author: Mr. Justice McGoorty

text:
    Lydia E. Defrees et al., Appellees, v. Robert T. Brydon, Administrator, Appellant.
    Gen. No. 20,938.
    1. Wills, § 229

      —when revoked provisions of will considered for purpose of ascertaining intention of testator. Provisions of will although revoked by item in codicil will be regarded for the purpose of determining the intention of the testator.
    2. Wills, § 398*—what constitutes an executory devise or bequest. An executory devise or bequest of lands or personal property is such a disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency.
    3. Wills, § 398*—when will does not provide for executory devise or bequest. No executory devise or bequest is intended by the testator where provisions for his children made by the testatpr in the will are limited to take effect before his death and are evidently intended as provisions against the intestacy, with reference to property devised in such will, of his children who might die before he did.

      4. Wills, § 230

      —when words in different parts of will harmoniously construed. Courts will not construe the same words used in different parts of the will as having different meanings, if it is possible to do so, but the intention to use the same words in different senses must be clear and beyond question.
    5. Wills, § 229*—when words in codicil construed in harmony with words in will. Where it appears to be the intention of a testator, as between heirs by blood and the estate of a deceased heir without issue, to create executory devises and bequests by provisions in the codicil of his will, which provisions are disputed, and the provisions in such codicil are similar to provisions in the will which show intention to vest such heirs with the fee, and such provisions in the codicil were evidently intended to provide against intestacy during the existence of the trust created by his will and not as a limitation on the fee, the court will construe such provisions to intend his heirs to have an absolute fee in the property devised, on the principle that the same words in different parts of the same will, if possible, ought to be construed to have the same meaning.
    6. Wills, § 339*—when .construed to give fee simple to heir. Instructions in will permitting trustees of the property devised to terminate trust as to any of testator’s children and to pay over such child’s share to it, give such child the power to alienate its property after the termination of the trust, and evidence an intention to give an absolute fee to such children.
    7. Wills, § 226*—when intention of testator will he given effect. Courts will give effect to the intention of the testator unless it violates some established rule of law.
    8. Wills, § 234*—when should he construed to avoid intestacy. A will should be construed so as to avoid intestacy, if possible, as to any of testator’s property.
    9. Wills, § 229*—when codicil and will should he harmoniously const'rued. The provisions of a codicil and the will should be construed so as to harmonize them with each other as far as possible.
    10. Wills, § 283*—when not construed as excluding son-in-lano from inheritance. A clause in a will providing that no daughter of testator with her husband shall so occupy or control the use of the homestead as to exclude therefrom or prejudice any unmarried child of such testator, does not show intention to exclude his son-in-law from inheritance of the property.
    11. Wills, § 283*—when provision excluding son4n-law from inheritance of property except with consent of trustees limited to period of trust. A clause in a will providing that no part of fund in trust for testator’s daughters “shall pass to or be paid to her husband, or in any way be controlled by such husband, except by consent of said trustees,” and provision in codicil that interest held in trust for each of his daughters is given and intended “to he her sole and separate estate, and shall not pass to * * * her husband, except by the consent of her trustees,” held in connection with other provisions of the will, to limit the prohibition only to the time of continuance of the trust as against the surviving husband of one of such daughters.
    12. Wills, § 283

      —when provision of will not construed as excluding husband of heir from participating in heir’s legacy only during period of trust. Where a provision in the first codicil of a will provided that any of testator’s children might, by will, give or bequeath his or her share of testator’s estate to any other child or lineal descendant of testator’s, or of testator’s deceased wife, giving it only to persons of testator’s or testators’ wife’s blood and the last clause in second codicil provided that in case any of the cestuis que trust should die during the existence of the trust in said will and the codicil specified and should not have disposed of his or her trust estate by will, and said trust interest should pass to his or her heirs by inheritance as provided, but it should remain in the hands of said trustees, but thereafter for the benefit of the inheritor, held, that the limitations to convey by will only to persons of the blood ceased with the termination of the trust, and were evidently provisions against intestacy during the existence of the trust and were not intended to exclude husband of one of testator’s daughters from her legacy.
    13. Wills, § 331*—what constitutes violation of rule against perpetuities. A provision in codicil that if any of testator’s children “shall die leaving issue, and such issue shall die childless, then in that case all property derived from me shall go to my other children and their heirs, such heirs to have only their ancestor’s part in any case,” if construed to intend the creation of executory devises or bequests so that property should revert to surviving children of the testator, such construction would be contrary to the rule against perpetuities.
    14. Wills, § 235*—when construction adopted which will give effect to meaning of words. If one construction of a will renders a portion of the language used meaning less and another gives effect to all the words used, the latter must be adopted.
    15. Wills, § 224*—when construction of will and codicil as to disposition of personalty governed by laws of foreign State. Where a testator was domiciled and died in a foreign State, and the will and codicils were drawn in such State, the construction and effect thereof, as affecting personal property, must be governed by the law of that State.
    16. Wills, § 339*—when will construed as creating an estate in fee. Where an item of a codicil to a will made in the State of Indiana and relating to personal property authorizes trustees to use as much of .the trust property as might become necessary, for the benefit of testator’s children, the rule in Indiana, the law of which governs construction of the will and its codicils, is that an absolute power of sale in the first taker renders a subsequent limitation over repugnant and void, and such will and codicils will not be construed to give the first takers an estate for life only so as to bring it within the exception to the foregoing rule whereby, if a testator gives an estate for life only, by certain and express terms, and annexes to it the power of disposition, the devisee in that special case would not take an estate in fee.
    17. Wills, § 336

      —when estate in fee created by disposing words. Testator having used 'the disposing words, “to her or him, or her or his heirs forever,” clearly to confer complete and absolute title, such interest or estate cannot be held to be subject to limitations over, where the provisions alleged to create such limitations are not so clear and decisive as the words expressing the dominant purpose to give absolute title.
    18. Partition, § 2*-—when representative of heir participating in partition settlement bound by such settlement. The estate of a deceased legatee should not be held, in an action to construe a will, to revert to the surviving children of testator or their personal representatives, where all of testator’s children, except one whose property was retained by trustees under the will and the trustees of testator’s estate, filed a petition in the courts of the State in which the personalty was located in which they represented that they had agreed upon a division of such property, and that such division as therein set forth should be taken and held as a full settlement, partition and adjustment of all the property mentioned, and where each child, by order of such court, received an equal amount of cash and securities as a full settlement and adjustment of such child’s right and interest in the trust estate, and no fraud is claimed, and the surviving children of the testator were parties to said proceeding by apt designation for all the purposes essential to determine their respective rights and interests, and only one of the parties to the settlement is now living, and more than forty years have elapsed since it was made, and it is denied by defendant that the property coming to him as personal representative of such deceased legatee is the property derived by her from such settlement.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed March 9, 1916.

      Statement by the Court. This is a proceeding-brought by Lydia E. Defrees, one of the appellees, to construe the will of John H. Bradley, deceased, and for an accounting from the estate of Catherine S. Brydon, deceased, of property which she received from the estate of the testator, her father.
    On or about February 18, 1869, John H. Bradley, while domiciled in the City of Indianapolis, Indiana, made and executed (a) a will, (b) on April 22, 1870, a codicil thereto, and (c) on June 7,1871, a second codicil thereto. On August 12,1872, he died, and the said will and codicils were probated, and his estate administered in the Court of Common Pleas of Marion county, Indiana.
    John H. Bradley left him surviving, the five children mentioned in his said will and codicils, viz., Lydia E. Defrees (the complainant), Frances B. Hill (John F. Devine, as administrator of her estate, cross-complainant), Mary Bradley Kitchen (John B. Kitchen as administrator of her estate, cross-complainant), Emmor Bradley (who died before Catherine S. Brydon, without issue), and Catherine S. Brydon (Robert T. Brydon, her husband, as administrator of her estate, defendant).
    On October 23,1872, the five children of the testator filed a certain petition in the Court of Common Pleas of Marion county, Indiana, in which the said children, as the heirs and devisees of the testator, and the said trustees represented that they had agreed upon a division of said property, real and personal, and that such division, as therein set forth, be taken and held as a full settlement, partition and adjustment of all the property, real and personal, mentioned or intended to be mentioned, therein. Under this petition, by order of the court, each child received and receipted for $18,150, in cash and securities, except Emmor, whose property was retained by the trustees.

      On May 15, 1910, Catherine S. Brydon departed this life intestate, without issue, and Robert T. Brydon, her husband was appointed administrator of her estate, consisting wholly of personalty, which amounted in value to $21,146.51.
    The court below held that the testator intended to and did create executory devises or bequests by the provisions in item sixth of the will and item tenth of the first codicil thereto, and that upon the death of Catherine S. Brydon, intestate and without leaving issue, all of the said property bequeathed to and recovered by her should revert to the surviving children of the testator, and, therefore, that the complainant and cross-complainants (appellees) are entitled to an accounting against the estate of Catherine S. Brydon, deceased, to the extent of $18,150, and that said amount be adjudged and allowed to them against the estate of Catherine S. Brydon, deceased, and against Robert T. Brydon, as administrator thereof, to be paid by the said estate and such administrator thereof, in due course of administration, and that the interest of each appellee is one-third of the total amount of said claim.
    John E. Foster, for appellant.
    Fyffe, Ryner & Dale and William France Anderson, for appellees; Colin C. H. Fyffe, 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.

      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 McGoorty

delivered the opinion of the court.

The questions before this court for decision are:

1. Did the testator intend to create, and did he create executory devises or bequests by the disputed provisions in item tenth of the first codicil to the will of the testator!

2. Did the property of Catherine S. Brydon pass, upon her death, to her personal representative?

3. Did the settlement entered into by the children of the testator terminate the right of each of them in any property received by the other under such settlement?

By item tenth of the first codicil to the will, the devise was directed to the trustees in fee with full power and authority to manage the trust estate and invest the funds thereof for the sole use, ownership and benefit of the testator’s children. The fee of such trust estate could not vest in the children until the termination of the trust. The disposing words are, “* * * when the fund shall be divided by said trustees * * * (each child) to have the one-fifth part of the principal thereof, to her or him or her or his heirs forever. ’ ’ The provisions of item tenth of the first codicil (the construction of which are in dispute) are as follows :

“If any of said children shall die before I do, or afterwards, without leaving issue, such deceased child’s share shall go, and is hereby bequeathed to my surviving children and their heirs equally. In all cases the child or children, of any of my children who may die, shall tahe his or her deceased parent’s share only. If any of my above named children shall die leaving issue, and such issue shall die childless, then in that case all property derived from me shall go to my other children and their heirs, such heirs to have only their ancestor’s part in any case.”

It is contended by appellant that the foregoing limitations upon the rights of the children, continued only during the existence of the trust, are provisions against intestacy, and did not create executory bequests. Upon the other hand, appellees contend that the words “before I die, or afterwards” clearly manifests the intention of the testator to create executory bequests.

It is a recognized rule of construction that the revoked provisions of a will may be regarded for the purpose of determining the intention of the testator. Item sixth of the will, revoked by item tenth of the first codicil, contains the following:

“If any one of my said children shall die without leaving a child or children, before I do, then such child’s share shall be equally divided among my surviving children, and the children of any one dead, leaving issue. In all cases, if any of my said five children shall die, leaving a child or children, such child or children, shall take their, or his or her deceased parents’ part only.
“If any of my said children shall die leaving issue, and such issue shall die childless, then in that case all estate and property derived from me shall go to and belong to my other children, or to their heirs.”

“An executory devise of lands (and this applies also to an executory bequest of personal property) is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency.” (Wendell’s Bl. Com., vol. 2,172.) No executory devise or bequest was intended by the testator to be created by item sixth, because said provisions were limited to take effect before his death and were evidently intended as provisions against the intestacy of any of his property devised to his children who might die before he did. Courts will not construe the same words used in different parts of the will as having different meanings, if it is possible to avoid doing so. The intention to use the same words in different senses must be clear and beyond question. Madison v. Larmon, 170 Ill. 65, 73; State Bank v. Ewing, 17 Ind. 68.

The disputed provisions in item tenth of the first codicil are similar to the above quoted provisions in item sixth of the will, except as to the words ‘' or after-wards” in the clause “if any of said children shall die before I do, or afterwards,” and were evidently intended by the testator to provide against intestacy, during the existence of the trust, and not as a limitation on the fee which would vest in the child as soon as the trust should terminate as to his or her share, unless a contrary intention is shown by other provisions in the will and codicils.

The testator’s intention to give to his children an absolute fee in the property devised, is further evidenced by the following directions to the trustees in item tenth of the first codicil:

“And I do hereby will, order and direct, that said trust in each case, and as to any one of said children, may be terminated, and the share of such child and its increase paid over to such child, whenever it will be for the advantage of such child; of which fact the said trustees shall be the sole judges—and have the power of a parent to decide, and which they may decide, to do so; but I desire that they do not do so, except in a very strong, clear case of its propriety, and not in any case to enable such child to invest his or her money in speculation. ’ ’

The foregoing manifestly gives the children the power, necessarily implied, to alienate the property after the termination of the trust, unless, by some other provision, a contrary intention of the testator is shown. The courts will give effect to the intention of the- testator, unless it violates some established rule of law, and a will should he construed so as to avoid intestacy, if possible, as to any of his property. The will and codicils must be read together as one instrument, and so far as practicable must be reconciled or harmonized together as one consistent whole. 40 Cyc. 1421.

It is urged by appellees that it was the intention of the testator to give his property wholly to persons of his or of Ms wife’s blood, and not to his sons-in-law, or other aliens of the blood. Item fifth of the will provides that no daughter with her husband shall so occupy or control the use of the homestead as to exclude therefrom or prejudice any unmarried child. TMs provision only prohibits the exclusive use and enjoyment of the homestead by the husband of any daughter of the testator. Appellees refer to item seventh of the will wherein it is provided that, “If my daughters or either of them marry, none of said trust fund shall pass to or be paid to her husband, or in any way be controlled by such husband, except by consent of said trustees,” and a somewhat similar provision in item tenth of the first codicil, ‘ ‘ The estate or interest, hereby given to each of my daughters, and held by said trustees in trust for them, is given and intended to be her sole, and separate estate, and shall not pass to or be paid to, or be in any way controlled by, her husband, except by the consent of the said trustees, and such daughter, his wife; and this to apply to principal and increase both.” Wherever in the will and codicils a similar provision occurs, the testator has expressly limited such provision to the time of the continuance of the trust. Immediately following the disputed provisions in item tenth is the following:

‘ ‘Any of my said five children and every one of them, may as he or she pleases, by will, give and bequeath his or her share of my estate to any other child or lineal descendant of mine, or of my deceased wife, giving it only to "persons of my or her blood.”

The last item of the second codicil provides:

“Item:—In case any of the cestui qui trusts shall die, during the existence of the trust, in my said will and the codicil specified, and shall not have disposed of his or her trust estate by will, and said trust interest shall pass to his or her heirs by inheritance as provided; but it and all its increasé shall still remain in said trust, in the hands of said trustees, but thereafter for the benefit of the inheritor.”

The foregoing are the only provisions where a power of disposition, of any of the property of the testator, by will, has been given. The limitations upon the children to convey by will only to persons of the blood ceased with the termination of the trust, and are evidently provisions against intestacy during the existence of the trust.

Under the construction given by appellees to the will and codicils, the third disputed provision in the tenth item of the first codicil is contrary to the rule against perpetuities, said provision being as follows:

“If any of my above named children shall die leaving issue, and such issue shall die childless, then in that case all property derived from me shall go to my other children and their heirs, such heirs to have only their ancestor’s part in any case.”

The rule against perpetuities is that “No future interest in property shall be created which must not necessarily vest within twenty-one years, exclusive of periods of gestation, after lives in being.” 30 Cyc. 1467.

It is a familiar rule of construction that in ascertaining the intention of a testator, effect must be given to all the language used, if it can be done. If one construction will render a portion of the language used meaningless and another will give effect to all the words used, the latter construction must be adopted. Fisher v. Fairbank, 188 Ill. 187, 191; Brumfield v. Drook, 101 Ind. 190, 196. If said third disputed pro-” vision be construed as providing against intestacy, and therefore limited in operation to the existence of the trust, it does not violate any rule of construction.

If, however, the disputed provisions in item tenth of the first codicil are to be regarded as indicating an intention on the part of the testator to create executory devises or executory bequests, are such limitations over valid?

The testator having been domiciled in Indiana where the will and codicils were drawn and executed, and having died there, their construction and effect as to the property involved (personalty) must be governed by the law of that State. Under item ten of the first codicil the first takers, the trustees, were authorized to use so much or all of the trust property as might become necessary for the benefit of the children of the testator. In Indiana, the rule in such cases is that an absolute power of sale in the first taker renders a subsequent limitation over repugnant and void. O’Boyle v. Thomas, 116 Ind. 243; Essick v. Caple, 131 Ind. 207; Stimson v. Rountree, 168 Ind. 169.

The only exception, in Indiana, to this rule is where the testator gives to the first taker an estate for life only, by certain and express terms, and annexes to it the power of disposition. In that particular and special case, the devisee for life will not take an estate in fee, notwithstanding the naked gift of a power of disposition. Mulvane v. Rude, 146 Ind. 476, 483. The will and codicils in the instant case manifestly do not, by certain and express terms, give to the first takers an estate for life only.

It is also a familiar principle that when an interest or estate has been given in clear terms in one clause of a will, such interest or estate cannot be taken away or cut down by a subsequent clause which is not equally clear and decisive of the testator’s intention. Myers v. Carney, 171 Ind. 379, 384. We are of the opinion that the disputed provisions which appellees contend create a limitation over, are not as clear and decisive as the disposing words “to her or him, or her or his heirs forever.” Having intentionally clothed the objects of his bounty with a complete and absolute title, the testator could not preserve that dominant purpose and at the same time subjoin incompatible provisions. Stimson v. Rountree, supra.

We are unable to agree with appellees’ contention that the Indiana cases holding that when property is given absolutely with a gift over of whatever may remain by the first taker at his death, are distinguishable from the instant case, because of the express authority and power given in the instant case to the trustees, with the consent of the children, to decrease the corpus of the trust estate. A gift over in the instant case would necessarily be of “whatever may remain” by the first taker at his death.

We are of the opinion and therefore hold that the bequests and devises to the children of the testator were absolute and gave to them the entire estate without any limitations, and that upon the death of Catherine S. Brydon her property passed to her personal representative.

There is a further reason why the estate of Catherine S. Brydon should not revert to the surviving children of the testator, or their personal representatives. All of testator’s surviving children, except Emmor, now deceased, and whose property was retained by the trustees, filed on October 23, 1872, a certain petition in the Court of Common Pleas of Marion county, Indiana, in which the said children, as the heirs and devisees of the testator, and the said trustees represented to the court that they had agreed upon a division of said property, real and personal, and that such division, as therein set forth, be taken and held as a full settlement, partition and adjustment of all the property, real and personal, mentioned or intended to be mentioned therein. Under this petition, by order of the court, each child received in cash and securities $18,150, as a full settlement and adjustment of such child’s rights and interests in the trust estate. No fraud is claimed by appellees. Family settlements are favorably regarded by courts of equity, and will be upheld where no fraud is shown. McAdams v. Bailey, 169 Ind. 518.

The surviving children of the testator were parties to said proceeding by apt designation for all the purposes essential to determine their respective rights and interests (Boyd v. Robinson, 93 Tenn. 1, 28), as the “children, heirs, and devisees of John H. Bradley.” We see no reason why this agreement should not have the force and effect its terms indicate, even if the parties thereto were possessed of future interests in said trust estate, which we do not hold. Eissler v. Hoppel, 158 Ind. 82, 85.

When it is considered that only one of the parties to the settlement is now living, that more than forty years have elapsed since such settlement was made, that no fraud or mistake is claimed to have entered into same, and that the surviving husband of Catherine S. Brydon, appellant here, denies in his answer that the property derived by his deceased wife through such settlement is the property of which she died possessed, a court of equity should not be inclined to hold that by such settlement all future rights, if any then existed, together with the then present interests of the parties, were not concluded and determined. We therefore hold that such settlement concludes the appellees in this proceeding.

For the reasons stated the decree is reversed, and the cause remanded with directions to dismiss (a) the bill, and amended and supplemental bill of complaint of Lydia E. Defrees, and (b) the respective cross-bills of complaint of John F. Devine, as administrator of the estate of Frances B. Hill, deceased, and of John B. Kitchen, as administrator of the estate of Mary Bradley Kitchen, deceased, appellees, for want of equity.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    Lydia E. Defrees et al., Appellees, v. Robert T. Brydon, Appellant.
    Gen. No. 20,939.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lookwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed March 9, 1916.
    Statement of the Case.
    Bill by Lydia Defrees et al., complainants, against Robert T. Brydon, defendant. From a judgment for complainants, defendant appeals.
    This case is governed by the opinion in Defrees v. Brydon, ante, p. 265, and the decree is accordingly reversed and the cause remanded with directions to dismiss the bill and amended and supplemental bill of complainant for want of equity.
    John E. Foster, for appellant.
    Fyffe, Ryner & Dale and William France Anderson, for appellees; Colin C. H. Fyffe, of counsel.
   Mr. Justice McGoorty

delivered the opinion of the court.


author: Mr. Presiding Justice Pam

text:
    Gundlach Advertising Company, Appellees, v. W. F. Hallam & Company and W. F. Hallam, Appellant.
    Gen. No. 20,806.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 15, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action on a promissory note for $2,000 by Gundlach Advertising Company, plaintiff, against W. F. Hallam & Company and W. F. Hallam, defendants. From a judgment in favor of plaintiff for $2,000, defendants appeal.
    W. F. Hallam & Company, of which W. F. Hallam is president, was a Florida corporation engaged in the business of building, contracting, and in the sale of Florida lands. Some time prior to January 19, 1912, B. J. Bussiere, president of the Classified Ad Company, an advertising corporation having its principal office in Chicago, Illinois, visited W. F. Hallam at Lake-land, Florida, to solicit advertising for his company. In the negotiations between these two men it was represented that the Classified Ad Company was financially responsible and that if permitted to conduct an advertising campaign for the Hallam Company, the result would prove of great value to its business. In these discussions it appeared that the Hallam Company would not be able to pay in cash the amount of money required to conduct this campaign, if entered into, and the plan of giving notes for part of this money was discussed, and in the course thereof it was made known that the Classified Ad Company would undertake to negotiate these notes through one Benjamin E. Page, of Chicago. As a result a proposition for this advertising campaign was submitted to the Hallam Company by the Classified Ad Company, in a letter dated January 19, 1912, addressed to W. F. Hallam & Company, Lakeland, Florida, signed by the Classified Ad Company, per B. J. Bussiere, president. The Hallam Company signified its acceptance thereto by stating in said letter that the proposition contained therein was fully and irrevocably accepted. This letter was submitted in person by Bussiere to the Hallam Company, and all the signatures affixed to said paper and the indorsements thereon were made at Lakeland, Florida, on January 19, 1912. Said proposition provided that in consideration of the Hallam Company placing with the Classified Ad Company an advertising' appropriation of $12,000, the Classified Ad Company agreed to furnish in a thorough, business like, competent manner, advertising in the best available and most valuable mediums. The Classified Ad Company was to establish and maintain a well-equipped correspondence office in Chicago to advance the interests of the Hallam Company in connection with the advertising campaign, and to place* in charge thereof a competent correspondent as manager, the expense of which, viz., $1,000, was to be paid by the Hallam Company. The Classified Ad Company was further to prepare the literature required for the successful prosecution of the advertising campaign and to supervise the publication of all such literature, the appropriation therefor ($2,000) also to be paid by the Hallam Company. The Classified Ad Company further agreed to submit proofs of each piece of literature for final approval. The compensation to be received by the Classified Ad Company for its services in conducting this advertising campaign was to be a commission of three and one-half per cent, of the gross receipts resulting from the advertising campaign, either directly or indirectly.
    In a separate letter of the same date, the Classified Ad Company guarantied that the Hallam Company would receive and do $150,000 worth of business as a result of the advertising appropriation of $12,000. It also guarantied to supervise the literature expenditure of $2,000 and the Chicago office expenditure of $1,000. This guaranty provided that if the Hallam Company should fail to receive $150,000 worth of business within one year from the date of entering into the agreement aforesaid, the Classified Ad Company would refund seventy-five per cent, of the total charge for said service.
    In accordance with the agreements entered into on this date, the Hallam Company gave to the Classified Ad Company in full payment of moneys needed in the campaign, including the expenditures, $6,000 in certificates of deposit, and $9,000 in the form of notes. The note sued on was one of these notes and was for the sum of $2,000 payable on October 19, 1912. This note, as well as other notes, was dated January 19, 1912, payable to W. F. Hallam & Company, at the First National Bank of Lakeland, Florida, with interest from maturity at the rate of ten per cent, per annum. They were signed by W. F. Hallam & Company per W. F. Hallam, and indorsed by W. F. Hallam & Company and by W. F. Hallam individually.
    This note came into the possession of E. T. Gundlach about September 20 or 21, 1912. It was due October 19, 1912. Before its maturity it was taken over by the plaintiff company and Mr. Gundlach given credit therefor on the books of the company. It was not paid at maturity and thereupon suit was instituted against, the Hallam Company and Mr. Hallam personally, by the plaintiff company, in which the judgment was entered from which this appeal has been prosecuted.
    The statement of claim showed that it was a suit based upon a promissory note. Defendants, in their affidavit of merits, alleged:

      First, That the Gundlach Advertising Company had not bought and does not now own the note here sued on; second, that the plaintiff at the time of the pretended assignment to it of said note had notice that the consideration for said note had failed and that there were good and sufficient defenses to said note as between the Classified Ad Company and Benjamin E. Page on the one side, and defendants on the other; third, that at the time of the pretended purchase of the note, the Gundlach Advertising Company and its officers and agents had such knowledge of the facts and circumstances surrounding the giving of this note and its want of consideration as to taint the entire transaction with fraud and to make the purchasing of said instrument by the Gundlach Company an act in bad faith; fourth, that at the time of the pretended purchase of the note by the Gundlach Company, no payment was ever made thereon; that before any payment was made thereon, if any payment was ever made, the Gundlach Company, and its officers and agents had become aware of the defense claimed, by defendants and that the consideration for such note had failed, that the note had been secured from defendants by fraudulent practices, and had knowledge of such other facts and circumstances as to make the purchase of the note amount to an act of bad faith.
    On the trial plaintiff, upon offering in evidence the note and testimony that it was unpaid, rested. The evidence on behalf of defendants showed a breach of the covenants entered into by the Classified Ad Company in consideration of which the note in question, among others, was executed and delivered; that there had been a breach of faith in the negotiation of these notes on the part of the Classified Ad Company and that the title of the said Classified Ad Company to said instrument was defective.
    John W. Creekmur and Robert G. Dreffein, for appellant.
    Adams, Follansbee, Hawley & Steere, for appellee,

      Abstract of the Decision.
    1. Bills and notes, § 446

      —when evidence sufficient to sustain finding that title of payee to notes was defective and breach of faith in transfer. In an action on a promissory note, evidence held (to show a breach of covenants by the payee of note sued on, in consideration of which covenants the note, among others, had been given, and a breach of faith in the negotiation of the note on the part of such payee and that title of payee to said instrument was defective.
    2. Bills and notes, § 411*—when burden of proof on holder of note to show that it or previous holder was holder in due course. In a suit by the holder of a note against the maker and an indorser where defendant, under his affidavit of merits, showed breach of covenants on part of prior holder of the note, in consideration of which covenants the note had been given, a breach of faith by such prior holder in their negotiation and that the title of such prior holder to the note was defective, the burden was then on plaintiff, under section 59 of the Negotiable Instrument’s Act, Hurd’s Rev. St., ch. 98, sec. 77 (J. & A. If 7698) to prove that it, or some holder from whom it derived its title, was a holder in due course.
    3. Bills and notes, § 460*—when question whether plaintiff holder in due course for jury. Whether or not plaintiff suing on a note, alleged by defendants to have been held and negotiated in breach of covenant, was itself a holder in due course or had derived its title from a holder in due course, held to be a question for the jury.
    4. Bills and notes, § 448*—when evidence sufficient to sustain finding that note was purchased in due course from holder in due course. In an action by a corporation on a note which it had received by indorsement from one of its officers before maturity, who had received such note from an officer of the payee to apply on a personal debt of such latter officer, evidence held sufficient to sustain a finding that plaintiff purchased such note in due course, and had derived its title from a holder in due course.
    5. Bills and notes, § 253*—who is holder for value in due course. One who receives a negotiable note, before maturity as payment or security for a pre-existing debt, and without any express agreement, shall be deemed a holder for a valuable consideration, in the ordinary course of trade, and shall hold it free of latent defenses on the part of the maker that the note was accompanied by breach of covenants on the part of prior holders in consideration of which the note was given and a breach of faith on the part of such prior holders in its negotiation.

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

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

6. Municipal Court of Chicago, § 15 —when exclusion of evidence of agents of adverse party proper. The exclusion of the evidence of agents of plaintiff corporation when called for cross-examination under the Municipal Court Act, Hurd’s Rev. St., ch. 37, sec. 33 (J. & A. K 3345), by the defendants, in an action on a note on the question of failure of consideration or breach of faith in its negotiation, held correct where at the time in question defendants had not yet shown failure of consideration for the note or breach of faith in its negotiation so as to cast upon the plaintiff the burden of showing that it was a holder in due course.

7. Appeal and error, § 479*—when objections to instructions not available. Where the record is barren of any objection or suggestion with reference to instructions given, defendants cannot complain on appeal of any error in such instructions, but it is counsel’s duty to bring the matter to the attention of the court at the time.


text:
    Wolf, Sayer & Heller, Appellant, v. T. R. Tessem, Appellee.
    Gen. No. 21,041.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 15, 1916.
    Statement of the Case.
    Action of replevin by Wolf, Sayer & Heller, a corporation, plaintiff, against T. R. Tessem, defendant. From an order on motion of defendant dismissing the suit and for a return of the property taken under the writ, plaintiff appeals.
    On July 11, 1913, a writ of replevin was served on T. R. Tessem, defendant, who on July 17th entered his appearance. On September 4, 1914, upon motion of and notice thereof, the court dismissed the suit and ordered a return of the property taken under the aforementioned writ.
    Abstract of the Decision.
    Appeal and ekrob, § 1295

      —when action of court in dismissing action presumed proper. Where record of action of replevin before Appellate Court, certified to be complete, consists only of affidavit for replevin, the writ, bond, appearance of defendant, motion to dismiss and order of dismissal, which latter was entered after the cause had been pending longer than a year, and no declaration was filed during such time, and there is nothing in the record to indicate why the cause is dismissed, the action of the court in so doing must be presumed to be proper.
    The record before the Appellate Court (certified to be complete) consisted of the affidavit for repleving, the writ of repleving, the replevin bond, the appearance of the defendant, the motion to dismiss the cause, and the order of dismissal. Although the cause was pending for more than a year at a time it was dismissed, no declaration was ever filed. The record contained no bill of exceptions, stenographic report or statement of facts.
    C. C. Collins, for appellant.
    Herman Welk, for appellee; Jesse Wilcox, of counsel.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


text:
    Baldwin Company, Plaintiff in Error, v. W. C. Keeley, Defendant in Error.
    Gen. No. 21,139.
    1. Chattel mortgages, § 48

      —when invalid for defective execution and acknowledgment as against third parties. A mortgage which is executed and acknowledged in 1914 by an attorney in fact acting for such mortgagors under a power of attorney, although it may have been valid as between mortgagor and mortgagee, is invalid as against subsequent lienors not parties or privies thereto, inasmuch as it was not acknowledged and executed by the mortgagors in accordance with section 2 of the Mortgage Act, Rev. St., ch. 95 (J. & A. i 7577), as it existed when the mortgage was executed and acknowledged.
    2. Chattel mortgages, § 1*—when statute in relation to strictly construed. Section 2 of the Mortgage Act, Rev. St., ch. 95, as it existed in 1914 (J. & A. 1f 7577), being in derogation of the common law, must be strictly construed, and chattel mortgages not executed, acknowledged and recorded as provided therein are invalid as to those not parties or privies thereto.
    3. Replevin, § 123*—what does not constitute prima facie case in action against person claiming innkeeper's lien. Where mortgagee of a piano in its replevin suit against one claiming an innkeeper’s lien on such piano did not confine its evidence merely to the execution of the mortgage and a breach of its covenants, but by its own evidence showed defendant’s possession was not mere naked possession of a disinterested third person, but the possession by virtue of an innkeeper’s lien, held that such proof did not make a prima facie case for plaintiff in the absence of proof of facts negative to the right to an innkeeper’s lien.
    4. Innkeepers—what constitutes effects and valuables which are subject to lien. Under the Innkeeper’s Act, Rev. St. ch. 71, sec. 1, 2 (J. & A. KIT 6193, 6194), providing for a lien upon all “baggage,” “other valuables” and “effects” brought into a hotel by guests, a player piano brought into a hotel by a guest must be considered as part and parcel of his effects or valuables.
    5. Appeal and error, § 1786*—when case not reversed upon failure to raise questions in lower court. Courts of review are opposed to the reversal of cases upon questions which should have been raised in the court below and which are raised for the first time on appeal or error.

      Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.
    Rehearing denied March 30, 1916.
    Statement by the Court. This is a replevin action brought by plaintiff in error (plaintiff below) against defendant in error (defendant below) to recover possession of a player piano. At the close of plaintiff’s case, on motion of the defendant, the court instructed the jury to find the issues for the defendant, whereupon the jury returned a verdict finding the right to the possession of said property in the defendant and assessing defendant’s damages in the sum of one cent. Upon this verdict the court rendered a judgment in favor of defendant and awarded a writ of retorno habendo, to reverse which plaintiff has sued out this writ of error.
    Joseph E. Winterbotham, for plaintiff in error.
    Robert C. Wheeler, for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

The evidence offered on.behalf of plaintiff showed that plaintiff, on February 18, 1914, sold a Hamilton player piano to a Mrs. G-ertrude Mace and a Mrs. E. G. Russell for $500, payable in monthly instalments; that on the same day the said Mrs. Mace and Mrs. Russell executed a power of attorney to one Rosecrans, to execute and deliver to the plaintiff a chattel mortgage covering the instrument in question, to secure the payment of the purchase price; that said chattel mortgage contained the following covenants: That if default should be made in the payments, or if the goods were removed without the consent of the plaintiff (the mortgagee), or if the mortgagee should feel unsafe or insecure, the mortgagee (plaintiff) might declare the entire amount due or take possession of the property, without notice or demand; that said mortgage was executed by the said Rosecrans, acting under said power of attorney, on June 29, 1914, and recorded July 1, 1914; that the piano was delivered on February 19, 1914, to 5021 Grand boulevard, Chicago, where Mrs. Russell and Mrs. Mace lived, the former having charge of the apartment; that on or about March 4th Mrs. Mace left Mrs. Russell’s apartment; that the piano, however, remained there; that on or about June 1st, Mrs. Russell and a Mrs. Ray took two rooms at the New Southern Hotel, owned by the defendant; that among the effects which they brought there was the piano in question; that about two weeks thereafter they left the hotel, leaving, among other effects, said player piano.

The evidence further shows that on October 9th a representative of plaintiff (one Lawrence) talked with defendant and stated to him that he wanted to get the player piano left there by Mrs. Russell; that defendant told him Mrs. Russell and Mrs. Ray had left the hotel, leaving said player piano and some worthless property, and that he (defendant) had decided to hold the player piano for the indebtedness due the hotel, and for him (Lawrence) to take the matter up with his (defendant’s) attorney; that on October 9th Lawrence consulted with Mr. Winterbotham, counsel for plaintiff.

The evidence further shows that Mr. Winterbotham took the matter up with Mr. Wheeler, counsel for defendant, and on October 14th received the following letter:

“I find that Mrs. Ray and Mrs. Russell left an unpaid bill at the New Southern Hotel amounting to $157.64. Upon receipt of this amount, we shall be glad to deliver your piano to you.
“After you have investigated the law in regard to Inn-keeper’s liens along the lines that I suggested today, I wish you would call me up and let me know whether or not you think we are right in contending that we have a lien on the piano.
Tours truly,
Robert C. Wheeler.”

that thereafter Mr. Winterbotham again talked with Mr. Wheeler over the telephone and was told that defendant would not give up the piano unless the amount mentioned in the foregoing letter ($157.64) was paid him; that Mr. Winterbotliam replied that he would not pay this because his client had been told by defendant “that the player piano was all right at the hotel and that there would be no storage charges on it”; and that he (defendant) knew plaintiff owned the player piano by virtue of a chattel mortgage.

Under the foregoing evidence, plaintiff maintains that it had made out a prima facie case, wherefore the court erred in directing a verdict for the defendant and in entering judgment thereon.

It is an admitted fact in the case, that the mortgage upon which plaintiff rests its title was not executed by the mortgagors personally, but that it was executed by an attorney in fact acting for them, and that the acknowledgment in the Municipal Court of Chicago was likewise made under a power of attorney. Under the holding of our Supreme Court, such execution and acknowledgment did not comply with section 2 of our Mortgage Act, Rev. St., ch. 95 (J. & A. 7577), as it then existed, which act is in derogation of the common law and must therefore be strictly construed; and it has been further held that a chattel mortgage not executed, acknowledged and recorded as provided for by statute, even though valid as between mortgagor and mortgagee, is invalid as to those not parties or privies thereto. W. W. Kimball Co. v. Polakow, 268 Ill. 344; id. 190 Ill. App. 174; Second Nat. Bank v. Thuet, 124 Ill. App. 501. At the time this chattel mortgage was executed there was no provision in the statute authorizing the execution and acknowledgment of a chattel mortgage under a power of attorney, and therefore, under the law as it existed at the time the mortgage in question was executed, it was not a valid mortgage as against a subsequent incumbrancer, lienor, judgment creditor or an officer by virtue of a valid writ, execution or warrant. In arriving at this conclusion, we are not unmindful of the fact that since the decision in W. W. Kimball Co. v. Polakow, supra, was handed down, our Legislature amended section 2 of our Mortgage Act, supra, whereby an acknowledgment ■ by an attorney in fact acting under a power of attorney is authorized. Session Laws of 1915, p. 528.

Plaintiff contends that in the case at bar, all that was necessary to make out a prima facie case was to show the execution of the mortgage and a breach of its covenants, and that the question whether said mortgage was valid as against third persons was one of defense. While counsel does not cite Allcock v. Loy, 100 Ill. App. 573, yet that case supports its contention. In that case, however,- the court also held that the evidence offered by the plaintiff did not disclose that defendant (a third person) was such interested third person as the statute provided for. To meet the contention of the plaintiff, defendant cites Second Nat. Bank v. Thuet, supra, which was a replevin action brought by the mortg-agee to recover certain property from a person not the mortgagor. The mortgage upon which that suit was based had not been executéd in conformity to the statute, and the court held that where the property was found in possession of a third person, it was incumbent upon the plaintiff, in addition to showing the execution of the mortgage and a breach of its covenants, to offer evidence showing that the third person had no right or interest therein as provided by the statute. In arriving at that conclusion, however, the court recognized that thereby it put upon the plaintiff the necessity of proving a negative, which was contrary to the general rule, but stated that was a misfortune resulting from his defective mortgage. These decisions are at variance with each other, and while the writer of'this opinion, speaking for himself alone, is in accord with the reasoning and the rule of law as announced in Allcock v. Loy, supra, yet under the facts in the case at bar, under either holding, we are of the opinion that plaintiff failed to make out a prima facie case, because the plaintiff did not confine its evidence merely to the execution of the mortgage and a breach of its covenants, but by its evidence showed defendant’s possession was not a mere naked possession of a disinterested third person, but that it was the possession of a lienor. The evidence clearly shows that the piano in question was brought to defendant’s hotel by Mrs. Bussell, one of the mortgagors, and placed in the room occupied by herself and Mrs. Bay, and that defendant claimed there was due him for hotel charges the sum of $154.67, and that defendant claimed an innkeeper’s lien on this player piano for said sum, as authorized under the statute. In Allcock v. Loy, supra, the court said, p. 575:

“Appellant’s evidence made a prima facie case, and did not disclose that appellee ivas in any manner such an interested third person as the statute provides for, and as appellee offered no evidence, the court could not assume that he had such interest. Mere naked possession is not such an interest, and if appellee had other interest than mere possession, the burden was upon him to prove it. Appellant should not have been required to prove that appellee had not such interest.”

But in the case at bar the evidence shows more than the mere naked possession; it shows defendant to be such interested third person as the statute provides for, and therefore plaintiff was also required to prove, in making out a prima facie case, such facts as would negative the right to an innkeeper’s lien that the evidence showed defendant was entitled to.- No evidence of this character was submitted by plaintiff, and in the absence thereof, the plaintiff failed to make out a prima facie case, under either Allcock v. Loy, supra, or Second Nat. Bank v. Thuet, supra, and the court properly directed a verdict for the defendant.

While plaintiff contends that the piano in question is not such property as the Legislature contemplated should be subject to an innkeeper’s lien, we cannot concur therein. Section 2 of the Innkeepers Act, Rev. St. ch. 71 (J. & A. 6194), provides in part as follows:

“Every hotel proprietor shall have a lien upon all the baggage and effects brought into said hotel by his guests for any and all proper charges due him from such guests for hotel accommodations,” * * * (italics ours) and section 1 of the Lien Act, Rev. St., ch. 82 (J. .& A. If 7179), states:
“Hotel, inn and boarding house keepers shall have a lien upon the baggage and other valuables of their guests or boarders brought into such hotel, inn or boarding house by such guests or boarders, for the proper charges due from such guests or boarders for their accommodations, board and lodgings and such extras as are furnished at their request.” (italics ours)

A piano brought into a hotel by a guest must, in view of the foregoing language, be considered as part and parcel of either his or her effects or valuables.

Plaintiff further contends that even though defendant was entitled to a lien, yet under section 22 of the Replevin Act, Rev. St., ch. 119, (J. & A. 9207), the judgment was improper; that said section provides that where the evidence shows that the property was held by the defendant for the payment of money due, the judgment may be in the alternative viz, that plaintiff be ordered to pay the amount rightfully due defendant, within a certain time, or make return of the property; that in the case at bar the right of the defendant in the property, at best, was but a lien for money due, and that therefore the court should have entered a judgment in the alternative, and that its failure to do so was error. This contention is raised for the first time in this court. We have carefully examined the record and find it barren of any request by plaintiff for such form of judgment; nor was any exception taken to the entering of the judgment complained of. Courts of review are opposed to reversing cases upon questions which should have been raised in the court below and which are raised for the first time on appeal or writ of error.

Other errors have been assigned, which we have carefully examined, but are of the opinion that they are without merit.

Finding no reversible error, the judgment of the Municipal Court of Chicago will be affirmed.

Affirmed.


text:
    Louis A. Lencki, Defendant in Error, v. John Schultz and Mary Schultz, Plaintiffs in Error.
    Gen. No. 21,212.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.
    Statement of the Case:
    Action of forcible entry and detainer brought by Louis A. Lencki, plaintiff, against John Schultz and Mary Schultz, defendants, under clause 6 of section 2 of the Forcible Entry and Detainer Act, Rev. St., ch. 57 (J. & A. If 5843). From a judgment entered on a verdict for plaintiff, defendants prosecute a writ of error.
    Plaintiff’s evidence showed that defendants were in possession of the premises in question at the time of the demand for possession and the bringing of the action; that defendant John Schultz was on the property at the time of the execution of the deed conveying same. There was introduced in evidence a quitclaim deed from John Schultz and Mary Schultz, his wife (defendants), to the plaintiff, and the demand for possession served by plaintiff upon the defendants.
    On behalf of the defendants there was an offer to show that at the time this quitclaim deed was given to the plaintiff, the defendants were threatened with a personal injury suit; that this conveyance was made at the suggestion of plaintiff, who said he could settle the case for little money; that he would hold the property as security for moneys advanced in settlement and not place the deed of record; that the property was to be deeded back when the personal injury suit had been disposed of and the plaintiff reimbursed for advances made, if any; that the deed was given with the understanding that it should not in any way disturb the possession of defendants; that nothing was ever paid by Lencki; that when defendants demanded the deed back, plaintiff discharged John Schultz from his employ and started an action in forcible detainer. After this offer was made, counsel for defendants stated: “I offer to show by the witness that in fact the title to the property in question is involved in this suit, and ask to have the court pass upon that issue.” This offer was rejected and exception taken thereto. There was also an offer to show that in a former action of forcible entry and detainer plaintiff had testified that John Schultz was to remain in possession as a tenant of the plaintiff, which offer was also refused. In making this offer, defendants contended that the relationship of landlord and tenant did not exist.
    Before the close of the case plaintiff offered in evidence a decree entered in the Circuit Court of Cook county in the case of Mary Schultz, one of the defendants herein, against plaintiff and John Schultz, the other defendant, to set aside the deed (which was the deed offered in evidence in the case at bar) given by her husband and herself to the plaintiff; he also offered in evidence the bill of complainant and his (Lencki’s) answer thereto. That suit was based upon practically the same facts as defendants offered to prove as matters of defense in the action at bar. Objection was made on behalf of John Schultz, on the ground that he was not a party to the action. It appeared, however, that he attended as a witness for the complainant in that action.
    Abstract of the Decision.
    1. Forcible entry and detainer, § 22

      —what is nature of right of possession in grantee. In an action o£ forcible entry and detainer by a grantee holding a deed against the grantor in possession, who has refused, upon demand, to give possession, the question of title between plaintiff and defendants or any one else cannot be tried, and the right to possession in the plaintiff is not dependent upon his title but upon the existence of specific facts mentioned in Forcible Entry and Detainer Act, Rev. St., ch. 57, sec. 2, clause 6 (J. & A. f 5843).
    2. Forcible entry and detainer, § 16*—when action lies for unlawful detainer by grantor. A quitclaim deed to the plaintiff from the grantor and a continuance in possession by the grantor after a written demand for possession are facts upon which an action of forcible entry and detainer may be maintained under Forcible Entry and Detainer Act, Rev. St., ch. 57, sec. 2, clause 6 (J. & A. K 5843).
    3. Forcible entry and detainer, § 73*—when evidence inadmissible as bearing upon question of title of plaintiff. In an action of forcible entry and detainer by a grantee against a grantor, withholding possession after demand, under the Forcible Entry and Detainer Act, Rev. St., ch. 74, sec. 2, clause 6 (J. & A. H 5843), evidence that the quitclaim deed from defendant to plaintiff was intended to secure plaintiff for moneys advanced and that the deed was given with the understanding that it should not disturb defendants’ possession and that nothing was ever paid by plaintiff, was not competent because it sought to put in issue the title of the plaintiff.

      Coburn & Bentley, for plaintiffs in error.
    Smietanka, Johnson & Molthrop, for defendant in error.

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

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Forcible entry and detainer, § 77 —when deed admissible to show fact of possession. In an action of forcible entry and detainer by a grantee against a grantor the introduction of the deed to the premises is proper and is necessary, in connection with the fact of possession, to show that there was a grantor who conveyed and a grantee to whom the conveyance was made.

5. Appeal and error, § 1466*—when admission in evidence of pleadings in prior case harmless error. Where, in an action of forcible entry and detainer it was contended that there was an improper admission in evidence of the bill, answer and decree in a prior case wherein one of the defendants in the case at bar was complainant, and in which the plaintiff and the other defendant in the case at bar were defendants, which prior case was for the purpose of setting aside the deed upon which the case at bar depends, and where objection to such evidence was not made by the complainant but by her husband, who was defendant in such suit and a witness in behalf of the complainant therein, held not error to admit such evidence and that, at best, it was only cumulative, and inasmuch as the court in the case at bar instructed the jury to find for plaintiff, its admission could not be considered harmful.

6. Estoppel, § 87*—when tenant estopped to claim relationship of landlord and tenant. In an action of forcible entry and detainer, where defendant claims that conveyance from him to plaintiff was to secure plaintiff for money advanced, such defendant is estopped from thereafter claiming the relation of landlord and tenant and cannot present evidence that in a previous trial in forcible entry and detainer, plaintiff testified that defendant was his tenant.


text:
    Margaret Reese, Appellee, v. Henry C. Reese, Appellant.
    Gen. No. 21,300.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.
    Statement of the Case.
    Bill for divorce by Margaret Reese, complainant, against Henry C. Reese, defendant. From an order committing defendant to jail until he complied with an order for the payment of temporary alimony, and an additional sum as charges of the master in chancery, or until released by law, not to exceed the period of six months, defendant appeals.
    On December 21, 1914, a rule was entered upon Henry C. Reese, defendant, to show cause why attachment should not issue for his failure to pay temporary alimony during the preceding five weeks. Defendant filed a sworn answer wherein he stated that he had no money with which to pay the alimony to the complainant, and set forth in detail his income, expenditures and liabilities; also that he was taken sick on November 21st, and since December 2nd had been confined to his bed, and that for a great part of the time he was under the care of a physician, his ailment being ulcer of the stomach. Attached thereto was an affidavit of his physician under date of December 21st, stating that since December 2nd defendant had been under his care; that he was suffering from ulcer of the stomach and was unable to work.
    The matter was referred to a master in chancery to determine whether defendant was in contempt of court for failure to pay all or any part of the alimony due-under the order of the court theretofore entered, the matter to make his report within forty-eight hours. On January 14th the master filed his report, wherein he made certain findings from which he concluded that defendant was in contempt of court, and recommended that defendant be committed until he should properly comply with the rule in relation thereto. Said report contained the testimony taken before him on the reference. On January 15th the master submitted a supplemental report wherein it was stated that the objections filed to said report by defendant were duly argued and overruled, and wherein he further certified that a stenographer was necessarily employed to transcribe the testimony; that a copy of such testimony certified by the master and attached to his report was made by the stenographer; that a reasonable fee for such stenographic services was $13.50, and that said master’s fee therein was $25, making a total of $38.50. It was ordered that defendant’s objections filed thereto stand as exceptions. On January 18th the court approved the master’s report, and found that defendant was able to pay the alimony due under the order theretofore entered, and that defendant wilfully refused to pay said alimony; that there remained due and unpaid to the complainant the sum of $45 as alimony on the order theretofore entered by the court; allowed and approved the master’s charge of $38.50, and ordered that defendant “be committed to the County Jail of this County, until he shall have complied with said order of this Court, and shall have paid all of said amount of Forty-five ($45.00) Dollars, as alimony due, and the additional sum of Thirty-eight and 50/100 ($38.50) Dollars, as Master’s charges, or until released by due process, not to exceed the period of six months however.”
    John E. Van Natta, for appellant.
    Frank J. Snite, for appellee; Leo H. Hoffman, of counsel.

      Abstract of the Decision.
    1. Appeal and ebbor, § 1399*—when findings of master sustained. Findings of a master on question of fact which have been concurred in by the chancellor must be affirmed unless clearly and manifestly against the weight of evidence.
    2. Contempt, § 77*—wJien payment of costs in contempt hearing condition precedent to discharge from order of commitment for contempt. Master's charges on account of hearing, whereby defendant was found guilty of contempt for default in payment of alimony, are not ordinary costs in a chancery suit that may only be collected by execution, but inasmuch as the costs were incurred by defendant’s failure to comply with a previous order of the court which led to the contempt proceedings, defendant himself was responsible for such costs, and payment of them may be made a condition precedent to a discharge from an order of commitment entered because of the contempt.
   Mr. Presiding Justice Pam

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Mehan, Defendant in Error, v. David T. Mehan, Plaintiff in Error.
    Gen. No. 21,454.
    1. Divorce, § 137

      —when wife entitled to attorney’s fees for past services in dismissed case. Where during the pending of divorce proceedings, afterwards dismissed, complainant is allowed solicitor’s fees for past services, she is entitled to retain same in spite of the' dismissal, it appearing that the payment thereof is necessary in order to enable her to further carry on an action or maintain her defense thereto.
    2. Appeal and error, § 1270*—when presumed that chancellor found that allowance of attorney’s fees to complainant in divorce action was necessary. Where nothing but the order in divorce proceedings allowing solicitor’s fees is before the court, in the absence of any evidence to the contrary, the court must presume that the chancellor believed the wife to have a probable cause of action and that the payment of such fees, whether for past services or for future services, was necessary to enable the wife to maintain her action.
    3. Divobce, § 135

      -—when wife entitled to solicitor’s fees. The allowance of solicitor’s fees under the Divorce Act, Hurd’s Rev. St. ch. 40, sec. 15 (J. & A. 4230), is not contingent upon a successful termination of the suit, but if it appears at the time of making the request that the wife has a probable cause of action, she is entitled thereto.
    4. Divobce, § 149*—when order for allowance of attorney’s fees to wife as complainant presumed to be for benefit of defendant. An allowance of solicitor’s fees in’an order pending divorce proceedings whereby defendant is permitted to pay $100 within thirty days and the remaining $100 in another thirty days must be presumed to have been for the benefit of defendant himself.
    5. Divobce, § 139*—when defendant not relieved from payment of attorney’s fees. The mere fact that the terms for payment of attorney’s fees to the wife as complainant are made convenient to the defendant does not relieve defendant of paying them when the suit afterwards terminates in his favor and is dismissed, where the court retains power to compel such payment notwithstanding the dismissal of the bill for want of equity.
    6. Contempt, § 70*—when order of commitment not defective as denying defendant right to purge himself by payment of money. An order that defendant in contempt proceedings brought on account of his nonpayment of solicitor’s fees allowed in divorce proceedings against him, shall be entitled to. his relief from imprisonment upon payment of $100 at any time after commitment, but that in default thereof he cannot be held in jail for more than thirty days, cannot be considered fatally defective on the contention that it omits the right of defendant to purge himself by paying the money.
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.
    Ernest Saunders, for plaintiff in error.
    James E. Brown, 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. Presiding Justice Pam

delivered the opinion of the court.

Plaintiff in error (defendant below) was found guilty of contempt for nonpayment of solicitor’s fees allowed by the court in an order entered June 24, 1914.

This proceeding is the. aftermath of a suit for divorce by Telona Mehan, the relatrix herein, against the defendant. In June, 1913 the relatrix filed a bill for separate maintenance, and in November of the same year, a supplemental bill for. divorce, upon the hearing of which the cause was dismissed on June 29, 1914, for want of equity. In its decree of dismissal, however, the court expressly retained jurisdiction of the parties for the purpose of enforcing its order of June 24th allowing the relatrix $200 as solicitor’s fees.

Defendant, in urging a reversal of the foregoing order, contends, first: “That the dismissal of the bill for want of equity disposed of the entire subject-matter, and that there was nothing left to adjudicate upon; that all interlocutory orders fall on the dismissal.” In support thereof he refers us to Newman v. Newman, 69 Ill. 167; Anderson v. Steger, 173 Ill. 112, and Chestnut v. Chestnut, 77 Ill. 346. These cases, defendant contends, establish the rule of law, that where parties have settled the controversy and resumed living together, or where the wife is the complainant and the court finds against her, the court has no power to order payment of solicitor’s fees for past services; that section 15 of our Divorce Act, Rev. St., ch. 40. (J. & A. If 4230), wherein it is provided that the husband pay to the wife or into court, for her use during the pendency of the action, such sum or sums of money as may enable her to maintain or defend a suit, contemplates that said provision shall be made in advance. In Anderson v. Steger, supra, the court refers to Beadleston v. Beadleston, 103 N. Y. 402, as announcing the same principle of law. However, in Beadleston v. Beadleston, supra, the court, in reversing an order for solicitor’s fees, stated that it based its decision upon the precise facts there in evidence, and said further, p. 405:

“We have no doubt that an allowance to a wife during the pendency of the action, for some past expense, might be authorized if it were shown that its payment was necessary to enable her to further carry on the action or her defense thereto,”

and in McCarthy v. McCarthy, 137 N. Y. 500, the court in announcing the same principle of law said, p. 503:

“Upon such an application, if it should appear that in previously carrying on her action the plaintiff had incurred expense, the payment of which was essential to be made in order that she might further maintain or prosecute her rights, under the judgment, it would be quite within both the letter and the spirit of the statute to comprehend in an allowance the unpaid item of the past.”

To the same effect is Loveren v. Loveren, 100 Cal. 493 and Schuster v. Schuster, 84 Minn. 403, 87 N. W. 1014. In all these States the provision in the statute for allowance of solicitor’s fees is practically identical with that in our statute. We have reviewed the decisions of many other States, and find that the foregoing represent the weight of authority. They all, hold that although a wife cannot ordinarily obtain an allowance for solicitor’s fees for past services, she may receive same where it is shown that the payment thereof is necessary in order to enable her to further carry on an action or maintain her defense thereto. In the Illinois cases cited by counsel and referred to supra, the order for solicitor’s fees was entered at the time the cause was dismissed, while in the case at bar the order was entered during the pendency of the action (five days before the dismissal and before the hearing).

Defendant further contends that the record in the case at bar shows that the allowance for solicitor’s fees was for past services, and consequently the court was without power to enter the order. We have before us only the order itself, which is as follows:

“On motion of complainant herein and upon complainant exhibiting to the court her petition for an allowance of solicitor’s fees and an itemized statement attached thereto, enumerating the legal services performed by solicitor for complainant in said cause, and upon evidence heard in open court, both oral and documentary, and it appearing that said defendant has heretofore paid to the complainant on account of her solicitor’s fees, the sum of only $25.00, the court finds:
“That the defendant is able to pay reasonable solicitor’s fees in said cause:
“Now therefore, it is ordered, that said defendant, David T. Mehan, pay to the complainant, Telona Mehan, as and for her reasonable solicitor’s fees in said cause an additional sum of $200.00, in the manner following:
“One Hundred ($100.00) Dollars of said sum within thirty (30) days and the remaining One Hundred ($100.00) Dollars within sixty (60) days.”

While reference is made in said order to the petition praying for an allowance of solicitor’s fees'and also to an itemized statement, yet neither the petition, the itemized statement nor any of the oral or documentary evidence appear in the record. There is nothing in the foregoing order to indicate that the allowance of $200 was the amount asked for in the petition, or that it equaled the amount shown by the itemized statement of account therein referred to. In the absence of any evidence to the contrary, we must presume that at the time the order was entered, the chancellor was of the opinion that the relatrix had a probable cause of action and that the payment of said $200, whether for past services or for services yet to be performed, was necessary to enable the relatrix to maintain her action.

It must be presumed that when the court entered the order in question, the provision therein allowing defendant thirty days in which to- pay $100, and thirty days more in which to pay the remainder, was for the benefit of the defendant and at his request. The allowance of solicitor’s fees under our Divorce Act is not contingent upon a successful termination of the suit, but if it appears at the time of making the request that the wife has a probable cause of action, she is entitled to the benefit of section 15 of our Divorce Act (J. & A. If 4230). The mere fact that the court, in consideration of the husband’s circumstances, makes the terms of the payment thereof convenient for him is no reason why the husband should be relieved of paying them when the suit terminated unfavorably to the wife. The payment of solicitor’s fees being in futuro, it must be presumed that when the court proceeded to hear the case it naturally expected that the order would be obeyed, independently of the outcome of the suit. The court heard the case on this presumption, and counsel continued his services upon a like presumption; and if the court was without the power to enforce the order in question, regardless of the outcome of the suit, the wife would be divested of the benefit of a statute which was expressly enacted in her interest. Recognizing that power, the court reserved, in its decree, the jurisdiction to compel payment of the solicitor’s fees: Such a reservation also appeared in the decree in Anderson v. Steger, supra, and it wás in no way criticised by our Supreme Court. We are therefore of the opinion, from the facts and circumstances in the case at bar, that the court in entering the order of June 24th for the payment of solicitor’s fees, did so to enable the relatrix to maintain her action, and that the court had the power to compel a compliance with said order by the defendant, even though the bill was dismissed for want of equity.

Finally it is maintained that the commitment order is fatally defective in that it omits the right of defendant to purge himself of the contempt by paying the money. We cannot concur therein. This order, reasonably construed, can mean only that defendant shnll be entitled to his release from imprisonment upon payment of $100 at any time after commitment, but that in default thereof, he cannot be held in jail for more than thirty days. In Kyle v. People, 72 Ill. App. 171 (relied upon by defendant), the order of commitment was quite different from the one now before us.

Finding no reversible error, the order of the Circuit Court of Cook county will be affirmed.

Affirmed.


author: Mr. Justice Goodwin

text:
    Stanley Kumorowski, Appellee, v. Armour & Company, Appellant.
    Gen. No. 20,911.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 15, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Stanley Kumorowski, plaintiff, against Armour & Company, defendant, for $7,500 as damages on account of plaintiff’s fall from defendant’s freight elevator. From a judgment in favor of plaintiff, defendant appeals.
    The accident upon which the suit is based occurred on May 15, 1911, while plaintiff was trucking a load of empty boxes in the canning department of defendant’s packing house. Plaintiff, a Lithuanian, had been in this country a year at the time. Previous to the accident, for about six or seven months, plaintiff had been trucking heavy boxes. He testified that he had never previous to the accident, trucked empty boxes. Except during a period of several months, empty boxes had been trucked by boys. Different witnesses testified conflictingly as to whether or not he had trucked empty boxes and as to the amount thereof.

      At the time of the accident plaintiff was twenty years old, weighed from 175 to 176 pounds, and was five feet, seven inches in height. On the day of the accident, while he was trucking full boxes, he was ordered to put down his truck and take one of the trucks used for empty boxes. Trucks used for full boxes were ordinary hand trucks, with handles, two wheels in front, and a back at the end, over the wheels, from two to two and one-half feet high. The trucks used for empty boxes were similar except that their backs were between four and four and one-half feet high and their floors were thirteen inches above the ground, making -the top of the back of the trucks from five feet, one inch, to five feet, seven inches high.
    A foreman named Sullivan piled the boxes on his truck until they were, according to plaintiff’s testimony, as high as the top of the fingers of his hand when his arm was stretched up full height. Sullivan then told him to take it from one room to the other, according to plaintiff’s evidence, but all this was denied by Sullivan. Plaintiff also testified that boxes were piled to within five inches of the end of the handles. The elevator upon which plaintiff wheeled the truck was five feet, eight inches wide, seven feet, five inches long and open at both ends. Consequently, when a truck was placed in the exact center of the elevator, there would be a margin of substantially one foot between either end and the edge of the elevator. There was a clearance between the elevator and the floor of three-quarters of an inch.
    The elevator was operated by a man on the fifth floor at the top of the shaft. Plaintiff testified that he rang for the elevator, and as soon as it reached the second floor, wheeled his truck aboard and the elevator “went up right away.” Plaintiff testified that he gave no signal for the elevator to go up, whereas the operator testified to the contrary. By a slant outward of the back of the truck used on this occasion, the clearance was reduced. Such slant was testified by plaintiff’s witnesses to exceed four or five inches but not to be so much according to defendant’s witnesses.
    As it passed from the second to the third floor the top of the load struck a beam or joist, flush with and supporting the third floor. Had the load not projected more than three-quarters of an inch beyond the edge of the platform, it would have passed in safety. The boxes were knocked off against plaintiff, causing him to fall from the elevator to the bottom of the shaft, a distance of about twenty-five feet.
    Plaintiff’s declaration consisted of four original and five additional counts. The court instructed the jury to find for defendant on all except the first original and second additional counts. The first original count after setting out matters of .inducement that defendant was a laborer engaged in transporting boxes from designated places and on an elevator by means of a hand truck, etc., charged defendant’s duty to furnish plaintiff with a reasonably safe place in which to work, a disregard of that duty, an order and command for plaintiff to put an unusually large number of boxes on the truck and compliance with such order; that he was unable to see over the top of them, was ordered to convey the truck by means of said elevator to an upper floor, in obedience to which he so conveyed the truck; that by reason of the height of the boxes he was unable to observe accurately the position of the truck, and thereby the place where he was required to stand, while being moved upwards, became unsafe which was well known to the defendant but not to the plaintiff.
    A. R. Urion and A. F. Reichmann, for appellant.
    John W. Sutton, for appellee.

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

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Masteb and seevant, § 687 -—when evidence sufficient to sustain finding that master negligent in failing to guard elevator platform. In an action for personal injuries where the first count in a declaration charged negligence in the failure to construct walls or other protection around an elevator in the canning department of defendant’s -packing house, and there was proof that such elevator was open at both ends and used by foreigners, acting as common laborers in elevating trucks, which, when placed on the platform of such elevator left very narrow margin thereon, and it appeared that the truck of plaintiff at the time of the accident was loaded with piles of boxes so high that the trucker could not see over the top, and the boxes, which projected slightly over the platform, struck a joist supporting an upper floor, fell off, and knocked plaintiff off the elevator, evidence held sufficient to sustain a.finding that the failure to inclose the platform of the elevator constituted negligence.

2. Masteb and seevant, § 156*-—what constitutes negligence in failing to guard platform of elevator. What is usually done is not the standard for determining the question of negligence or ordinary care with reference to the failure of an employer to protect the platform of an elevator used by its servants with an inclosure.

3. Appeal and ebbob, § 1520*—when refusal to give peremptory instructions in reference to some of counts in declaration, not reversible error. If there is evidence sufficient to sustain the action laid in any one of three counts in a declaration, the refusal to give peremptory instructions with reference to the other two, even if erroneous, is not reversible error.

4. Masteb and seevant, § 562*—when proof of single count sufficient. In an action for personal injuries sustained by a trucker while engaged in taking a truck of boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes striking against a beam in the elevator shaft as the car ascended, falling off, and knocking plaintiff to the bottom of the shaft, it is immaterial that the court failed to give a formal instruction to find the defendant not guilty on a certain count, on the ground that there was no evidence to show that the elevator operator was negligent as alleged in such count, where there is evidence to sustain other counts in the declaration.

5. Appeal and ebbob, § 1628*—when error in refusing to direct verdict as to particular count cured. In an action by a servant for personal injuries sustained while in performance of his duties in taking a truck of boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes catching against a beam in the shaft, as the car ascended, falling off and knocking the plaintiff to the bottom of the shaft, it is immaterial that the court failed to give a peremptory instruction to find defendant not guilty on a particular count, alleging that the injury was due to the negligence of the operator of the elevator because they were fellow-servants, where the court specifically instructed the jury that the plaintiff and elevator operator were fellow-servants, and that no recovery could be had on account of the negligence, if any, of the latter.

-6. Master and servant, § 773 —when question whether elevator unsafe place to work, for jury. In an action by a servant for personal injuries sustained, while in performance of his duties in taking a truck of boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes catching against a beam in- the shaft, falling off, and knocking plaintiff to the bottom of the shaft, held that there was ample evidence to justify the court in submitting the issue raised by the first additional count of plaintiff’s declaration to the jury, such count having reference to facts which rendered unsafe the place where plaintiff worked and defendant’s knowledge thereof, and the question whether such facts together with all the other facts in evidence rendered the place unsafe, and defendant’s knowledge thereof, were properly submitted to the jury.

7. Master and servant, § 312*—when servant assumes risks of employment. The servant assumes not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent, and if he voluntarily enters into or continues in the service, knowing, or having the means of knowing, its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury.

8. Master and servant, § 739*—when question of assumption of risk for jury. The question whether the servant has assumed the danger which he encounters ordinarily is one of fact, but the question will become one of law when but one conclusion can be drawn from the evidence by all reasonable minds.

9. Master and servant, § 751*—when 'question of contributory negligence of servant for jury. While the question whether a servant has been guilty of contributory negligence is ordinarily one of fact, it will become one of law when but one conclusion can be drawn from the evidence by all reasonable minds.

10. Master and servant, § 698*—-when evidence insufficient to establish assumption of risk attendant on use of defective elevator. In an action for damages for personal injuries sustained by a trucker while engaged in taking a truck of empty boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes striking against a beam in the elevator shaft as the car ascended, falling off, and knocking plaintiff to the bottom of the shaft, held that the manifest weight of the evidence does not show that the hazard causing his accident was or should have been known to the plaintiff in view of circumstances that he was a common laborer at the bottom of the industrial scale, and that His regular work was that of trucking full boxes which were only piled two or two and one-half feet high upon his" truck, while there was evidence that plaintiff at the time of the accident trucked a load so high that he could not see over the top of it, and there was a conflict in the evidence as to whether plaintiff had ever trucked a load of empty boxes previously.

11. Master and servant, § 699 —when evidence insufficient to establish contributory negligence of servant using elevator. In an action for damages for personal injuries sustained by a trucker while engaged in taking a truck of empty boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes striking against a beam in the elevator shaft as the car ascended, falling off, and knocking plaintiff to the bottom of the shaft, evidence held insufficient to establish that plaintiff did not exercise all the care which his circumstances at and before the accident allowed.

12. Appear and error, § 1410*—when verdict not disturbed as against weight of evidence. Where questions of fact are passed upon by a jury properly and fully instructed as to the law, and a motion for a new trial is considered and refused by the trial court, the verdict will not be disturbed as against the weight of evidence on appeal, unless it is clearly so on some essential issue involved.