author: Mr. Justice Holdom

text:
    Rose Scheuing et al., Plaintiffs in Error, v. Albert W. May, Trustee, Defendant in Error.
    Gen. No. 23,440.
    1. Trusts, § 289

      —Turn trust in personality may not be terminated. The distribution of a trust estate in personalty cannot be accelerated by the agreement of the parties in esse and the trust created by will thus destroyed.
    2. Remainders, § 9

      —when doctrine of acceleration inapplicable. The doctrine of acceleration of contingent remainders has no application to estates wholly personal.
    3. Remainders, § 11

      —how contingent remainder cannot be destroyed. Where a trust is created in realty, a contingent remainder cannot be destroyed by a conveyance by the life tenant.
    4. Trusts, § 289

      —when trust in personalty may not be terminated by agreement. Under a bequest in trust of the income of personalty until the death or marriage of the beneficiary, the object of the trust is not attained until the occurrence of the contingency provided for, and the interests being contingent the trust cannot be terminated by agreement of the parties.
    5. Infants, § 6

      —when minor not bound by agreement of adult beneficiary attempting to accelerate distribution. A minor who, if he survived the trust period, would be entitled to share in the distribution of the corpus of a trust estate cannot be bound by agreements on the part of the adult beneficiary attempting to accelerate the distribution.
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed January 27, 1919.
    Frances E. Spooner, for plaintiffs in error.
    Warren B. Wilson, for defendant in . error; Charles S. Cutting, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The bill in this case seeks to terminate the trust created by the third clause of the will of Christina Scheuing, deceased. The property at stake is wholly pyysLOjial, Testatrix, after devising one7sixth of her estate to her daughter, Bose Scheuing, created by the third clause of her will a trust as to the remaining five-sixths of her estate by the following words:

“I give, devise and bequeath unto Lessing Bosenthal * * * in trust, for the following uses and purposes : Said trustee shall acquire, have, hold, manage and control the estate in this section given and bequeathed to him, with full power to convert and reconvert the same, or any part thereof, and shall invest and reinvest the same, in his discretion, and after discharging out of the income derived from the trust estate, from time to time, all proper expenses, said trustee shall pay over the net income derived therefrom to my said daughter, Bose Scheuing, so long as she remains unmarried. Upon the marriage or death of the said Bose Scheuing the principal of said trust estate shall be transferred and paid over to all my then living children and the issue of any déceased child per stirpes.”

Bose Scheuing renounced and quitclaimed all her interest in the trust estate to those persons in being who, if distribution could be accelerated in such fashion, would be distributees, and consented to an immediate distribution of the trust estate. All the parties in interest now in life joined in the bill against the defendant trustee in an attempt to force the trustee to make an immediate distribution of the trust estate in accord with the renunciation and agreement of the complainants.

None of the averments of-fact in the bill is in dispute; but the trustee insists by his answer that there was created by the will an active trust, that those who may ultimately take the estate at the termination of the trust are uncertain and not now ascertainable and that consequently there can be no decree for distribution at this time. The chancellor held that the trustee had no right to distribute the trust estate in accord with the agreement of the parties dehors the will and dismissed the bill for want of equity, in an attempt to reverse which decree complainants bring this writ of error.

The question presented for our decision is: Can the distribution of the testatrix’s estate (all personal) be accelerated by the agreement of the parties in esse and the trust created by the will destroyed?

We are of the opinion that the plain intent of the testatrix cannot be foiled by agreement. There is no statute so permitting. Whatever a widow may do by renouncing the provision of her husband’s will to defeat it is in no way analogous to the facts of the instant case as contended, because the right to so renounce is conferred expressly by the statute.

The distribution of the residuary estate under the third paragraph of the will is between the persons who shall be the children or the descendants of any deceased child at the death or marriage of testatrix’s daughter Rose. While Rose has control of the income during her life, or until her marriage, and may dispose of the same as she sees fit, she cannot accelerate distribution of the corpus by an agreement to destroy the trust created by the will.

The doctrine of the acceleration of contingent remainders has no application to estates wholly personal. The application of the doctrine is confined to real estate. Where a trust is created even in real estate, a contingent remainder cannot be destroyed by a conveyance by the life tenant; for as said in Lewin v. Bell, 285 Ill. 227: “The common law, which permitted the destruction of contingent remainders, being unchanged by statute in this State, the only method by which a testator devising such remainders can preserve them and prevent his intention being frustrated and his will defeated is a resort to a trust.” While the question before us was not involved in the Bell case, supra, the principle of law there stated as above quoted, being sound, is to be given due weight in any case where applicable.

It is beyond cavil that the object of the trust created by the will has not been attained. Its object was to keep the corpus of the estate intact until the death or marriage of Rose Scheuing, and until the happening of one of these events to pay the income to her and to thereafter distribute the personal estate held by the trustee among such persons as in the will designated. The instant case does not, therefore, come within the reasoning of Anderson v. Williams, 262 Ill. 308, which holds that where the designs and objects of the trust have been practically accomplished and all interests have become vested, a trust may be terminated. Then, again, in this case the interests are not vested; they are contingent and so continue until the time of distribution appointed by the will. Consequently Northern Trust Co. v. Wheaton, 249 Ill. 606, is not in point, as there the interest was vested, while here it is contingent.

While the title remains in the trustee under the conditions of the trust, it cannot be destroyed by any agreement of the life tenants and the remaindermen. Furthermore, there is one party at least in life—a great grandchild of the testatrix—a minor when the bill was filed, who if he survives the trust period will be entitled to participate in the final distribution. Minors cannot be bound by the agreement of adults.

In some respects this case is similar to Blatchford v. Newberry, 99 Ill. 11, where, on renunciation by the widow, it was sought by the living descendants to accelerate the time of distribution of one-half of the estate ; but the court held that the time for distribution was the one appointed by the will, and that those entitled to participate must be ascertained as of the time stipulated in the will for distribution. In the meantime the trustee was vested with and held title. We think the concluding paragraph of the opinion pertinent in its application to the cause now being reviewed: “We can come to but the one conclusion, that the period of distribution appointed by the will has not yet arrived, and will not until the death of Mrs. Newberry. To determine otherwise would seem to us to be, in this particular, making a will for the testator, instead of expounding the one which he himself made.”

Trustee May cannot distribute the estate held by tnm under the will until Rose Schening either dies or marries. The will of the testatrix must prevail. It cannot be made over by agreement of the heirs.

The decree of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    H. A. Hall, for use of William E. Norris, Plaintiff in Error, v. John R. Robertson, Defendant in Error.
    Gen. No. 23,962.
    1. Corporations, § 28

      —when stockholders Hable as partners to creditors. Stockholders of a corporation which, by reason of failure to file its charter in the recorder’s office is not a corporation de jure, are liable as partners to creditors of the corporation.
    2. Corporations, § 28

      —when creditor of de facto corporation not estopped to enforce contract against stockholders as partners. While persons violating the law in making a contract might be es-topped to deny corporate existence, if sued as a corporation on the contract, a creditor of a de facto corporation seeking to enforce such a contract against the stockholders as partners would not he estopped from doing so by reason of having dealt with the defendants as a corporation.
    3. Corporations, § 28

      —when filing of claim in bankruptcy against de facto corporation not bar to action against stockholders. The filing of a claim in bankruptcy against a de facto corporation is not a bar to an action against the stockholders as partners, where there is no evidence of any hearing or trial of the claim upon the merits or otherwise, and no competent evidence of the final disposition, if any there was, of such claim.

      4. Bankruptcy—what is not record of judgment on claim. A minute showing the disallowance of a claim by a referee in bankruptcy is not a record of a judgment and is inadmissible in evidence to show the final disposition of the claim.
    Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed January 27, 1919.
    Clinton A. Stafford, A. W. Martin and Edward H. S. Martin, for plaintiff in error.
    Ashcraft & Ashcraft, for defendant in error; E. M. Ashcraft, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Counsel for defendant has made so fair, succinct and logical a statement in his brief of the facts of the case and the legal questions involved that we adopt it. It is as follows:

“The facts are, in January, 1911, certain real estate men attempted to organize a corporation called ‘Chicago Beal Estate Show Company.’ Its purpose was to advertise Chicago real estate. They did everything according to law, except to record the charter in the recorder’s office. The subscriptions were made and paid, the charter was obtained, records were kept, stock was issued and transferred, and a corporate seal was used. All its transactions were conducted in its corporate name, and it was not discovered for years after the company failed and was wound up in bankruptcy that the charter was not recorded. Hall was one of its creditors. He, with many others, sued Bobertson for his claim, alleging liability under section 18 of the statute [J. & A. 2435]. To this Bobertson replied the Statute of Limitation ©f two years. After this defense was sustained by the decision of this court in M. H. Vestal Co. v. Robertson, 199 Ill. App. 518, affirmed in the Supreme Court, 277 Ill. 425, the claim was amended, claiming a liability against the ‘corporators’ as partners, and the question here is whether or not the ‘corporators’ or shareholders of a de facto corporation, organized in perfect good faith, are liable to creditors of a de facto corporation, who dealt with it as a corporation, where no fraud is shown or claimed.

“The contract shows on its face that it was made with the corporation as such, and the answer admits filing a claim in the bankruptcy proceeding against the corporation. ’ ’

The foregoing statement needs no amplification to make it patent that two questions are presented for our consideration and determination, viz.:

First: Under the conditions so made to appear, is a stockholder liable in this action?

Second: Is the action on the claim of plaintiff against the corporation before the referee in bankruptcy a bar to recovery?

First: There has been much conflict of authority regarding the liability of stockholders and officers of a de facto corporation as distinguished from one de jure, and were it not for the later expression of our Supreme Court on this subject postdating the decisions in conflict, we would find cause to hesitate in reaching a correct solution of the problem.

In M. H. Vestal Co. v. Robertson, 277 Ill. 425, the defendant here being the defendant there, the court, holding that section 18, under which the claim was brought, was penal and the right of action barred by the Two-Year Statute of Limitations, decided that the creditors had a right of action against the stockholders as partners, and said:

“If they [the creditors] fail to bring their action within the time, they still have their remedy in an appropriate action against the stockholders as partners, in which case the Five-Year Statute of Limitations applies.”

It is urged that this statement is obiter dicta, but we do not so interpret it. The whole matter was before thé court and the question of liability was one for its decision. The Supreme Court indicated very clearly that it did not consider that part of the opinion as obiter dicta, because on a petition for a rehearing it refused the request of defendant to strike those observations from the opinion. Robertson’s liability was before the court in the Vestal Co. case, supra, as it is here, and under these circumstances we are unable to escape the conclusion that this part of the decision cannot be held to be obiter dicta as against defendant. In the Vestal Co. case, supra, the court said:

“Said section 4 [J. & A. ¶ 2421], which provides that the certificate of complete organization shall be filed for record in the county where the principal office of the corporation is located before the corpora-tors shall commence business, is equivalent to an express prohibition against the authority to do so unless that certificate shall be first filed for record.”

In Joseph T. Ryerson & Son v. Shaw, 277 Ill. 524, the court said:

“In Loverin v. McLaughlin, 161 Ill. 417, where the liability created by section 18 of the Corporation Act was enforced, it was held that, independently of that section, a company which is not a corporate body is a partnership.”

While parties violating the law in making a contract might be estopped to deny corporate existence, if sued as a corporation on the contract, still the plaintiff seeking to enforce such contract against the stockholders as partners would not be estopped from doing so by reason of having dealt with the defendants as a corporation. Joseph T. Ryerson & Son v. Shaw, supra.

For the failure to file the certificate of complete organization of the Chicago Real Estate Show Company in the recorder’s office as required by section 4 of the statute (J. & A. ¶ 2421) supra, defendant as a stockholder is liable. In O. S. Richardson Fueling Co. v. Seymour, 235 Ill. 319, it was held that proof of a corporation de facto does not relieve officers and directors from the liability imposed by section 18 of the Corporation Act (J. & A. ¶ 2435), and that to escape such liability a corporation de jure must be shown; and that where coal ordered by. the manager of a supposed corporation, which had failed to file its final certificate of incorporation for record, is delivered to a steamer operated by such a corporation, the parties who were the original subscribers to the stock and who were stockholders, officers and directors after the transaction took place, are liable for the cost of the coal as partners, independently of any liability under section 18 of the Corporation Act. Bigelow v. Gregory, 73 Ill. 197.

In Loverin v. McLaughlin, supra, it is held that “the members or stockholders of a corporation illegally formed are liable as partners for its acts or contracts; and directors, officers and agents, acting and contracting in its name, render themselves personally liable independently of the statute.” For an instructive discussion of this question see note to Rutherford v. Hill, 17 L. R. A. 549.

Second: While it is in evidence that plaintiff filed a claim against the Chicago Beal Estate Show Company in bankruptcy, there is no evidence of any hearing or trial of the claim upon the merits or otherwise, and there is no competent evidence of the final disposition, if any there was, of that claim. There is no record of any judgment. All that appears is a minute showing a disallowance by the referee in bankruptcy. Such a minute does not constitute the record of a judgment. The referee’s minute was inadmissible as evidence. McCormick v. Wheeler, Mellick & Co., 36 Ill. 114; Steele v. Steele, 89 Ill. 51.

For the reasons above indicated the judgment of the Municipal Court is reversed and the cause is remanded for a new trial consistent with the views above expressed.

Reversed and remanded.


author: Mb. Justice Holdom

text:
    Albert Hoefeld et al., Defendants in Error, v. James Ozello, Plaintiff in Error.
    Gen. No. 24,184.
    1. Landlord and tenant, § 43

      —when entire saloon lease not invalid as contemplating violation of Sunday law. A provision in a saloon lease giving the lessee the option of terminating the lease on notice “in the event that the State Sunday Closing Law is generally enforced in Chicago” does not render the entire lease invalid as inferentially contemplating the violation of the law against the opening of saloons on Sunday.
    2. Contracts, § 371

      —when inference of illegality cannot be indulged. An inference of illegality cannot be indulged in construing a contract unless such illegality is fairly inferable from the words used in such contract.
    3. Contracts, § 160

      —when party estopped to claim illegality of contract. A party at whose Instance a clause was inserted in a contract which would render it invalid as contemplating a violation of law is partieepe criminis, and is estopped to invoke his own wrong to escape liability thereon.
    4. Landlord and tenant, § 51

      —what evidence inadmissible to vary or alter lease. Evidence of conversations between the lessees and their agent and the lessor at and prior to the execution of the lease is inadmissible to vary, alter, change or amend its provisions.
    5. Contracts, § 157

      —when contract made in violation of law is unenforceable. A contract made in violation of law is void and unenforceable regardless of whether the statute so declares or merely prohibits the thing contracted to be done.
    Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed January 27, 1919.
    Rehearing denied February 10, 1919.
    Thomas W. Brindeville and Thomas J. 0 ’Hare, for plaintiff in error.
    Adler, Lederer & Beck, for defendants in error.

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

   Mb. Justice Holdom

delivered the opinion of the court.

The judgment before us for review is for rent under a written lease for premises to be used as a restaurant and saloon. A judgment entered by confession was opened and defendant let in to defend. On a trial before the court there was found to be due from defendant for rent $1,430, and the judgment by confession was confirmed and ordered to stand in full force and effect as the judgment of the court at the date when first entered. A motion to vacate being denied, defendant prayed an appeal to this court, which he ' did not perfect but sued out of this court this writ of error.

The lease in the record contains the following clause:

“The lessee shall have the right to terminate this lease by giving to the lessors within thirty days after the closing of said saloon by State or city authorities a sixty days ’ written notice in the event that the State Sunday Closing Law is generally enforced in Chicago, or in the event that the City of Chicago shall discontinue the issuance of all saloon licenses.”

It is vigorously contended that this clause renders the whole lease invalid because it inferentially contemplates the violation of the statute law against the opening of saloons on the first day of the week, commonly called Sunday.

We do not so interpret this clause of the lease. It is not a provision for a violation of law, but states a condition which, if occurring, gave the tenant the option to terminate the demise. It simply recognized a notorious fact—that the statute law providing for the closing of saloons on Sunday was uniformly violated in Chicago without any interference by the municipal authorities. It is also a matter of public notoriety that the municipal authorities about the year 1916 commenced to enforce the Sunday saloon closing statute.

There is nothing in the lease which authorized defendant to keep his saloon open on Sunday in violation of the law or which gave to the landlord any control or even supervision of the business which defendant conducted upon the demised premises. Defendant, if he wished, could have availed of the option to end the term by giving the notice provided for in the clause above recited. He failed to avail of this way out of his dilemma.

We cannot infer from the condition of the lease above cited that plaintiffs, in effect, licensed the defendant to violate the State Sunday Closing Law. No decision cited by defendant’s counsel goes to the length of holding that a covenant of this nature is susceptible to an inference of a license to violate the law. It cannot be said that plaintiffs were at all responsible for the manner in which defendant conducted his business on the demised premises, as they had no control over the same or any interest therein so far as disclosed by any covenant of the lease in evidence, which is the contract of the parties. An inference of illegality cannot be indulged in construing a contract unless such illegality is fairly inferable from the words used in such contract. In other words, it is not the policy of the law to read into a contract a covenant of illegality. Furthermore, if his contentions were well taken, defendant is under well-settled principles of law, by the insertion at his instance of the offending clause in the lease, if such clause is violative of the law, particeps criminis, and will not be allowed to invoke his own wrong to escape his contract liability.

Evidence proffered of conversations between plaintiffs and their agent and defendant at and prior to the execution of the lease was inadmissible. The written contract could not be varied, altered, changed or amended by such conversations. The instrument itself constitutes the contract of the parties. Gaston v. Gordon, 208 Mass. 265.

It is undoubtedly true that a contract made in violation of a state statute is void and unenforceable regardless of whether the statute so declared or merely prohibits the thing contracted to be done (People v. Board of Supervisors, 122 Ill. App. 40); but there is no provision in the lease above cited which contracts for the violation of any law, statutory or otherwise.

We see no reason to disturb the judgment of the Municipal Court and it is therefore affirmed.

Affirmed.


author: Mr.. Justice McSurely

text:
    Maria Leith, Defendant in Error, v. Alexander B. Leith, Plaintiff in Error.
    Gen. No. 24,326.
    1. Husband and wife, § 264

      —when decree for separate maintenance not sustained by evidence. In a proceeding for separate maintenance where the only evidence in the record as to the justifiability of the separation was an affirmative answer to the question, “Have you been living separate and apart from your husband for the last two years without any fault on your part?”, a decree for separate maintenance was not sustained by the evidence, since the testimony constituted a mere conclusion.
    2. Appeal and ebrob, § 1269

      —when presumed findings of chancellor sustained by evidence. Where the certificate of the chancellor does not show that the certificate of evidence contains all the evidence heard by him, it will be presumed that there was sufficient evidence to sustain the findings of the chancellor.
    3. Husband and wife, § 265

      —what is interlocutory decree for separate maintenance. A decree in a separate maintenance proceeding which merely finds the complainant entitled to separate maintenance, postponing for future consideration and determination the amount -which defendant should contribute to her support, is interlocutory merely.
    4. Husband and wife—when objections that interlocutory order for separate maintenance is not based on evidence should be con

      sidered. Where an interlocutory order finding complainant entitled to separate maintenance is entered postponing for future consideration the amount to be paid by defendant, on a subsequent petition to fix the amount to be contributed by defendant it is erroneous to confine the evidence solely to the amount to be paid for separate maintenance and to decline to consider objections that the prior order was not sustained by the evidence.
    5. Husband and wife, § 258a

      -—when refusal to entertain cross-Mil for divorce erroneous. Refusal to entertain a cross-bill for divorce on a petition to fix the amount of separate maintenance, following the entry of an interlocutory decree finding complainant entitled to separate maintenance, is erroneous.
    Error to the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed January 27, 1919.
    Schuyler & Weinfeld, for plaintiff in error.
    Bice, Lowes, O’Neil & Bichares, for defendant in error.

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

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

   Mr.. Justice McSurely

delivered the opinion of the court.

By this writ of error the defendant brings in review the proceedings in the Superior Court in an action brought by complainant for separate maintenance.

The bill was filed in October, 1903, to which defendant made answer. No hearing was had until October, 1915, and the chancellor after hearing made an order on November 5, 1915, as follows:

“That the said complainant be and she is hereby decreed to live separate and apart from the said defendant, and that he shall contribute to her support from time to time such sum or sums as the court may hereafter designate, and this cause is hereby now continued to enable the court to take testimony to determine the amount that the said defendant shall contribute toward the support and maintenance of the complainant. ’ ’

Defendant urges that this is not supported by the evidence, and on inspection of the record we find this is so. The only evidence in the record before us tending to support the finding of the chancellor was the following question put to complainant, and her answer:

“Q. Have you been living separate and apart from your husband for the last two years without any fault on your part? A. Yes.”

This is a mere conclusion of the witness and is not sufficient. As was said in Umlauf v. Umlauf, 117 Ill. 580:

“If the wife, therefore, in bringing a suit of this kind, is not prepared to show that she is without fault, she will fail to bring herself within the statute, and must necessarily be defeated in her action. * * * She had to go one step further, and show that such living apart from her husband was without fault on her part.”

See also, Kingman v. Kingman, 150 Ill. App. 456; Giese v. Giese, 107 Ill. App. 659.

Complainant replies that the certificate of the chancellor does not show that the certificate of evidence before us contains all of the evidence heard by him. As this is the fact we must presume that there was sufficient evidence to sustain the findings of the chancellor. Allen v. Henn, 197 Ill. 486, and cases there cited.

Another point made by defendant is that the order of November 5th above quoted is not a final decree. We are of the opinion the point is well taken. In Hunter v. Hunter, 100 Ill. 519, the court said of an order substantially like the one before us that it was not a final decree, and that “until the sum defendant should pay for the separate maintenance of complainant was determined, and a decree pronounced definitely settling the rights of the parties, it could not be said any final decree had been rendered in the cause The order made by the court touching separate maintenance for complainant was interlocutory.” In Quinn v. McMahan, 40 Ill. App. 593, the court held that “an interlocutory order does not settle the rights of the parties and is not regarded as a verity, for the reason that it may at any time be changed or altered before the final decree is entered.”

The record shows that about two years after the above order was entered the complainant filed her petition in the Superior Court reciting the entry of said order and asking the court to proceed to fix the amount to be allowed to her for separate maintenance. To this petition defendant filed an answer denying that she was entitled to separate maintenance, denying that she was living separate and apart from him without her fault, and alleging that the cause of separation was misconduct on her part. Defendant also asked leave to file a cross-bill praying for a divorce, but the chancellor, who was not the same as the one who had entered the order of November 5th, held that order to be a final decree adjudicating the rights of the parties, and refused to permit the cross-bill to be filed, and proceeded over objection of the defendant to hear evidence, limiting it to the question of the amount to be paid for separate maintenance. Objections were made to this on the ground that complainant had not shown that she was entitled to separate maintenance and that the evidence theretofore taken did not support any finding to that effect, and that the order previously entered was merely interlocutory and not a final adjudication of the question, but the objections were overruled, and the court after hearing testimony oh the subject of the amount of separate maintenance, entered a decree requiring defendant to pay complainant $7 per week for her support.

If, as we have above held, the order of November 5th was merely interlocutory and subject to alteration and change upon further evidence heard at any subsequent proceeding, it was error for the last chancellor to proceed upon the assumption that it was a final adjudication of the rights of the parties, and to limit testimony solely to the question of the amount complainant should have for her separate maintenance.

It also appears that the reason the chancellor denied defendant’s motion to file a cross-bill was that the order of November 5th was a final decree. As we have held to the contrary, no sound reason would appear for denying defendant’s motion in this respect.

For the reasons above indicated the decree, of the Superior Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.


author: Mr. Justice McSurely

text:
    Lester L. Bauer, Defendant in Error, v. Carl Murray White and Leona H. White (Defendants). Carl Murray White, Plaintiff in Error.
    Gen. No. 24,393.
    1. Judgment, § 110

      —what prerequisite to entering default. It is iuiproper to enter a default against a defendant without first striking his pleas from the files.
    2. Pleading, § 359

      —how sufficiency of pleas tested. The sufficiency of pleas should be tested in the trial court by motion to strike.
    3. Pleading, § 159

      —what considered as equivalent to affidavit of merits hy joint defendants. In an action on the common counts against two defendants supported by an affidavit of claim alleging joint liability for services rendered at their request, a verified plea by one defendant denying joint liability and by the other also denying joint liability and averring a promise by her alone, both defendants joining in a verified plea alleging an agreement with one of the defendants alone to pay the reasonable value of the services, that a reasonable amount had been offered and refused and that such defendant was ready and willing to pay the same and brought same into court for that purpose, may be considered equivalent to an affidavit of merits.
    4. Pleading, § 232

      —discretion of court as to allowing amendments or additional pleas. Where the pleas filed are insufficient, they may be amended or additional pleas filed, within the discretion of the court, upon motion, before default is entered.
    Error to' the County Court of Cook county; the Hon. Hakry C. Stuttle, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed January 27, 1919.
    Charles B. Napier, for plaintiff in error.
    Lester L. Bauer, pro se; Bobert C. Baohraoh, of counsel.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

By this writ of error the defendant, Carl Murray White, seeks the reversal of a judgment against him and his codefendant, Leona H. White, for $250.

Plaintiff filed a declaration on the common counts, and by his affidavit of claim asserted a joint liability of the defendants for services rendered them at.their request. Both defendants appeared, and Carl Murray White filed a plea, verified by affidavit, denying joint liability. Leona H. White also filed a plea denying joint liability, and alleging that the supposed promises in the declaration mentioned were made by her alone; this was also supported by an affidavit. Both defendants joined in and filed a plea setting forth their defense, alleging that Leona H. White had agreed to pay the plaintiff, an attorney, for services what they were reasonably worth, and that a reasonable amount had been offered in payment which had been refused, although Leona H. White was still ready to pay the same and brought the same into court for that purpose; this plea was also supported by affidavit. Both defendants also filed a plea of nonassumpsit, which was sworn to. The next proceeding of record was an order finding that defendants were in default, and the cause proceeded to trial and plaintiff’s damages were .assessed and judgment entered upon the finding.

It has been held many times under similar circumstances that it is improper to enter the default of a defendant without first striking his pleas from the files. Barth v. Farmers & Traders Bank, 195 Ill. App. 318; Kearney v. County of Cook, 187 Ill. App. 435.

The sufficiency of the pleas should be tested in the trial court upon motion to strike.

We might suggest that pleas similar to these have been held to be equivalent to an affidavit of merits. Fergus v. Cleveland Paper Co., 3 Ill. App. 629; Kimbark v. Blundin, 6 Ill. App. 539. The reasoning of Mr. Justice McAllister in this latter case is very persuasive.

In any event, as was held in Chicago Stamping Co. v. Mechanical Rubber Co., 83 Ill. App. 230, the pleas filed may be amended or additional pleas filed, within the discretion of the court, upon motion made before default is entered.

For the reasons indicated the judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.


text:
    Anthony O’Pizzi, Appellant, v. Valley Fruit Company, Appellee.
    Gen. No. 24,437.
    1. Attachment, § 295

      —when in aid quashed. An attachment in aid is properly quashed where the statement of claim does not assert damages in excess of $20.
    2. Sales, § 376

      —whai is measure for breach of contract to deliver goods. The measure of damages for breach of a contract calling for delivery of goods f. o. b. at a certain place is the difference between the contract price of such goods and the market value at such place.
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed January 27, 1919.
    Charles A. Butler, for appellant.
    Mancha Bruggemeyer, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed a statement and affidavit of claim and also an affidavit for attachment in aid. Defendant filed its appearance for the purpose of moving to quash the writ of attachment, which motion was allowed, the writ ordered quashed, the attachment dissolved and garnishees discharged. Prom this order plaintiff has appealed.

We are of the opinion' that the order of the trial court was proper for the reason that the statement of claim does not assert any damages in excess of $20; the indebtedness must exceed this amount to entitle a creditor to maintain attachment. Chapter 11, “Attachments,” Hurd’s Rev. St. sec. 1 (J. & A. ¶ 492).

The statement asserts the failure of defendant to perform a contract calling for the delivery to plaintiff of a number of boxes of apples, f. o. b. cars at Walla Walla, Washington, at certain specified prices; that defendant did not deliver the apples at that point but delivered them to plaintiff at Chicago, Illinois. The only allegation of damages is a statement in dollars and cents of the value of the apples at the time they should have arrived at Chicago and a statement of their value at the time they did arrive in Chicago, and the difference between the two amounts is asserted to be the damages suffered. The proper measure of damages would be the difference between the contract price and the market price at Walla Walla, Washington; the values in Chicago are immaterial, and so much of the statement of claim is surplusage. For aught that appears in the statement, the market value of the apples when delivered on board cars at Walla Walla, Washington, may have been more than or equal to the contract price, so that at most plaintiff would be entitled only to nominal damages, if any. Lepman & Heggie v. Inter-State Produce Co., 205 Ill. App. 270; Sleuter v. Wallbaum, 45 Ill. 43.

The statement of claim failing to assert damages in excess of $20, the order of the trial court in quashing the writ was right and the judgment is affirmed.

Affirmed.


author: Mr. Justice MoSurely

text:
    George F. Ramer, Appellee, v. Reserve Loan Life Insurance Company, Appellant.
    Gen. No. 24,503.
    1. Insurance—when unlawful to contract in advance for interest upon interest. Prior to the Act of January 1, 1908, it was unlawful to contract in advance on policy loans for the payment of interest upon interest.
    2. Insurance, § 26

      —what is value at which reserve must he maintained. The portion of its assets which a life insurance company is required to set aside to meet liabilities is called the legal reserve, and it must he maintained at a value related to the net value of the policies in force.
    3. Insurance—when policyholder not required to pay compound interest on loan. The fact that an insurance company must accumulate the fund to pay the cash surrender value of a policy by compounding interest imposes no obligation upon a policyholder, under a policy authorizing surrender at maturity, to pay compound interest on a loan for the reserve loan value of the policy.
    4. Insurance—how amount of reserve under life policy cannot he altered. The amount of reserve under a life insurance policy and its basis of value have no relation to the distinct and separate undertaking of a borrower under the policy, the extent of whose obligation is to be determined solely by the language of his note or loan agreement, and it cannot be altered by any mathematical or legal necessity of the insurer.
    5. Insurance—when loan agreement is for simple interest. A loan agreement on an insurance policy made prior to the Act of January 1, 1908, providing that “interest is payable annually in advance, but the undersigned may elect to have the interest added annually to the principal of the loan,” must be construed as agreement to pay simple interest, since mere nonaction could not be considered an agreement to pay interest upon interest then due, and the inhibition against contracts in advance for the payment of interest upon interest could not he thus evaded.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Z. Uhlib, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed January 27, 1919.
    George J. Kuebler, for appellant; -Guilford A. Deitch, of counsel.

      Henry W. Price and Hugh T. Martin, for appellee.

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

   Mr. Justice MoSurely

delivered the opinion of the court.

By this appeal we are asked to determine whether interest on a “Loan Agreement” given by plaintiff to defendant should be simple or compound. The trial court held for simple interest, and defendant says this was error.

On September 22,1904, the defendant, a corporation of Indianapolis, Indiana, issued its policy upon the life of plaintiff, a resident of Chicago. The policy provided for the payment of a certain sum upon his death, and also that if all premiums were paid and the insured living on September 22, 1917, he would be entitled to certain-options, which included the right to surrender the policy and withdraw the entire cash value. Plaintiff survived this period and paid all the required premiums. It is conceded by both parties that the amount to which plaintiff was then entitled on the policy was $1,018.10.

On the same day the policy was issued, that is, September 22, 1904, plaintiff executed a loan agreement, which is the subject of this controversy. In this was recited a loan from the defendant to the plaintiff of a certain sum; that the policy issued to plaintiff was pledged as collateral to secure the loan, which plaintiff promised to pay with interest at 5 per cent per annum. It was also provided that “interest is payable annually in advance, but the undersigned may elect to have the interest added annually to the principal of the loan.” When plaintiff demanded the cash surrender value of his policy at its maturity, the company claimed the right to deduct the amount due under the loan agreement, which right is conceded by plaintiff. Plaintiff did not pay the annual instalments of interest upon the loan as they fell due, and the company now claims the right under the clause last above quoted to compound the interest and deduct the amount of the loan, with interest thus compounded, from the company’s indebtedness to plaintiff upon its policy. Plaintiff claims that the defendant is entitled to charge him only simple interest upon his loan. The difference between the two methods of computation is about $70.

Since the statute of January 1, 1908, it has been lawful as to policy loans thereafter made to compound interest (see Hurd’s Rev. St. 1917, p. 1738, par. 208w, J. & A. ¶ 6515), but the instant loan was made in 1904, and it then was unlawful to contract in advance for the payment of interest upon interest. Drury v. Wolfe, 134 Ill. 294; Bowman v. Neely, 137 Ill. 443. The only exception was in respect of interest-bearing coupons. Defendant asks for a further exception in respect to policy loans.

A life insurance company is required by statute to set aside a portion of its assets to meet liabilities upon its policies. This is called the legal reserve, and it must be maintained at a value related to the net value of the policies in force; this is done by investments and reinvestments of interest income. The cash surrender value of the policy upon maturity to which the insured herein was entitled was equivalent to the reserve then accumulated by compounding interest to meet the obligation of that policy. The amount of the loan made to the insured was “the reserve loan value of its policy” at the date of the loan. Prom these facts the deduction is sought that there is a kind of mutual obligation on the part of both borrower and the company with respect to interest; that as the company accumulates its reserve by compounding interest," the borrower should also be so obligated, and that it is unfair to relieve the borrower from compound interest upon a loan from the fund which the company must accumulate by compound interest to meet its obligation under the policy. Ho authorities are cited involving this question, and we are of the opinion the contention of the defendant cannot be supported upon any reasonable grounds.

The obligation to maintain the reserve at a certain value concerns the solvency of the company; it relates to a standard fixed by the State and is a condition necessary to the continuation of the company’s business (chapter 73, “Insurance,” Hurd’s Rev. St. 1915-16, par. 190, sec. 10, J. & A. ¶ 6469). The amount of reserve and its basis of value have no relation to the distinct and separate undertaking of the borrower, the extent of whose obligation is to be determined solely by. the language of his note or loan agreement; this cannot be altered or changed by any mathematical or legal necessity of the lending company, whether such necessity is imposed in order that the company may meet its obligations under its policies or to avoid statutory penalties. A further step in defendant’s logic would seem to require the borrower to supply any shortage in the reserve value which defendant would be obligated to pay under the policy. Manifestly this is untenable. We see no legal connection between the undertaking of the borrower and the financial methods incumbent upon the insurance company in order to meet its obligations to policyholders or in compliance with statutory requirements.

It is said that the failure of plaintiff to pay the annual instalments of interest when due operated as an election to have the interest compounded pursuant to the provision in the loan agreement that he “may elect to have the interest added annually to the principal of the loan.” Under the cases cited, supra, Drury v. Wolfe, 134 Ill. 294, and Bowman v. Neely, 137 Ill. 443, this agreement must, be considered as an agreement to pay simple interest, for it cannot be a legal agreement to compound interest. These cases also hold that after interest is due it may “by agreement then made, be added to the principal, and made to thereafter bear interest” (Drury case). No such agreement was made, and it would seem clear that mere failure to act could not be considered as an agreement altering and changing the written instrument which provided for simple interest.

There is force in the suggestion that the provision concerning interest was drawn in this manner in an attempt to avoid the legal inhibition of contracting in advance for compound interest, but that in essence and operation it is such an illegal agreement.

For. the reasons above indicated we hold that the judgment of the trial court was right, and it is affirmed.

Affirmed.


text:
    Laura E. Dupee Blakeslee, Appellant, v. Romain Blakeslee, Appellee.
    Gen. No. 24,536.
    1. Divorce, § 68

      —when MU attaching decree in foreign State is defective. A bill attacking a decree of divorce rendered in another State, on the ground of false representations, perjury and deception, is defective where it does not contain a copy of the bill of complaint in the foreign court, the answer thereto, the findings of the court and its decree.
    2. Courts, § 60

      —when foreign court presumed to have jurisdiction to render decree. A court, of general jurisdiction of a foreign State is presumed to have jurisdiction to render the decree it pronounces, and its decree should not be held void on the ground that it was deceived and misled, unless the evidence is of such- a satisfactory character as to exclude any other reasonable conclusion.
    3. ' Judgment, § 454

      —when question of jurisdiction res adjudicata. Where the question of jurisdiction is raised in proceedings in the courts of another State and there adjudicated, such decision becomes res adjudicata of the question.
    4. Divorce, § 68

      —when foreign decree conclusive on questions of residence and jurisdiction. Where the questions of residence of the complainant in a divorce proceeding in another State and the jurisdiction of the court over grounds of divorce based on acts committed outside the State were presented to such court and determined by it, its decision is res adjudicate, in a proceeding for separate maintenance in this State attacking the validity of the foreign decree.
    Appeal from the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed January 27, 1919.
    Stedman & Soelke, for appellant; Swan M. Johnson, of counsel.
    Rice, Lowes & O’Neil, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Complainant, filing her bill and amendments asking for separate maintenance and other relief, was met by a demurrer which the trial court sustained and ordered the bill as amended dismissed for want of equity. From this order complainant appeals.

The bill asserts that the defendant, by false representations, perjury and deception, had obtained a decree of divorce from complainant in the Second Judicial District Court of the State of Nevada in and for the County of Washoe, and she prayed that our Circuit Court review this decree and order it set aside, annulled and held for naught.

It seems to be recognized that if the decree of divorce of the Nevada court is valid, complainant would not be entitled to separate maintenance for the manifest reason that the marriage relation between the parties did not exist.

A technical objection of merit is made against complainant’s bill in that it does not contain, either in the body of the bill or attached thereto, a copy of the bill of complaint in the Nevada court, or the answer' thereto or the findings of that court and its decree. It has been held in Traeger v. Mutual Building & Loan Ass’n, 189 Ill. 314, that;

“In a bill brought to review a decree it is necessary to set out the bill, answer and decree in the former proceedings, and the particulars in which the party exhibiting the bill of review conceives himself aggrieved by it. When the substance, only, of the former proceeding is stated, a copy thereof should be attached to the bill. A mere skeleton of the record to be reviewed will not suffice.”

See also, Axtell v. Pulsifer, 155 Ill. 141.

Can the decree of divorce entered by the Nevada court be impeached? The general rule is that a court of general jurisdiction of a foreign State is presumed to have jurisdiction to render the decree it pronounces, and that its decree should not be held void on the ground that it was deceived and misled, unless the evidence is of such satisfactory character as to exclude any other reasonable conclusion. Knowlton v. Knowlton, 155 Ill. 158; Horn v. Horn, 234 Ill. 268.

It is urged by complainant that the Nevada court did not have jurisdiction of the parties nor the subject-matter. As far as the complainant is concerned, she appeared in the proceedings in the Nevada court, filing her answer to her husband’s bill and participating in the hearing. She also took an appeal from the decree of the District Court to the Supreme Court of Nevada and submitted her controversy' to that court,where after consideration the decree was affirmed.

It is contended, however, that the Nevada court had no jurisdiction of her husband, the complainant in that court. It is the rule that where the question of jurisdiction has been raised in the proceedings in the sister State and there adjudicated, such decision becomes res ad judicata of the question. Van Matre v. Sankey, 148 Ill. 536; Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485; Cherry v. Chicago Life Ins. Co., 190 Ill. App. 70; Forsyth v. Hammond, 166 U. S. 506.

While complainant’s bill before us does not show all the questions which were controverted and determined in the Nevada proceedings, it sufficiently appears that the question of the right of her husband to maintain his action for divorce in Nevada was there raised, as well as other matters. The bill does show that on the appeal to the Supreme Court it was held that her husband, the complainant there, was a resident of Nevada.

We also have before us the opinion of the Supreme Court of Nevada in that case, Blakeslee v. Blakeslee, 41 Nev. 235, 168 Pac. 950. From this it appears that the question of the residence of the complainant husband was in issue and determined by the trial court as a question of fact, which was affirmed by the Supreme Court, which in its opinion said:

“On the question of residence and as to whether the facts supported the good faith of the respondent in his residence within this jurisdiction there is, in our judgment, sufficient in the record to support the conclusion of the trial court in finding affirmatively in this respect.”

The above considerations sufficiently support our conclusion that the Nevada court in'its proceeding had jurisdiction of the parties.

Although complainant does not seem to press the point, yet it is suggested that the Nevada court had no jurisdiction of the subject-matter or power to grant a divorce, for the reason that the grounds of divorce there asserted were acts committed outside the State of Nevada. It is sufficient to say that in the opinion in the Blakeslee case, last referred to, this question was given full consideration and it was there held, supported by many citations, that the courts had power to grant a decree of divorce even where the acts complained of were committed outside the State of the tribunal. This has been held to be the rule in our own State. Roth v. Roth, 104 Ill. 35; Dunham v. Dunham, 162 Ill. 589.

We see no reason to disagree with the conclusion of the Circuit Court, and its decree is therefore affirmed.

Affirmed.


author: Mr. Justice McSurelt

text:
    F. W. Morgan, Appellee, v. George W. Cook, trading as E. C. Cook & Brother, Appellant.
    Gen. No. 24,540.
    1. Landlord and tenant, § 262

      —what does not constitute constructive eviction. A constructive eviction must be something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises, and hence an eviction cannot be claimed where it is clearly proved that the landlord employed extraordinary and unusual efforts to prevent the conditions claimed to constitute an eviction.
    2. Contracts, § 303

      —when promisor discharged from performance. The performance of a contract is excused where there is subsequent inability of performance by some act of or under the authority of the government, in which case the promisor is discharged.
    3. Landlord and tenant, § 264

      —when failure to furnish power not constructive eviction. A constructive eviction by a landlord cannot be predicated upon failure to furnish power in accordance with the requirements Of the lease, where such failure was due to the landlord’s inability to obtain fuel, due to extraordinary snowfall, preventing delivery and the orders of the United States Fuel Administrator regulating distribution of coal.
    Appeal from the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed January 27, 1919.
    Rehearing denied February 10, 1919.
    Trainor & Trainur, for appellant.
    William A. Jenninus, for appellee.

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

   Mr. Justice McSurelt

delivered the opinion of the court.

Plaintiff brought two suits against the defendant for rent and for power furnished the defendant under the covenants of a written lease. Upon trial the court found in the first case there was due from the defendant $257.22, and in the second case $152, and pursuant to a stipulation consolidating the cases a judgment was entered against defendant for $409.22, from which defendant appeals.

Defendant had leased and was occupying the premises for manufacturing. The plaintiff was under covenant in the lease to furnish power, although it was provided that “the lessor is not liable for damages on account of his inability to furnish # * * power providing his inability to do so is caused by strikes, breakdowns or other causes beyond the control of the lessor.” Defendant asserts that the failure of the plaintiff to furnish power upon a certain occasion hereafter described amounted to a constructive eviction which gave the defendant the right to remove from the premises and released him from rental for the balance of the term.

Did the acts of the plaintiff amount to a constructive eviction? Plaintiff is the owner of a large building on May street in Chicago, rented to a number of tenants to whom are furnished heat and electric power generated upon the premises by the use of coal. At the time the lease was made, plaintiff had coal bins in the building capable of storing 125 to 150 tons of coal; the insurance underwriters would not permit the storage of more than 150 tons at a time. The daily consumption of coal was from 12 to 20 tons, and plaintiff had a contract with Eend & Company, operating a coal yard not far from the building, to keep plaintiff supplied at all times. This had been the capacity of the building for storing coal for more than 12 years prior to the occurrence in question.

It was shown by proof that on January 6, 1918, and again on January 12th, there was an unprecedented and extraordinary fall of snow in Chicago and the surrounding country. There was abundant evidence that in the experience of residents of Chicago for a long period of time no such heavy snowfall had ever before been experienced here. The snow was 8 feet deep in the rear of plaintiff’s building where the coal was brought in. By reason of this heavy snowfall the railroads could not move coal, which caused a serious shortage, and thereupon the Cook County Committee of the United States Fuel Administration, under the authority of the act providing “for the national security and defense,” approved August 10, 1917, took charge of the switching of coal by railroads in the Chicago district, and issued an order on January 12th that in view of the emergency the roads should disregard their usual methods of switching coal, and deliver the same to the nearest terminal yards. This prevented the switching of coal cars to coal yards, and by reason of this order Bend & Company had no coal shipped into its yard and was unable to supply plaintiff under their contract, with the result that on January 15th plaintiff’s coal supply was exhausted and he discontinued furnishing power to the defendant, informing him that power would be resumed just as soon as coal could be obtained. It is also in evidence that on January 17th the United States Fuel Administrator, Harry A. G-arfield, issued an order restricting and limiting the use of coal throughout the United States, and prescribing what was generally known as the five fuelless days, beginning at midnight on January 18th and ending at midnight on the 23rd, during which time fuel could not be used except for certain purposes, .not including general manufacturing. It is shown, however, that certain persons manufacturing articles pursuant to war orders were given special permits upon application; that some of the tenants in plaintiff’s building applied for and obtained such permits, but that defendant, although engaged in manufacturing army blankets under war orders, made no attempt to obtain such special permit. There was evidence tending to show that from the date of the order of January 12th diverting the switching of coal from the yards, Bend & Company had no coal of the kind used by plaintiff, and that no other coal companies in Chicago had any; that on or about January 16th it was impossible to deliver coal because of the heavy snow. It is also shown that the agent for plaintiff’s building was very diligent in the attempt to obtain coal, calling up practically every coal dealer in Chicago and offering to pay any price for the same; that he ordered from Wright Bros., who claimed to have coal, two loads, which they failed to deliver, and that he could not get a pound of coal at any price. This witness also testified that the snowstorms of January 6th and 12th were the biggest in the history of Chicago and that no such conditions were ever known here before. The witness related in detail his efforts to secure coal, which proved beyond question that he did everything humanly possible to obtain coal but without success. It was shown that on January 17th plaintiff was able to furnish some power, and on the 19th furnished and delivered power at full capacity. There was also evidence tending to show that prior to the storm plaintiff had an ample supply of coal in his bins to meet reasonable expectations.

In Hayner v. Smith, 63 Ill. 430, the court approved of the rule that a constructive eviction must be “something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises.” This is reasserted in Keating v. Springer, 146 Ill. 481; Barrett v. Boddie, 158 Ill. 479, and Rubens v. Hill, 213 Ill. 523. Applying this rule to the circumstances of this case, it cannot reasonably be claimed that any conduct of the landlord indicated any intention to deprive defendant of such enjoyment; on the contrary, not only the absence of such intention is demonstrated but it is clearly proven that extraordinary and unusual efforts were employed to prevent the failure of the supply of power. It may be true that in the absence of any other evidence the mere doing of the wrongful act of the landlord is sufficient to show intention (Wade v. Herndl, 127 Wis. 544), but this rule is not applicable to the present facts.

It is contended that the obligation to furnish power was an absolute guaranty which cannot admit of failure from any cause whatever. This is not the law. The rule is that the performance of a contract is excused where there is a- subsequent inability of performance by some action or under the authority of the government; in such cases the promisor is discharged. Cyc. vol. 9, p. 630, and cases there cited. See also a recent statement in Hite v. Cincinnati, I. & W. R. Co., 284 Ill. 297, where the court said:

“This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals.”

The actions of the United States Fuel Administration of January 12th and 17th, in taking control of coal deliveries in the Chicago district, were the exercise of the paramount power of the government, operating as a war measure in the particular emergency occasioned by the extraordinary storm. (Federal Act “For The National Security And Defense,” approved August 10, 1917.) In so far as this rendered impossible the performance of plaintiff’s obligation with respect to power, he was discharged from performance.

There is some evidence tending to show that the real reason defendant vacated the premises was his desire for larger space. He had made inquiries for additional space in December, 1917, and looked at several other properties for this purpose; he began to negotiate for a lease of new premises some days prior to January 15th, which was the date power in plaintiff’s building was suspended. It is also shown that the lease of the new quarters was signed on the afternoon of the 15th. There is also evidence that he commenced to move some of his appliances out of plaintiff’s building as early as January 10th, and concluded the moving on February 2nd.

Under the unusual circumstances existing at the time, and considering the conduct of the plaintiff and the orders of the “Fuel Administration,” we are of the opinion that there has not been shown any conduct which should be held to amount to a constructive eviction.

There is some objection to the item of $32.22 for electric power, but we are of the opinion that the evidence sufficiently proves this item.

Complaint is made that the trial court included $75 for March rent in its judgment in the first case, which was commenced February 8, 1918. We cannot determine this from the record before us. The total of the items sued for, including March rent, is $370.34, whereas the court allowed $257.22. We must therefore conclude that the court allowed only such items as were proper, and must presume that March was not included. As to the items in the second suit, the statutory record was not filed in this court, and we cannot therefore know as to the items in the statement of claim in that suit. Judgment was entered on May 13, 1918, so that the month of March could properly have been included in the second judgment.

For the reasons above indicated we hold that the judgment of the trial court was right, and it is affirmed.

Affirmed.


author: Mr. Presiding Justice O’Connor

text:
    Chicago City Railway Company, Appellee, v. Rothschild & Company and John Griffiths et al., trading as John Griffiths & Son, Appellants.
    Gen. No. 24,121.
    1. Pleading, § 476

      —when declaration sufficient after verdict. In an action to recover for the subsidence of a street resulting in damage to a street railway company, caused by excavation for a building in course of construction, an allegation that in making the excavation the support of the soil in the remaining portion of the street was removed, is sufficient after verdict as including not only the removal of supporting soil but percolating water as well.
    2. Appeal and error, § 512

      —when objection to hypothetical question too late. Objection that hypothetical questions assumed facts not in evidence cannot he made for the first time on appeal.
    3. Evidence, § 437

      —what evidence sufficient basis for hypothetical questions. Evidence of defendants’ superintendent on direct examination held sufficient basis for assumptions in plaintiff's hypothetical questions although in conflict with his testimony on cross-examination.
    4. Adjoining landowners, § 1

      —when doctrine of lateral support applicable. A claim that the doctrine of lateral support has no application where the subsiding property was filled land is untenable where the adjacent property was on a level with the land as filled. •
    5. Adjoining landowners, § 1

      —when shown that depression in street due partly to removal of soil from under street. In an action for removal of lateral support, causing subsidence of a public street and causing damage to a street railway operating in the street, evidence held sufficient to show that the removal of soil from under the street was at least in part the cause of the subsidence, and that it was not wholly due to the withdrawal of subsurface percolating waters.
    6. Adjoining landowners, § 1

      —when abutting owner liable for damages for depression in street due to excavation. An abutting property owner who, by reason of excavation on his own property, causes a street to be depressed is liable for the resulting damages, whether such liability extends to a depression caused solely by the removal of subterranean percolating waters not decided.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed January 29, 1919.
    Rehearing denied February 10, 1919.
    Everett & McGonigle and Winston, Strawn & Shaw, for appellants; John C. Everett and Edward W. Everett, of counsel.
    Harry P. Weber, George W. Miller and Arthur J. Donovan, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

The Chicago City Railway Company brought this action in trespass on the case against Rothschild & Company, a corporation, and John Griffiths and George W. Griffiths, copartners, doing business under the name of John Griffiths & Son, to recover the expense incurred by plaintiff in restoring its track and that part of the street in which its tracks were laid. There was a finding and judgment in plaintiff’s favor for $2,592.44, to reverse which defendants prosecute this appeal.

The record discloses that plaintiff by virtue of an ordinance operates a double-track street railway in State and Van Burén streets, Chicago; that State street extends north and south and is intersected at right angles by Van Burén street; that the ordinance required plaintiff to fill, pave and keep in repair 16 feet of the center of the roadway of State and Van Burén streets occupied by its tracks; that while such portions of the streets were in good condition and repair, the defendant Rothschild & Company, lessee of the land situate at the northeast corner of State and Van Burén streets, entered into a contract with the defendants John Griffiths & Son, whereby the latter were to take down an old store building located on the property and construct a new one; that the property has a frontage of 280 feet on State street and 156 feet on Van Bnren street; that the building was to be used as a retail store and was to be nine stories above the ground and two below. The building was to be placed on caisson foundations, most of which went down about 100 feet to bedrock. It is claimed by plaintiff that the excavations for the basement and subbasement and the wells for the caissons caused the surface of the streets to subside, thereby damaging the plaintiff’s property, and to repair such damage plaintiff was required to spend considerable money, to recover which this suit is brought.

There is no dispute but that the excavation for the construction of the building caused the streets to subside, and that the damage resulted from it. Prima facie, the defendants had no right to do this, and therefore it is for them to justify their conduct if they can. They attempted to do this by saying that the subsidence of the streets was caused solely by the withdrawal of percolating water from beneath the surface of the streets, and it is claimed that in such case the defendants are not liable where the work was done without negligence, and that in the instant case there is no claim that they were negligent in the work.

The evidence shows without dispute that Rothschild & Company entered into a contract with the George A. Fuller Company to sink caissons under the north half of the building. There were nine rows of caissons running parallel with State street under this section of the building—nine caissons in each row. Rothschild & Company was authorized by the city to use the subsidewalk space under State and Van Burén streets. This space was 19 feet 10 inches wide on State street and 14 feet 1 inch wide on Van Burén street. The caissons east of the State street curb line, except the ones in the north line of the property, were 6 feet in diameter; those along the north line were 12 feet in diameter, due to the fact that they support not only the Rothschild building, but the one immediately north. All of these caissons go down to bedrock, approximately 100 feet, except those in the curb line, which go down about 74 feet to the second layer of hard pan and are about 4 feet in diameter. The Fuller Company dug the wells and put in the caissons under the north half of the building and did some excavation of the basement. Then that section of the old building was razed, the north section of the new building was erected, and subsequently the same method was followed in the south section. The only work done by the Fuller Company was the construction of the caissons and some excavation under the north section. The sinking of the caissons under the south section, the razing of the old building and the construction of the new one were all done by the defendants John Griffiths & Son. Under the old building, including the subsidewalk space, there was a basement about 10 feet in depth, while under the new building there was a basement about 17 feet deep and a subbasement about 14 feet deep, which of course required considerable excavation work. Along the curb, when the old building was standing, there was a curb about 33 feet deep and a new curb wall built, which wall. This wall was removed and a trench 4 feet in width was dug to the bottom of the subbasement, rested on the first row of caissons.

About the time the Fuller Company had completed the caissons under the north section, it was noticed that the roadway of the street opposite that section began to be somewhat depressed. As the work was completed the roadway was depressed opposite the south section in State and Van Burén streets. The greatest depression in State street was along the curb line and about the middle of the building. It commenced north of the Rothschild building and extended south in Van Burén street and west in State street on ascending grade to the west street car track. The depression in Van Burén street was similar to that in State street. No damages were allowed by reason of the excavation under the north section of the building.

In sinking the circular wells for the caissons the workmen used spades, shovels and picks, depending on the character of the soil. After digging about 4 feet deep, the well would be curbed with tongued and grooved lagging placed on the inside. This method was pursued until the well was completed. When water was encountered it was shoveled into buckets and sometimes a pump was used.

The defendants contend that the charge made in the declaration is that the streets subsided by reason of the excavation under the sidewalks and the sinking of the caissons; that this excavation caused the withdrawal of soil from under the street and not the withdrawal of water, and therefore it was incumbent on the plaintiff to prove the matters alleged; and that if the proof showed that water was withdrawn from beneath the street and not solid matter, plaintiff had failed. We think the declaration will not warrant such a construction. It is averred that John W. Griffiths & Son undertook the work and did sink caissons, but it is not averred that this was under the building or in the sidewalk space; that they did excavate in State and Van Burén streets under the sidewalk, and by reason thereof and the removal of the soil from the streets, the soil under the remaining portions of the streets was interfered with, and the support thereof removed and the soil in the streets depressed. There is no averment that soil or water was removed from under the remaining portions of the street, but the averment is that, by the digging of the caissons and the excavation, the support of the soil in the remaining portions of the streets was removed. This allegation was sufficient to include both soil and water, or either, and is sufficient after verdict. Moreover, on the trial plaintiff introduced, without objection, evidence showing the digging of the wells under the building, the excavation in the basement and subbasement, and under the sidewalk, and no objection was made that this was not competent under the declaration. The only reason it would he incompetent was on the ground of variance, and this should have been specifically pointed out so that the variance could have been cured. Ainslie v. Biggs, 211 Ill. App. 463.

The defendants ’ next point is that the depression of the roadways of the streets was caused solely by the withdrawal of percolating subsurface waters, and as the work which defendants did was lawful, the damages suffered by plaintiff are damnum, absque injuria. We cannot concur with counsel’s contention as to the facts, nor the law. The first witness called by the plaintiff was John 0. Euettinger, who was superintendent and general manager of the defendants John Griffiths & Son, and who supervised, generally, the construction of the work in question. On direct examination he testified that the old curb wall was removed in sections of about 3 feet in depth and about 20 feet in length; that this space was braced by lagging placed against the soil in the street, and that this process was repeated until the trench for the curb wall was completed. On cross-examination he testified that the old wall was removed in sections of about 4 feet square, and that this was braced with lagging. Plaintiff then called two witnesses who were familiar with the soil in the loop district in Chicago, and who testified as experts. In answer to hypothetical questions, they gave it as their opinions that the soil in the remaining portions of the street would slip and creep into the excavation and wells along the curb, and that this caused the depression. Counsel for defendants now contend that admission of this testimony was erroneous for the reason that the method of construction was not embraced in the questions asked; that the questions assumed that the old curb wall was taken down in sections 20 feet in length and 3 feet in height, while the evidence was that it was taken down in sections 4 feet square. This was not the objection made on the trial, and of course cannot be urged here. Moreover, we think the questions were warranted by the direct testimony of their own superintendent, and that there was sufficient evidence to warrant the court in finding that some of the soil was withdrawn from under the roadway by reason of the excavations.

The defendants admit that where soil is withdrawn from the roadway in its natural condition by reason of excavations made by adjoining property owners, the latter are liable for damages caused thereby, and that this is true, although street cars are operated in the street, as this is not an additional servitude. But it is said that the undisputed evidence shows that the roadway in question was not in its natural state, but that there was a fill of some 12 or 15 feet made up of rubbish and other matter, and therefore the doctrine of lateral support does not apply. We think there is no merit in this point, as the evidence shows that the old building was on a level with the street as filled, and there is no showing that the property abutting on the street was not also filled to the same level.

But the defendants ’ main contention is that the depression was caused solely by the withdrawal of subsurface percolating waters and for this no recovery can be had. What we have said disposes of this contention on the facts adversely to the defendants. In support of the legal proposition, counsel cite Popplewell v. Hodkinson, L. R. 4 Exch. 248; Jordeson v. Sutton, Southcoates & Drypool Gas Co., L. R. 2 Ch. (1899) 217; New York Continental Jewel Filtration Co. v. Jones, 37 App. Cas. (D. C.) 511; Frazier v. Brown, 12 Ohio St. 294; Roath v. Driscoll, 20 Conn. 533; Chatfield v. Wilson, 28 Vt. 49.

The Popplewell case, supra, was decided in 1869. There land of a wet and spongy character was conveyed for building purposes, some of it to the plaintiff and an adjoining portion to the defendant. Plaintiff built cottages on his land and on the adjoining portion a church was afterwards constructed. Before this could be done it was necessary to excavate, and in com sequence of this plaintiff’s wet and spongy land was drained and subsided. Plaintiff’s land there would have subsided even if no buildings had been on it. There was no claim of negligence. In holding that no recovery could be had, the court there said (251): “Although there is no doubt that a man has no right to withdraw from his neighbor the support of adjacent soil, there is nothing at common law to prevent his draining that soil, if, for any reason, it becomes necessary or convenient for him to do so.”

In the Jordeson case, supra, where suit was brought to recover damages by the owner of land against an adjoining owner, it was claimed that the latter had caused the former’s land to subside and be damaged by reason of the construction of a gas plant immediately adjoining. There was no dispute about the facts, but the defendants claimed “that, even if that is so, they are not liable at common law for the damage by subsidence, because, first, they only pumped water from their own land. * * * The defendants say, in short, that the subsidence was caused by the withdrawal of underground water from the plaintiff’s land by lawful pumping on their own land, and that, although damage to the plaintiff ensued, no nuisance or other actionable wrong was committed by them. For this they rely on Popplewell v. Hodkinson. The questions thus raised are extremely important and by no means free from difficulty. ’ ’ The court there held that under the evidence the removal of soil and sand caused the damages as well as the removal of water, and continuing said: “In this view of the evidence, it is unnecessary for me to decide whether, if the defendants had done nothing more than pump underground water from their own land and thereby let down the plaintiff’s houses, an action could have been maintained against them. Popplewell v. Hodkinson looks like and has generally been regarded as an authority that no action will lie in such a case. But I am not satisfied that this broad question can be considered as finally settled by that or any other decision. The question involves very important considerations. Two conflicting rights have to be reconciled, namely, the right to support and the right to pump water. It is not necessary to decide which is to give way to the other. I leave the question where it is.”

In the Jones case, supra, Jones owned a piece of improved property upon a public street. The defendant was constructing a railroad tunnel under the street with legal authority to do so. The soil contained considerable percolating water. In excavating for the tunnel under the street, this water was drained from plaintiff’s property and caused it to settle. It was held that no action would lie. The court cites the Popplewell case and Chatfield v. Wilson, supra. In the Ohio, Connecticut and Vermont cases, supra, the question of lateral support was in no way involved. It was there held that where the owner of adjoining land dug a hole or reservoir on his own land and thereby diverted percolating water from a neighbor’s land, no recovery could be had. The only cases in point are the District of Columbia case and the Popplewell case, supra, and the reasoning of the latter seems to have been unsatisfactory to the later English court, as shown by the opinion in the Jordeson case, decided in 1899. Upon sound reason, it appears to us that where an abutting property owner, by reason of excavation, causes the street to be depressed, he should make good the damages. However, it is unnecessary for us to decide whether in such case the abutting property owner would be liable if the depression were caused solely by the withdrawal of subsurface percolating waters, and we leave that question where it is.

The judgment of the Circuit Court of Cook county is affirmed.

'Affirmed.