the remaining six pleas, and this record does not show that said demurrer was ever acted on. The parties waived a jury and went to trial by agreement with the issues in that condition. As the trial was without a jury, the court permitted defendants to put in evidence some matters which were not competent, without ruling upon objections thereto, and afterwards disregarded such testimony in the decision. There was a judgment for the plaintiff for the full amount claimed, and it was against each of the defendants by name, including the brewing company, which was not named in the declaration, and which had been dismissed. Hair and Rogers appealed. According to the record, the appeal was granted by and allowed to all five defendants, but according to the bill of exceptions, it was prayed by and granted to Hair and Rogers alone. These imperfections are not relied upon by counsel for either party and we therefore pass them by.

The case stated in the declaration is upon two promissory notes executed by the brewing company, the first dated September 30, 1912, for $3,000, with interest at 7 per cent per annum, payable to the order of “Ourselves” and by said brewing company indorsed upon the back, and also indorsed by said four persons named as defendants, and alleged to have been delivered to the plaintiff for value received, and the second note, bearing date October 30,1912, for $2,500, payable to the order of itself on demand, with interest at 7 per cent per annum, and indorsed by said brewing .company and by said four individuals, and alleged to have been given to plaintiff for value received. Each of said four persons named as defendants were accommodation indorsers. The liability of Hair and Rogers as accommodation indorsers on these notes is the litigated question, and sections 29, 63 and 64 of the Negotiable Instruments Act (J. & A. ¶¶ 7668, 7702, 7703), are important. They are as follows:

“Section 29. An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party, and in case a transfer after maturity was intended by the accommodating party, notwithstanding such holder acquired title after maturity.”

“Section 63. A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he clearly indicated by appropriate words his intention to be bound in some other capacity.”

“Section 64. Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules:

“1. If the instrument is a bill or note, payable to the order of a third person or an accepted bill, payable to the order of the drawer, he is liable to the payee and to all subsequent parties.

“2. If the instrument is a note, or unaccepted bill payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer.

“3. If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee.”

The accommodation indorsers were each interested in the brewing* company. Some of them were officers and others stockholders only. Hair and Rogers each had stock as collateral security for a loan each had made to the brewing company. Though their interest was slight, they each had a pecuniary interest in the company. They received no direct consideration for indorsing these notes, and they seem to contend that for that reason they are not liable to the bank thereon. That contention is answered by the provisions of the statute above quoted, and also by Naef v. Potter, 226 Ill. 628, where it is said that the nature of accommodation paper presupposes that no consideration was given for it, and if the accommodation indorser could defeat the note because he received no consideration, that would eliminate accommodation paper from commercial transactions, and that under the law in this State the transferee of accommodation paper, even after maturity and with notice that it is accommodation paper, takes it discharged of all defenses that might have existed against the accommodated party.

Appellants were permitted to prove, over objection without ruling, that when they indorsed these notes it was with the understanding that they were to be used in paying certain other debts of the brewing company, and in payment for certain merchandise which had been shipped to it with a draft for the purchase price attached to the bill of lading, and that if the indorsers had known that said notes were to be used in a different way they would not have indorsed them. It is not claimed that the bank had any notice of said special purposes for which the paper was issued. Under the statute above quoted the accommodation indorsers could have placed a limitation upon their indorsement by writing appropriate words thereon, and so they could have done by the law merchant. As they did not write such restrictions into the instruments, nor bring them to the attention of the bank at or before the time when the paper passed to it, such special purpose does not constitute a defense, even if the bank took the paper when it was past due. Naef v. Potter, supra.

The $3,000 note was used at the bank under the following circumstances: In 1911, G-oecke, who was then the president of the brewing company, prepared his note for that sum, payable to the bank, and procured on the back thereof the guaranty of Henry Schmidt, and presented the same to the bank and obtained $3,000 in cash thereon. He deposited that money in that or another hank to the credit of the brewing company, and the money was used by the brewing company in its business. Although the brewing company’s name did not appear upon the note, yet as the transaction was purely for its benefit, it obtained renewals of the note from time to time. At the time of one of those renewals the brewing company offered to the bank the $3,000 note here sued on as additional security and the bank accepted it as such. This fact, that the bank took this at the time of a renewal, is testified to by the cashier of the bank, both when called as a witness for plaintiff and afterwards when called as a witness for defendant, though his testimony on that subject is imperfectly given in the abstract. The evidence makes it apparent that the bank required such notes as the Goecke and Schmidt note to be renewed at certain intervals, but that frequently the renewal was not, in fact, effected until some time after the required interval had expired, and was then dated back to the intended time of renewal. The exact time when that particular renewal of the Goecke and Schmidt note was made does not appear, but it was after the execution of the $3,000 note here sued on. Appellants contend that under these circumstances the bank took this $3,000 note without consideration. Appellants contend that it should have been shown that the bank demanded this additional security, and that as it was apparently voluntarily tendered, the bank received it without consideration. It was held in Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290, that the party taking such paper as security for a pre-existing det>t without any express .agreement is deemed a holder for value, free from latent defenses. We are of opinion that the bank was entitled to hold said $3,000 note here sued on as security for the G-oecke and Schmidt note. The Goecke and Schmidt note was afterwards renewed again and again but the debt still exists, and this note was collateral security for that debt, notwithstanding the renewal. Appellants contend that the bank should have first proceeded upon the Goecke and Schmidt note, or that the bank should have delivered the Goecke and Schmidt note to the defendants in this suit. We consider each of these positions untenable. The bank has a right to hold all its securities for that debt until the debt is paid. The fact, which was proven, that Schmidt is financially able to pay this debt cannot change the rule. Appellants are not entitled to any relief because of the earlier note until they have paid this judgment on their $3,000 note. It may be that when the present judgment is paid, those who pay it may have some right of contribution against Schmidt, but that cannot be decided in this case, to which Schmidt is not a party. Certainly appellants cannot enforce contribution until they have paid the debt.

The $2,500 note became the property of the bank under the following circumstances: The brewing company had become indebted to various persons in various amounts. The largest of these sums was due to s, contractor who had performed work for the brewing company. It gave to each of these persons its promissory note for the amount due. These various creditors sold and assigned these notes to the bank. At a certain time the amounts due upon these notes equaled about $2,500. The brewing company brought said $2,500 note to the bank and delivered it to the bank in payment of its said outstanding notes, five in number, held by the bank, and the bank received said $2,500 note in payment of said outstanding notes, which it had purchased. It thereupon canceled said five notes. There was a matter of about $20 difference between the total amount due from the brewing company on said five notes and the $2,500, and that was settled in cash. Appellants contend that those five notes should not have been canceled, but should have been retained by the bank for the benefit of the accommodation indorsers here sued. We think this position not sound, because the brewing company by means of said $2,500 note was paying its own debts, and not merely furnishing collateral security for them. As the notes were paid by this transaction, they were properly canceled and the accommodation indorsers could have no interest therein. We are therefore of opinion thát the accommodation indorsers were not released from their liability on the $2,500 note by reason of the cancellation of said five notes of the brewing company.

The judgment is therefore affirmed.

Affirmed.


author: Mr.. Justice Carnes

text:
    The Sterling National Bank, Defendant in Error, v. Elizabeth Martin and Frederick Cooley. Elizabeth Martin, Plaintiff in Error.
    Gen. No. 6,588.
    1. Equity, § 534

      —how decree of foreclosure and sale may he amended after term time. A court of equity may amend Its decree of foreclosure and sale of mortgaged property after term time in so far as the change affects only the method of enforcement and not the merits of the suit.
    2. Equity, § 534

      —when decree of foreclosure and sale properly substituted for decree made under Amendatory Act of 1911. Under the rule that a court may amend its decree after term time in so far as it relates to measures of enforcement, a decree of foreclosure and sale under the old mortgage law may be substituted for a decree erroneously made under the Amendatory Act of 1917, where there is no change in the judicatory part, but only in regard to the method of enforcement.
    3. Equity, § 535

      —when failure to give notice of substitution of decrees not ground for reversal. The Appellate Court will not reverse a decree substituted for an earlier decree because the record does not show notice to the appellant of the subsequent act of the court.

      Error to the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed February 8, 1919.
    C. C. and J. W. Johnson, for plaintiff in error.
    A. A. Wolfersperger, for defendant in error.

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

   Mr.. Justice Carnes

delivered the opinion of the court.

The defendant in error, Sterling National Bank, owned a real estate mortgage and notes secured thereby executed July 15, 1914, by Elizabeth Martin, the plaintiff in error, and at the October term, 1917, of the Circuit Court of Whiteside county, obtained a decree finding the amount due $5,657.90, and providing for sale and redemption of the premises under the Amendatory Act of 1917 (Session Laws 1917, 558). It is expressly provided in that act that it shall not apply to sales of real estate made pursuant to decrees foreclosing mortgages or trust deeds executed prior to July 1,1917; therefore its provisions should have been disregarded in this proceeding. After the final adjournment of said October term, and at the next January term, of said court, an order was entered setting aside the former decree, and another decree was filed providing for sale and redemption of the premises under the provisions of prior statutes applicable to this case. Both decrees in the judicatory part following the findings of the master in chancery, to whom the controversy had been submitted, in effect confirmed his report and, except the different provisions for enforcing the obligation of the plaintiff in error, they are substantially alike. The sum named in each decree was reached by adding to the amount found due by the master accrued interest to the date of the decree. Following the second decree the premises were sold by the master in chancery and the sale reported, leaving a deficiency due the complainant of $128.08. Under a provision in the mortgage authorizing the appointment of a receiver in case of a deficiency, the court appointed one to take possession of the property and collect the rents. Elizabeth Martin brings the record here for review. No error is suggested in any finding on any subject of dispute between the parties. In each decree all matters that might be controverted, like the existence and maturity of the mortgage securing the debt, the right to foreclose the same and the right of the complainant to have a decree for the sale of the mortgaged premises to pay the debt, interest and costs, were satisfactorily settled. Neither is there any question about the sale, the deficiency, and the appointment of a receiver, except it is insisted that the second decree was and is entirely void because it is said the decree at the October term was final, and the court had no power to enter another decree at a subsequent term. It is true the first decree was a final, appealable decree, and the court had no power to change its findings at a subsequent term, and any attempt to do so should be held entirely ineffective and be disregarded. (Kirby v. Runals, 140 Ill. 289; Gray v. Ames, 220 Ill. 251; DeGrasse v. H. W. Gossard Co., 236 Ill. 73.) It is out of the power of the court to amend or correct a decree in any matter affecting the merits after the adjournment of the term (23 Cyc. 861). But the limitation of the court’s control to the term at which the decree was rendered does not apply to provisions inserted for the purpose of carrying the decree into effect. Such provisions ínay be amended or inserted at any time. (16 Cyc. 506.)

In Union Trust Co. of Indianapolis v. Curtis, 182 Ind. 61, 105 N. E. 562, the court said: “While the essential judicatory part of a decree may not be changed by a court after the term when it was rendered, those parts which are directory as to the mode of its execution may be; and of such a nature is the amount of money required to be bid for the property.” Citing Farmers’ Loan Co. v. Oregon Pac. R. Co., 28 Ore. 44, 40 Pac. 1089; and Royal Trust Co. v. Washburn, B. & I. River R. Co., 113 Fed. 531, and quoting from the latter case: “A decree of foreclosure is, in a sense, a final decree, adjudging the rights of the parties as between themselves, but a decree of foreclosure is something more than that. It is not only a decree adjudging those rights, but it is also a sort of equitable execution, providing the manner in which the decree shall be enforced, and for the assertion of the rights declared; and the provisions of a foreclosure decree with respect to the manner and the terms of the sale are part of the terms of the execution of the decree, and not of the decree, so far as adjudging the rights of the parties. * * * It is always within the province of the court * * * to modify the terms of the decree so as justly and equitably to enforce its judgment, and render to the parties that to which they are entitled.”

It is said in the text of 5 Encyc. PI. & Pr. 1057: “Although the court has no power to amend, modify or alter the principles of a final decree after the expiration of the term at which it was rendered, it nevertheless retains the inherent right to modify, by a subsequent order, the time of its enforcement or manner in which it shall be enforced.”

Authorities are collected in a note in L. R. A. 1915 A 699, showing numerous holdings that a court may, after entering a final decree of foreclosure, modify that part of the decree relating to the manner and terms of sale. The right to make such alteration is recognized in Mariner v. Ingraham, 230 Ill. 130.

It follows that the order of the court setting aside its decree of the October term was of no effect as to the judicatory part, which remained in full force notwithstanding that order. The second decree neither added nor subtracted from the first in reciting its findings on the merits of the case. The first decree was manifestly wrong, and the second right in orders for sale and redemption. If those provisions were subject to amendment at a subsequent term, the second decree was in effect only a proper amendment of the first. The amendatory act differs from the former act, broadly speaking, in providing for redemption before instead of after the sale of the premises. The controlling question is whether those provisions in the first decree relate only to its enforcement. It was held in Delahay v. McConnel, 5 Ill. (4 Scam.) 156, that a statute requiring mortgaged premises to be sold for two-thirds of their appraised value and allowing a redemption of the sale relates only to the mode of carrying the decree into effect. We conclude the provisions for sale and redemption in the decree of the October term were subject to change or amendment at a subsequent term.

Notwithstanding the form in which the change was accomplished, it should be treated here in accordance with its effect. The action of the January term was valid in so far as it came within the power of the court, and invalid in so far as it went beyond the court’s authority to change the previous decree. The sale was, in effect, made under the first decree so properly amended by the second. This leaves no substantial error in the record.

It is said the record shows no notice to plaintiff in error of the action of the court at the January term. We do not regard that material. While notice to opposite counsel in such matters may be usual under the rules and practice of courts, we know of no law requiring it to be given or shown of record. The decree of the October term as modified at the January term is affirmed.

Decree affirmed.


author: Mr. Justice Carnes

text:
    Otho Baker, Appellee, v. Frank Stoner, Appellant.
    Gen. No. 6,599.
    1. Building and construction contracts, § 84

      —when builder may treat contract as rescinded and sue for value of services. Upon repudiation of a building contract by the owner without reasonable cause, the builder may treat the contract as rescinded and recover in assumpsit for the reasonable value of his services.
    2. Building and construction contracts, § 89

      —what need not be alleged in declaration on common counts by builder for value of services. A builder, having elected to treat a building contract as rescinded and to sue in the common counts for the value of his services, need not allege in the declaration his reason for not performing in full.
    3. Building and construction contracts, § 113

      —when measure of damages in assumpsit by builder not governed by contract. In assumpsit by a builder for the value of services performed up to the time when the defendant owner refused to permit him to proceed with the written contract, the measure of damages is not governed by the provisions of the contract.
    4. Appeal and error, § 1466

      —when admission of improper evidence harmless error. In assumpsit for the value of services in erecting a building, tried by the court without a jury, it is not prejudicial error to admit evidence of what was paid for material and services or what they were worth, without technically stating the market value, where there is other competent evidence of value and no objection raised.
    Appeal from the Circuit Court of Ogle county; the Hon. James S. Baijme, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed February 8, 1919.
    James L. McDowell and John E. Erwin, for appellant.
    5. W. Crowell and W. P. Fearer, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Otho Baker, the appellee, sued Frank Stoner, the appellant, in assumpsit on a claim for labor and material furnished in building a dwelling house. He filed the common counts, to which the general issue was pleaded. It developed on a jury trial that the work had been begun and prosecuted under a written contract between the parties; that appellant before the completion of the job had ordered appellee to quit work and leave the premises; that appellee had treated this action of appellant as a repudiation of.the contract and a refusal longer to be bound by it, and. had elected to treat it as rescinded and recover upon a quantum meruit so far as he had furnished work and material. The jury returned a verdict of $400 for the plaintiff, on which judgment was entered.

It is not questioned that appellant discharged appellee and forbade him to complete the work. There is some controversy whether there was reasonable cause for so doing. This question was submitted to the jury, and they were required by the instructions to find as a condition precedent to the plaintiff’s right of recovery that he was prevented from fully completing the house by the defendant without reasonable cause, and that said contract, was repudiated by the defendant. There was no time fixed in the written contract for the completion of the house, and the jury were instructed that it was the duty of the plaintiff to complete it within a reasonable time, and that if they believed such reasonable time had elapsed prior to the discharge of the plaintiff they should find for the defendant, unless they believe from the evidence that the defendant allowed the plaintiff a longer time in which to complete the same. The evidence sustained the plaintiff’s contention that there was no reasonable cause for discharging him; the verdict of the jury in effect includes that finding.

Appellant’s main contention here is that there could be no recovery under the common counts, and, if there could be, that the measure of damages should have been governed by the provisions of the contract. His theory, as we understand it, is that the work having been performed by appellee under a written contract, he could not recover without pleading as well as proving his excuse or reason for not fully performing it. And even after such averments and proof, still the provisions of the contract must prevail in computing the damages. The court instructed the jury, in substance, contrary to this theory, informing them if the contract was repudiated by the defendant the plaintiff was entitled to treat it as rescinded, and, having done so, to recover the reasonable value of labor and services performed by him, and material furnished, less whatever sum had been paid by the defendant. The controlling question here is whether the court erred in that view of the law. The 'Supreme Court as long ago as Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59, 80, treated it so well settled as to require no citation of authority “that where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed ; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover, under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing. ’ ’

And the court adds: “In the latter case the contract would be continued in force for that purpose. Where, however, the injured party elects to keep the contract in force for the purpose of recovering future profits, treating the contract as repudiated by the other party, in order to such recovery the plaintiff must allege and prove performance upon his part, or a legal excuse for nonperformance.”

This case is cited and the role recognized in Chalstran v. Board of Education, 244 Ill. 470, 475. This court cited Lake Shore & M. S. Ry. Co. v. Richards, supra, and other authorities sustaining that rule and applied it in determining that the measure of damages fixed by the contract did not govern in a case where the defendant wrongfully repudiated the contract, and the plaintiff elected the first-mentioned remedy holding that the contract, being abandoned, the recovery was based on a quantum meruit in Stoneking v. Long, 142 Ill. App. 203, and said: “Some cases have been cited as sustaining the rule claimed by appellant, but they will, on examination, be found to be suits in which a contract was relied upon, in which the plaintiff did not rescind the contract because of the wrongful act of the defendant, but elected to keep it in force, or on a building contract controlled by some provision of a statute, such as the lien law.”

It hardly seems to require citation of authority that the common counts is a sufficient declaration if the contract is treated as abandoned and the plaintiff is claiming no benefit from it. It is the form of pleading adopted without question in George H. Hess Co. v. Dawson, 149 Ill. 138, a similar case. But appellant relies on City of Peoria v. Fruin-Bambrick Const. Co., 169 Ill. 36, in support of his contention that where work is done under a contract the plaintiff can only recover when he has substantially performed the contract conditions precedent to his right of recovery, or averred and proved a sufficient excuse for his failure to do so. The court did use language to that effect,, and there are later opinions by our Appellate Courts citing that case and repeating the language there used; but so far as we have learned, expressions of that kind have been only in cases where the plaintiff was relying on some provision of the contract as a basis for a recovery, as he would be if he elected to pursue either of the last two of the three remedies open to him. In the present case he did not elect to “keep the contract alive” or to continue it in force for any purpose, and therefore he is not within the holding in Lake Shore & M. S. Ry. Co. v. Richards, supra, above quoted, requiring him to allege and prove performance or an excuse for nonperformance of the contract. It may be inferred that the court, in there specifying when the plaintiff must allege and prove performance or an excuse, meant that if he was not seeking to keep the contract alive, or claiming any benefits under it, there would be no obligation to mention it in his pleadings. We conclude that the court did not err in Ms rulings on the law.

It is suggested by appellant that incompetent evidence was introduced as to the value of labor and services recovered for, like statements of what was paid for material, or what it was worth, without technically stating what was the market value or the usual and customary price. There were statements of that character in evidence, but they were not objected to, and there was other testimony as to value that was competent. We do not find any substantial ground for that complaint. Finding no error in the record, the judgment is affirmed.

Affirmed.