text:
    Charles A. Butler, Appellant, v. George Kirby and Helena C. Kirby, Appellees.
    Gen. No. 19,789.
    (Not to be reported in full.)
    Appeal form the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Bill by Charles A. Butler against George Kirby, Helena C. Kirby (wife of George Kirby) and William Muhlenfeld to set aside a conveyance. The bill alleged, inter alia, that on November 13, 1912, Butler recovered a judgment in the Municipal Court of Chicag'o against said George Kirby in the sum of $1,598.59, upon which execution was issued and returned unsatisfied; that previous to the rendition of said judgment George Kirby was the owner of an undivided one-half interest, as joint tenant with said Helena C. Kirby, in certain premises in Cook county; that on February 2, 1912, previous to the rendition of said judgment but after the indebtedness upon which the same was rendered had accrued, Helena C. Kirby and George Kirby, with the intention of defrauding complainant and other creditors of George Kirby out of their just demands, conveyed said premises to said William Muhlenfeld for the consideration of $10, and that on the same day said Muhlenfeld conveyed the premises for a like consideration to said Helena C. Kirby. ‘ The bill prayed, inter alia, that as to the complainant said conveyances be set aside and declared null and void. The defendants, George Kirby and Helena C. Kirby, filed their joint and several answer, denying that complainant was entitled to the relief sought, and subsequently the case was heard by the chancellor in open court, resulting in the entry of a decree dismissing the bill for want of equity, from which decree this appeal is prosecuted.
    Abstract of the Decision.
    FsAtrDTrLENT conveyances, § 270

      —when evidence insufficient to show. On bill to set aside a conveyance between husband and wife on the ground that it 'was executed to defraud complainant and other creditors of the husband, evidence held insufficient to show such fraud, it appearing that the conveyance was made more than nine months before complainant recovered a judgment against the husband, and that the wife did not know of her husband’s indebtedness to complainant until after the conveyance, and it also appearing that the premises were purchased with the wife’s money.
    It appears that on January 4, 1911, the defendant Helena C. Kirby (then Helena C. Adamick) was married to said defendant George Kirby; that at the time of said marriage she was the owner in her own right of cash and securities of the value of more than $10,-000; that in May, 1911, she purchased the premises in question, paying therefor with her own money the sum of $6,000 in cash and assuming an existing mortgage thereon of $10,000; that at the earnest solicitation of George Kirby the deed to said premises was made to Helena C. Kirby and George Kirby, as joint tenants; that on February 2, 1912, Helena C. Kirby insisted that, as the property belonged to her, she be given the exclusive legal title therein, and that on said date the deeds to Muhlenfeld and from Muhlenfeld to her were executed and recorded.
    Charles A. Butler, for appellant; Franklin Baber, of counsel.
    George E. Swartz, for appellees.

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

   Mr. Justice Gridley

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Henry Friedman, Appellee, v. Northwestern Terra Cotta Company, Appellant.
    Gen. No. 19, 829.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adeloe J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 6,1914.
    Statement of the Case.
    Action by Henry Friedman against Northwestern Terra Cotta Company, a corporation, to recover a sum alleged to be dne to the plaintiff as commissions upon sales of terra cotta products made by him while in the employ of defendant. From a judgment entered on a verdict in favor of plaintiff for $36,536.14, defendant appeals.
    The facts showed that plaintiff had been in defendant’s employ for many years and was engaged at a salary of $5;000 per year during 1910 and 1911; that in the year 1910, after plaintiff had requested that he be made a stockholder and officer of the company, the vice-president in reply did not make any definite promise as to plaintiff’s request, but said at the end of the year he would pay to plaintiff and others, as a bonus, a “percentage of the profits” of the business, if any. It appeared that plaintiff was not informed what the percentage was, but at the end of the year 1910 plaintiff was paid $4,198.24. Plaintiff continued in his employment until January 15,1912, when he resigned. Later plaintiff made a request for his percentage for the year 1911 and received a check for $302.86. Plaintiff sought to find out how the percentage was figured but the vice-president refused to tell him. Plaintiff then employed an attorney who, under plaintiff’s express direction and authority, wrote to the vice-president a letter as follows:

      Abstract of the Decision.
    Master and servant, § 82

      —admissibility of letter written at direction of employee in suit for compensation. In an action to recover a certain commission on sales made of defendant’s products by plaintiff while in defendant’s employment on a salary, where the real issue was whether the defendant verbally agreed to give plaintiff in addition to his salary a certain “commission” on sales made by him, or a “percentage of the profits” of the business, as a bonus, a letter written by the attorney of plaintiff at the latter’s direction to the defendant and offered in evidence to impeach plaintiff’s testimony to the effect that the agreement was to give a certain commission on sales, held not to contain an offer to compromise so as to render it inadmissible, and its rejection held prejudicial error.

      “Mr. Henry Friedman has called on me in relation to a claim for bonus promised him on contracts closed by him for your company during the year 1911. It is Mr. Friedman’s contention that although a bonus was promised him based on earnings on contracts secured by him, that after he resigned his connection with your company that you advised him that the company had made no money during 1911, and consequently a very nominal bonus was paid. During the year 1910 when Mr. Friedman succeeded in closing only a few contracts a considerable bonus was paid to him, and consequently he continued during 1911 with your company and redoubled his efforts, anticipating a fair remuneration for the same. Tour president, Mr. Hettinger, also held out hopes to Mr. Friedman that he would be more closely associated with your company in an official capacity and would be liberally rewarded at the end of the year on certain good contracts closed in which Mr. Friedman succeeded in obtaining preference and by helping to eliminate from this field certain other contracting companies.
    “Is it not possible to amicably adjust this matter without filing a bill in chancery to compel an accounting? Kindly advise me.
    Tours very truly,
    Geo. D. Wellington.”
    Hugh L. Burnham, for appellant.
    George D. Wellington and Rockhold & Busch, for appellee; Francis X. Busch, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Frederick W. Job and Dudley Taylor, Appellees, v. Henry M. Wallace, Appellant.
    Gen. No. 19,838.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Action by Frederick W. Job and Dudley Taylor against Henry M. Wallace to recover a certain sum claimed to be due on a written contract for attorneys’ fees. The case was tried before a jury who returned a verdict in favor of plaintiffs for $1,600. The court required a remittitur of $125 and entered judgment for $1,475. To reverse the judgment, defendant appeals.
    Paul M. O’Donnell, for appellant.
    Ira C. Wood, for appellees.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Attorney and client, § 185 —sufficiency of evidence. In an action by attorneys upon a written contract to recover attorneys’ fees, evidence held insufficient to show that plaintiffs repudiated their contract, or that the contract sued on had for its consideration the agreement of plaintiffs to commence groundless suits on behalf of defendant.

2. Municipal Court op Chicago, § 17*—when oral charge to jury not misleading. In an action on a written contract for services, the giving of an oral instruction telling the jury that the terms of a written contract cannot be changed by oral evidence, held not misleading where both parties testified fully as to the conversations had prior to signing the contract, and no specific objection was made to the charge at the time.

3. Municipal Court op Chicago, § 17*—when giving of oral charge to jury not error. The giving of an oral charge to the jury that if they find for the plaintiffs they should find plaintiffs’ damages at a certain sum together with interest, held not error in view of the pleadings and the evidence, the suit being upon a specific contract and no attempt made to recover upon a quantum meruit.

4. Municipal Court op Chicago, § 17*—rohen offered written instructions may he refused. Where a judge of the Municipal Court elects to instruct the jury orally, he may refuse to give offered written instructions.


text:
    Charles M. Hovey, Appellee, v. D. A. Matteson, Appellant.
    Gen. No. 19,852.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed October 6, 1914.
    Statement of the Case.
    Action by Charles M. Hovey against D. A. Matteson to recover commissions claimed to be due plaintiff as a licensed real estate broker for procuring an exchange of defendant’s fifteen-flat building for another flat building. From a judgment entered on a verdict in favor of plaintiff for $1,193, defendant appeals.
    Abstract of the Decision.
    1. Brokers, § 51

      —when broker not procuring cause of exchange of real estate. In an action for brokerage commissions for procuring an exchange of real estate, evidence held insufficient to show that plaintiff was the procuring cause in bringing about the agreement for the exchange, it appearing that the defendant had listed his property with plaintiff and another real estate broker and that the latter broker first directed the attention of the defendant to property listed with him for exchange and brought about an agreement for the exchange, and there being no evidence to show that defendant did not remain neutral as between plaintiff and the other broker, or that defendant was guilty of any wrong to plaintiff.

      Plaintiff’s statement of claim alleged, in substance, that the defendant “listed” said building with plaintiff and “agreed thereby to pay the customary commission” in case plaintiff found a customer; that such customary commission is two and one-half per cent.; that plaintiff found a customer, one Emanuel Leavitt, who purchased the property at the price of $47,500, and that, therefore, plaintiff claimed a commission of two and one-half per cent, on the amount of the property sold for. In defendant’s affidavit of merits it was alleged, in substance, that plaintiff did not procure said Leavitt as a customer for defendant’s building; that said building was exchanged for another building owned by said Leavitt, which latter building was of a value much less than $47,500; that another real estate broker, named Gripp, was the procuring cause of such exchange, and that plaintiff at the time was acting as a broker for said Leavitt.
    R. D. Matteson, for appellant; D. S. Wegg, of counsel.
    George H. Mason, for appellee; Fred B. Hovey, of counsel.

       See Illinois Notes Digest, Veis. 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 Gridley

delivered the opinion of the court.

2. Brokers, § 84 —admissibility of evidence. In an action for brokerage commissions for procuring an exchange of real estate owned by defendant, where it appeared that another broker with whom the property was also listed, consummated the exchange, held that a carbon copy of a letter written by plaintiff to defendant after the exchange had been consummated, in which he stated a history of the dealings and relations of the parties and expressed surprise at the “clandestine" manner in which the negotiations had been carried on, etc., was a self-serving document and apparently written in preparation of making a claim against defendant for commissions, and held that its admission in evidence on behalf of plaintiff tended to prejudice the jury in favor of plaintiff.

3. Brokers, § 99*—when instruction on amount of compensation erroneous. In an action in the Municipal Court for commissions in procuring an exchange of real estate for defendant, where there was no special agreement as to the rate of the commissions, the giving of an oral charge to the jury in which they were told that if they found the issues for plaintiff their verdict must be for a certain sum, which was computed at a certain rate on the trade value, held error where there was testimony that the rate used in computing the sum was the customary charge, but where there was no testimony of the custom on what that rate was figured, whether on the actual or trade value, and where there was testimony as to the custom, whether said rate was figured on the value of the property less the mortgage or not


text:
    Abraham Lorenze, Appellant, v. Four Wheel Drive Auto Company, Appellee.
    Gen. No. 19,864.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.

      Abstract of the Decision.
    Brokers, § 88

      —when evidence insufficient to show liability of principal to pay commissions to subagent. In an action against a corporation to recover commissions for selling defendant’s capital stock, where the facts showed that defendant had entered into a written agreement with its president giving him exclusive right to sell such stock at a certain commission on certain conditions, and that the president had entered into an agreement with plaintiff giving the exclusive right to sell a portion of the stock in certain territory subject to the president’s agreement with the corporation, and there was testimony, which was contradicted, that plaintiff subsequently entered into a verbal agreement with the president and treasurer of the defendant whereby plaintiff was to make sales on behalf of the defendant Company, held that a finding and judgment in favor of defendant was sustained by the evidence, it not appearing that the agreement between the president and the defendant had been cancelled, and it not sufficiently appearing that plaintiff made a verbal agreement with defendant whereby the latter was to pay him commissions on stock sold by him, or that defendant by its acts at any time recognized that it had contractual relations with plaintiff.

      Statement of the Case.
    Attachment suit commenced in the Municipal Court of Chicago by Abraham Lorenze against Four Wheel Drive Auto Company, a corporation, having its principal office in Olintonville, Wisconsin, to recover commissions alleged in plaintiff’s statement of claim to be due him for selling one hundred shares of defendant’s corporate stock. The defendant entered its general appearance and filed an affidavit of merits stating that it was not indebted to plaintiff in any sum whatever, that plaintiff did not make a sale of said shares of stock on behalf of defendant, and that defendant never had any contractual relations with plaintiff as to the sale of said stock. The case was tried before the court without a jury, resulting in a finding and judgment for defendant. To reverse the judgment, plaintiff appeals.
    Morton A. Mergentheim, for appellant; Myer Linker, of counsel.
    Culver, Andrews & King, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Helen Neenan, Appellee, v. National Council of the Knights and Ladies of Security, Appellant.
    Gen. No. 19,874.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed October 6, 1914.
    Rehearing denied November 4, 1914.
    Statement of the Case,
    Action by Helen Neenan against National Council of the Knights and Ladies of Security to recover in- ■ surance alleged to be due plaintiff as beneficiary on a certificate issued to plaintiff’s husband. From a judgment for plaintiff for $920, defendant appeals.
    In plaintiff’s declaration, which consisted of one count, it was alleged, in substance, that on September 3, 1908, the defendant admitted Jeremiah Neenan to membership in the local council, No. 741, of the Order, located in Chicago, and issued to him' a beneficiary certificate, duly signed by the officers of the national council of the defendant society, and duly signed by said Neenan “for the purpose of accepting the conditions of said certificate”; that defendant by said certificate promised to pay plaintiff, wife of said Nee-nan, upon his death the sum of $1,000, upon the terms and conditions in said certificate mentioned; that said Neenan died on October 7, 1909, at Chicago, while in good standing in said Order; that he during his lifetime, and plaintiff at all times since his death, complied with all the requirements of the certificate and the laws of the Order; that by means thereof defendant became liable to pay plaintiff the sum of $1000; and that defendant has refused to pay said sum or any part thereof, wherefore there is due to plaintiff the said sum, together with interest thereon, at five per cent, per annum, from August 12, 1910, etc. The beneficiary certificate was set out in haec verba in the declaration, and in one clause thereof it was provided that should said Neenan die within eighteen months of the delivery of the certificate the National Council should be liable for only eighty per cent, of said $1,000.
    The defendant filed a plea of the general issue and several special pleas, all of which, except the sixth, were withdrawn. This sixth plea, as amended, alleged in substance that the contract of membership between the defendant and said Jeremiah Neenan was composed of the certificate, application and by-laws of the defendant society; that it was provided in the by-laws that each member should pay one assessment each month on or before the last day of the month; and that if the member failed to pay said monthly assessment on or before the last day of said month said member should stand suspended without notice and all his rights forfeited under said certificate, but that he might reinstate himself at any time within sixty days from the date of said suspension by the payment of the current assessment and local council dues, and all arrearages of any kind, provided he be in good health; that by virtue of the contract between said Neenan and the defendant society there became due on August 1, 1909, a certain assessment from said Neenan, payable on or before the last day of said month of August, and that there became due on September 1, 1909, a certain assessment from said Neenan, payable on or before the last day of said month of September; that said August assessment was not paid during said month of August or during said month of September, and said September assessment was not paid during said month of September; that said Neenan became suspended on September 1,1909, and remained in suspension up to and including the time of his death, October 7, 1909, and was not a member of the defendant society in good standing at the date of his death, and that neither he, nor anyone in his behalf, while he was living and in good health, paid any assessment for the purpose of reinstating him; that on or about October 7, 1909, while said Neenan was in suspension and not in good health, assessments for the months of August, September and October, 1909, amounting to $4.50, were paid to the financier of said local council to which said Neenan belonged, and said payments were taken by said financier without Tcnowledge on his part, or that of any officer or agent of the Order, that said Neenan was not in good health; that thereafter, and immediately upon defendant learning that said Nee-nan was not in good health when said payments were made and before the beginning of this suit, said financier sent to plaintiff a check for the amount of said payments, which check has not been returned but has been retained by plaintiff, and which check has been at all times of the value of said payments.
    To this special plea the plaintiff filed a replication in which it was alleged, in substance, that said Neenan was a member of the defendant society in good standing, as provided for in said contract, up to and including the time of his death; that while living and in good health he paid all assessments due from him for the purpose of his reinstatement and which did reinstate him before he died; that on October 7, 1909, “while the said Neenan was in good health,” assessments for said months of August, September and October, amounting to $4.50, were paid to and taken by said financier and the latter did not return “to said Nee-nan” the amount paid by plaintiff.
    Abstract of the Decision.
    1. Insurance, § 746

      —contract of insurance in fraternal "beneficiary society. The constitution and by-laws, the application for membership and the benefit certificate constitute the contract of insurance in a fraternal beneficiary society.
    2. Insurance, § 741*—when by-law of benefit society self-executing. A by-law of a beneficiary society providing that a member who has not paid his assessments or dues on or before the last day of the month shall stand suspended without notice, etc., held self-executing and to cause a member who failed to comply with it to be ipso facto suspended and to forfeit all rights under his certificate.
    3. Insurance, § 807*—what not a reinstatement of a suspended member in a beneficiary society. Under a by-law of a benefit society which provides that any member suspended for nonpayment of dues and assessments may be reinstated by payment of all arrearages within sixty days from date of suspension, if he is in good health at the time of reinstatement, a suspended member is not reinstated by the beneficiary causing the arrearages to be paid to the financier of the local lodge while the member was in the last stages of a mortal illness, where the financier accepted such payment without any knowledge of the member’s illness, there being also a further provision in the by-law that the receipt and retention of assessments and dues, in case the suspended member is not in good health, shall not have the effect of reinstating him.
    A. W. Fulton, for appellant.
    Antoinette Funk and F. Philip Young, for appellee; Walter T. Stanton and Frank J. Core, of counsel.

      See Illinois Notes Digest, Voto. XI to XV, and Cumulative) Quarterly, game topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

4. Insurance, § 793*-—what not a waiver of prompt payments of dues and assessments. A private agreement between the beneficiary in the certificate of a member of a benefit society and the financier of the local lodge whereby the financier agreed to advance the assessments and dues for one month or more in ease they were not paid by the member or the beneficiary held not to disclose any waiver on the part of the society with reference to the prompt payment of dues and assessments, for the reason it was not shown to have been known by the member or the principal lodge and that the agreement was beyond the scope of the authority of the financier to make.

5. Insurance, § 786*—when evidence of custom to extend leniency in payment of dues and assessments incompetent. In an action against a benefit society to recover insurance where the defense was that the member had by virtue of a by-law been ipso facto suspended for failure to make prompt payment of monthly assessments, evidence offered to show that leniency had been extended customarily by the local lodge to certain members thereof as to the payment of assessments held incompetent.


author: Mr. Justice Gridlet

text:
    Lawrence Doherty, Appellee, v. Western United Gas & Electric Company, Appellant.
    Gen. No. 19,887.
    1. Master and servant, § 98

      —what not a “workshop” within meaning of Factory Act. A pit or manhole in a street constructed; and used by a gas company and located about two miles from its gas plant, held not to be a “workshop” within the meaning of section 12 of the Factory Act of 1909, J. & A. 5397, providing that workshops shall be kept free from gas, etc., it appearing that a gas main passed through the pit, that in the pit there were two valves on the gas main, a governor controlling the pressure of gas and indicators to register the pressure, and that the gas which passed through the main was the finished product.
    2. Evidence, § 399*—when opinion of expert improper as being . on an ultimate fact. In an action by an employee to recover for personal injuries- caused by inhaling gas which it was alleged defendant allowed to escape in a manhole, 'permitting an expert witness in answer to a hypothetical question to, in effect, give his opinion that plaintiff’s unconsciousness was caused by inhaling the gas, held error for the reason that it, in effect, allowed him to give his opinion as to an ultimate fact, which was a question for the jury, it appearing that defendant pleaded the general issue to plaintiff’s declaration and at the trial made no admission of •plaintiff’s injury, but denied that plaintiff inhaled gas at the manhole.
    Appeal from the Circuit Court of Cook county; the Hon. Habry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 6, 1914.
    Rehearing denied October 17, 1914.
    Statement by the Court. This is an appeal from a judgment for $7,500 rendered by the Circuit Court of Cook county in favor of Lawrence Doherty, plaintiff, in. an action for damages for personal injuries.
    The defendant corporation was in the business of manufacturing and selling illuminating gas. At the intersection of Brainard and Ogden avenues in La Grange, Illinois, and about two miles from its manufacturing plant, defendant maintained and operated a governor pit, or manhole, in the street, five feet deep and five feet square. Running through this pit, or underground compartment, was a gas main, on which were two valves and a governor which controlled the gas pressure, and in the pit were two indicators which registered the gas pressure on charts. The walls of the pit were made of brick covered with cement and the roof and floor were of concrete. The opening into the pit was about two feet square, covered with a heavy, unperforated, iron manhole cover.
    Plaintiff on the day of the accident, June 15, 1910, was nearly nineteen years of age, and had been employed by defendant for about three years. For the first two years he called at houses and read gas meters. For more than a year prior to the accident he worked as a gas fitter, repairing leaks and attending to “trouble tickets,” and during this time it was his duty to go down into said governor pit every morning and evening and regulate the gas pressure, change certain charts and ink the pens used to record the pressure of the gas. He was the only employee of defendant who went there regularly.
    Plaintiff testified that about 5:30 A. M., on the day mentioned, he rode to the pit on his bicycle, lifted off the manhole cover, noticed the odor of illuminating gas coming from the pit, waited about two minutes “to ventilate the place” as he always did, and then went into the pit to attend to his duties; that after being there about three minutes he felt “a singing in the ears and getting weak in the knees” and he came out, staggered a little, walked to the curb and in the park for a few minutes, and then returned" and put back the heavy manhole cover; that then he walked for a short distance leading his bicycle, then mounted the bicycle and rode to the Stone avenue railroad station some distance away; that upon arriving at the station he felt nauseated and sat down upon a bench; that then he delivered a newspaper at a house about three hundred feet away, as was his custom every morning, and then returned to the station and again sat down because his sickness kept increasing; that then he started for home, walked a few steps, fell, and that was the last he remembered until several days thereafter. He was found by John McKay, a newsboy, and Walter McG-arry, lying at the foot of a flight of concrete steps, running into the basement of the station, down which he had apparently fallen. He was picked up insensible and taken to his home, where an examination revealed a contusion on his head and bruises on his body. He remained in an unconscious state for three days, succeeded by severe convulsions which gradually subsided. In about three weeks he was able to leave the house and he took a lake trip at his physician’s suggestion. He returned to work for defendant some time in August, 1910, and continued in its employ until about February 1,1911, when he went to work for the Pullman Company. In the fall of 1912 he entered the University of Illinois, and continued his studies there until the time of the trial.
    Plaintiff’s witness, John McKay, the newsboy, testified to the effect that each morning he was accustomed to “run a race” with the plaintiff to see which one would deliver a newspaper and return to the station first, and that shortly before the witness found plaintiff lying at the foot of said steps on the morning mentioned he had run his usual race with plaintiff. Plaintiff’s witness, Walter McG-arry, testified that at the time he assisted in picking up plaintiff from the foot of said steps there was a “kind of driveling on the mouth, something like frothing.” Plaintiff further testified that prior to June 15, 1910, he never had had any fainting or dizzy spells, but that on several different occasions afterwards he had such spells, following violent exercise, and that his elder brother had died of epilepsy in 1905.
    The testimony of several of plaintiff’s witnesses tended to show that he was not as bright mentally as before the accident, and that he had great difficulty in the control of his speech, while formerly he was ready of speech. One of the medical experts, called by plaintiff, expressed the opinion that plaintiff had a brain injury, that he would probably lose mental power as he grew older and that he might ultimately become insane.
    On direct examination plaintiff testified that on the morning mentioned gas was leaking into the pit because one of the valves was not tight. On cross-examination he testified that he did not know that there was a leak at that particular time, but that because he smelled gas he assumed there was a leak; that he knew that gas was dangerous and that if he inhaled enough it would “knock him out.”

      The theory of plaintiff’s case was that his loss of consciousness and fall, Ms subsequent convulsions, dizzy spells, weakening of mental powers, etc., were the result of his having inhaled illuminating gas, because of the negligence of defendant, during the few minutes he was in the pit on the morning mentioned. Testimony of two medical experts was introduced in support of this theory.
    Plamtiff’s declaration consisted of eleven counts. Seven counts were based upon the alleged violation of the common-law duty of defendant to furnish plaintiff a safe place to work, and to warn plaintiff. Four counts alleged that the pit or manhole was a “workshop” within the meaning of the act, commonly known as the “Factory Act,” and entitled “An Act to provide for the health, safety and comfort of employes of factories, mercantile establishments, mills and workshops in this State, and to provide for the enforcement thereof,” approved June 4,1909, and said counts were based upon the alleged violation of section 12 of that Act. (J. & A. U 5397.) To all counts defendant pleaded the general issue. In section 29 of the Act (Hurd’s St. 1909, eh. 48, par. 117, J. & A. 5414) it is stated:
    “The term ‘mill or workshop’ shall include any premises, room or apartment not being a factory as above defined, wherein any labor is exercised by way of trade or for the purpose of gain in or incidental to any process of making, altering, preparing, cleaning, repairing, ornamenting, finishing or adapting for sale any article or part of any article, and to which or over which building, premises, room or apartment, the employer of the person employed or working therein has the right of access or control; * * *”
    Section 12 of the Act (J. & A. If 5397), which it was alleged that defendant had violated, is as follows:
    “All factories, mercantile establishments, mills or workshops shall be kept free from any gas or effluvia arising from any sewer, drain, privy or other nuisance on the premises. All poisonous or noxious fumes or gases arising from any process, and all dust of a character injurious to the health of the persons employed, which is created in the course of a manufacturing process, within such factory, mill or workshop, shall be removed, as far as practicable, by either ventilating or exhaust devices.”
    Plaintiff’s evidence tended to prove that illuminating gas was a poisonous or noxious gas, and that it was practicable to remove such gas from the pit or manhole by means of ventilating or exhaust devices.
    The various defenses urged at the trial were, in substance, that there was no gas escaping in the pit on the morning mentioned; that the defendant was not guilty of any negligence; that if plaintiff was injured by inhaling gas in said pit, as alleged, he assumed the risk or was guilty of such contributory negligence as barred a recovery; and that plaintiff’s unconsciousness and fall at the railroad station, his subsequent convulsions, dizzy spells, weakening of mental powers, etc., were not the result of any inhalation of gas, as alleged, but of an epileptic fit. There was testimony tending to support these defenses. The defendant further contended at the trial that the pit or manhole was not a “workshop” within the meaning of said “Factory Act,” and that even if a poisonous or noxious gas was arising on the morning mentioned in said pit or manhole, which was about two miles from defendant’s plant, it was not a gas arising from any process, or created in the course of a manufacturing process within such workshop.
    At the conclusion of plaintiff’s evidence the defendant moved for a directed verdict in its favor, but the motion was denied. The defendant thereupon moved that the court instruct the jury to find the defendant not guilty on each of the four counts based upon said act, but the motions were severally denied. All of these motions were renewed at the close of all the -evidence and again denied. Among the refused instructions offered by the defendant was one to the effect that there could be no recovery upon the ground that defendant had failed to comply with said “Factory Act,” and another to the effect that the provisions of section 12 of said Act did not apply to the pit or manhole in question. The jury returned a verdict finding the defendant guilty and assessing plaintiff’s damages at $7,500, upon which verdict the judgment appealed from was entered.
    Kraus, Alschuler & Holden and Alschuler, Putnam & James, for appellant.
    Albert L. Hopkins and S. W. Gehr, for appellee.

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

   Mr. Justice Gridlet

delivered the opinion of the court.

Many points are urged by counsel for defendant as reasons for the reversal of the judgment. We shall consider two.

It is contended that the trial court erred in holding, in effect, that plaintiff could recover on each of said four counts based upon the alleged violation by defendant of section 12 of said “Factory Act.” After careful consideration, we are of the opinion that the court erred in so holding and in refusing to instruct the jury, on defendant’s motion, to find the defendant not guilty on each of said counts. We think that the pit or manhole was not a “workshop” within the meaning of said act. The evidence shows that defendant’s manufactured product, i. e., illuminating gas, left its gas plant, which was about two miles from said pit or manhole, as a finished product. Nothing further remained to be done in “making, altering, preparing, cleaning, repairing, ornamenting, finishing or adapting for sale” said product. It appears that in the manhole there were two valves on a gas main, a governor controlling the pressure of the gas, and indicators to register that pressure, and that plaintiff’s duties were to visit the manhole twice a day, turn a valve, change certain charts and ink certain pens. Neither plaintiff nor any one else performed any labor in the manhole upon the product itself. The manhole was a part of defendant’s system of distributing its product to its customers. And we think the word “workshop,” as used in said act, means the place where the work of making, altering, etc., is done upon the product. In 40 Cyc. 2862, the term “Workshop” is defined as “a shop where any manufacture or handiwork is carried on, whether for the purpose of repair or manufacture. In 7 Words & Phrases, 6494, it is stated that a shop “is understood to be a building in which an artisan carries on his business, or laborers, workmen, or mechanics, by the use of tools or machinery, manufacture, alter or repair articles of trade.” In Spacey v. Dowlais Gas and Coke Co., 75 L. J. K. B. (N. S.) 5, it was held that a gas main used to supply gas to the consumers was not a part of the company’s factory. Furthermore, even if the manhole in question could be construed to be a “workshop” within the meaning of said act, the proof does not disclose that defendant violated the provision of section 12 of the Act, as alleged in said counts. The first clause of that section provides that “all factories, * * * mills or workshops, shall be kept free from any gas or effluvia arising from any sewer, drain, privy or other nuisance on the premises.” There was no evidence that any gas arose from any “sewer, drain, privy or other nuisance on the premises.” The second clause of the section provides that “all poisonous or noxious fumes or gases arising from any process, * * * which is created in the course of a manufacturing process, within such factory, mill or workshop, shall be removed, as far as practicable, by either ventilating or exhaust devices.” While there was evidence tending to show that it was practicable to remove gas from said manhole by ventilating or exhaust devices, and that there were no such devices there installed, there was no evidence tending to show that there were any fumes or gases arising in the manhole on the morning mentioned, “from any process, * * * which is created, in the course of a manufacturing process, within such factory, mill or workshop. ’ ’

It is further contended by counsel for the defendant that the trial court erred in allowing one of plaintiff’s expert witnesses, Dr. Leipold, in answer to a hypothetical question, objected to by defendant, to testify practically to the effect that in his opinion plaintiff’s unconsciousness at said railroad station was caused by poisoning from illuminating gas. To plaintiff’s declaration the defendant pleaded the general issue. At the trial there was no admission of an injury to plaintiff, and defendant denied that plaintiff had inhaled illuminating gas at the manhole. We think that the court erred in allowing the witness to, in effect, give his opinion as to an ultimate fact which was to be determined by the jury from all the evidence. Schlauder v. Chicago & S. Traction Co., 253 Ill. 154, 160; Keefe v. Armour & Co., 258 Ill. 28, 33.

For the reasons indicated the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Smith

text:
    Elizabeth Stanton, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,331.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 6, 1914.

      Statement of the Case.
    Action by Elizabeth Stanton against Chicago City Bailway Company to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The declaration contained one count, and alleged that while the plaintiff was entering a street car owned and operated by the defendant in the city of Chicago, and before the plaintiff was able to get securely upon the platform of the car, the defendant, through its servants in charge of the operation and management of the car, negligently started the car forward without notice or warning to her, and with unusual force and violence, so that the plaintiff was thereby thrown from the car to and upon the ground and injured. From a judgment in favor of plaintiff for sixty-five hundred dollars, defendant appeals.
    The defendant contends on the record that the verdict and judgment on the issue of liability are manifestly contrary to the preponderance of the evidence; that the damages are grossly excessive on any theory of the injury; that plaintiff’s counsel made many improper and incurably prejudicial statements on the trial; that the court erred in giving an improper instruction; and also erred in admitting incompetent evidence.
    Charles LeRoy Brown, for appellant; Leonard A. Busby, James G. Condon and Warner H. Robinson, of counsel.
    James C. McShane and Richard J. Finn, for appellee.

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

   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Appeai and bbbob, § 1514 —when conduct of counsel in accusing opposing party and counsel of improper motives reversible error. Misconduct of counsel throughout the trial and in suggesting improper motives to the opposing party and counsel and in making accusations that they were guilty of deception and other dishonorable methods, when there is no basis in the proceedings or the evidence to warrant such insinuations or accusations, held reversible error.

2. Cabbiebs, § 482*—sufficiency of instruction. In an action against a street railway company to recover for personal injuries alleged to have been caused by the negligence of the defendant in suddenly starting its car when plaintiff was boarding it, an instruction given for plaintiff which told the jury: “If under the evidence and instructions of the court, you find that the defendant is legally liable for and on account of plaintiff’s alleged fall from or in connection with the street car; and if you further find from the evidence that plaintiff sustained injury to her spine as a direct and proximate result of said fall; then, and in such event, you are instructed that even though plaintiff had tubercular germs in her blood at the time of said fall, yet, if you further believe from the evidence that as a natural and proximate result of said injury said tubercular germs lodged at the point of said injury, and thereby caused a diseased condition of her spine, and that such diseased condition of her spine would not have occurred except for said fall and injury, then the defendant is legally responsible for said diseased condition of her spine,” field objectionable as submitting to the jury a question of law, whether the defendant was liable, instead of submitting the question of fact, whether defendant was guilty of negligence in operating the car, but held not objectionable as authorizing a recovery for an aggravation of plaintiff’s diseased condition on the' ground that the declaration did not claim damages therefor.

3. Cabbiebs, § 472*—when opinion of expert inadmissible as being on an ultimate fact. In an action against a street railway company for personal injuries sustained by a plaintiff caused by a fall from a car when plaintiff was attempting to board it, permitting an expert witness to give an opinion whether the accident caused or produced plaintiff’s subsequent physical condition, held improper as permitting the witness to give an opinion on an ultimate fact, it appearing there was a dispute as to the manner of the injury and whether or not the fall was the cause of plaintiff’s subsequent condition.

4. Damages, § 115*—when recovery for personal injuries excessive. A verdict of sixty-five hundred dollars for personal injuries alleged to have resulted from a fall, held excessive where the only substantial injury claimed by plaintiff was that she suffered from Pott’s disease, or tubercular spondylitis, which did not seem to be supported by the evidence, and it appeared that plaintiff had substantially recovered.


text:
    Central Trust Company of Illinois, Defendant in Error, v. Louis S. Owsley, Executor, Plaintiff in Error. Impleaded with Inter Ocean Newspaper Company and George W. Hinman, Defendants. Louis S. Owsley, Executor, Plaintiff in Error, v. Central Trust Company of Illinois, Defendant in Error.
    Gen. No. 19,527.
    1. Stipulations, § 20

      —when waives objection to jurisdiction. A stipulation between the parties held to preclude all questions as to the jurisdiction of a court of equity to settle the controversy, and to waive any possible objection which could have been made originally that there was an adequate remedy at law.
    2. Abatement and revival, § 41*—what not a similar action pending. A petition filed in the Probate Court asking for instructions as to whether a custodian should comply with a demand of the executor to tender back money paid on disputed bond coupons held by it and whether the custodian should demand a return of the coupons, held not a similar proceeding pending which would constitute a bar to suit filed in equity for instructions with respect to declaring the principal of the bonds due.
    3. Abatement and revival, § 34*—method of raising objection of another action pending. Objection to the jurisdiction of the court on the ground there is a prior action pending can only be made by a plea in abatement.
    4. Mortgages, § 127*—duty of trustee as agent of parties. A trustee in a trust deed given to secure the payment of money is the agent of both parties thereto, and is bound to act fairly and justly towards the debtor as well as towards the creditor, and if the instructions or demands of one party require him to do an illegal or immoral act, he may violate such instructions with impunity.

      5. Mortgages, § 291

      —when failure of trustee to declare principal of bonds due on default in payment of interest not violation of duty. Where a trust company was made trustee in a trust deed to secure the payment of certain bonds, with a clause in the deed requiring the company upon demand of * majority of the owners of the bonds to declare the principal of the bonds due on default in the payment of interest coupons, and the company after a demand upon it to declare the bonds due received payment of the interest on the overdue coupons and surrendered the coupons to the mortgagor, held that the payment of the interest to the company was a valid payment and that the company did not violate its duty in failing to declare the principal of the bonds to be due, it appearing that the bonds and coupons were legally in the possession of the company with authority to demand the interest, which authority had never been withdrawn, and that the Probate Court had assumed and exercised jurisdiction over a majority of the bonds and had directed a sale thereof on the application of the executor of the owner thereof, and that the order of such court had fixed a status of the bonds which the executor could not change by demanding that the company declare the maturity thereof.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 6, 1914.
    Statement by the Court. This writ of error brings before the court for review a final decree entered. February 13, 1913, by the Circuit Court of Cook county.
    A bill of complaint was filed by the Central Trust Company of Illinois, as trustee under a trust deed executed by the Inter Ocean Newspaper Company, for instructions as to whether it should declare the principal of the bonds due on a written demand from L. S. Owsley, executor of the estate of Charles T. Terkes, owner of the majority of the bonds, after the necessary default on three sets of coupons, called the “disputed coupons,” alleging that as such trustee it is in doubt as to the right of the executor to make such demand by reason of (a) dealings and contracts between the executor and George W. Hinman, president of the Newspaper Company, as to a proposed sale of said bonds and coupons to him, and because of certain orders of the Probate Court; and (b) as to whether the Trust Company, which had possession of said bonds and coupons as custodian of the Yerkes estate by appointment from the Probate Court, rightfully received, subsequent to such written demand, the amount of said overdue coupons and surrendered them to the Newspaper Company.
    The bill was answered by the executor, Owsley, and a cross-bill was filed by the executor against the Trust Company to recover damages resulting from the refusal of the Trust Company to declare the principal of the bonds due and wrongfully surrendering the disputed coupons.
    Substantially all of the material facts of the case are undisputed and are set forth in the pleadings, in substance, as follows:
    The Trust Company was appointed custodian of the securities coming into the possession of the executor under an order of March 15, 1906, which provided that “no securities so deposited with the Trust Company should be withdrawn except by an order of the court and that no cash so deposited should be withdrawn except by an order of the court, or upon vouchers approved by the Trust Company.
    The Inter Ocean Company, on January 1, 1907, executed a trust deed or mortgage to the Trust Company to secure an issue of $600,000 bonds, of which $400,000 were the property of the executor, a copy of the trust deed or mortgage being attached to the bill; the $400,-000 bonds were deposited with the Trust Company as custodian under an order of the Probate Court of March 15, 1906; the coupons on these bonds due January 1, 1910, July 1, 1910, and January 1, 1911, were not paid when they became due; and at the request of the executor, on March 27, 1911, the Trust Company made due demand for the payment of the disputed coupons, and payment was refused.

      On April 1, 1911, an agreement was made between George W. Hinman, the executor and the Trust Company, as escrow agents, with respect to a proposed sale of the $400,000 bonds to Hinman. The agreement recited that Hinman had made an offer to the executor, dated March 14, 1911, to purchase the $400,000 bonds with all unpaid coupons for $200,000, $175,000 payable in cash within sixty days after an order had been entered by the Probate Court authorizing the executor to accept the bid, and $25,000 in a note for one year, properly secured upon certain conditions made in the offer. The agreement provided that Hinman should deposit with the Trust Company $20,000 as a guaranty that he would carry out the terms of the offer.
    June 8, 1911, the executor filed in the Probate Court a petition praying that he be authorized to sell the bonds to Hinman upon the terms of the offer; and on November 25, 1911, the Probate Court entered an order that bids should be invited for the purchase of the bonds to be received on or before December 27, 1911, and that if no better offer was received, the Hinman offer should be accepted. Subsequently, by agreement, the time was extended to January 18, 1912.
    On November 25, 1911, after the order of the Probate Court was entered on that date, the executor presented a written demand on the trustee to declare the principal of bonds due in accordance with the provisions of the trust deed, and especially article V, which provided that in case there was a six months’ default in the payment of the coupons after due demand “that the trustee * * * may and if thereunto requested in writing, by a holder of a majority in amount of the said bonds outstanding, shall by written notice to the Company declare the principal of all the bonds hereby secured then outstanding to be and the same shall thereupon become immediately due and payable.” The Trust Company thereupon advised the attorney of the executor, who presented the demand, that on account of the proposed absence of its vice-president, the matter could not be given attention until November 28, 1911, and that the attorney of the executor assented. On November 28, 1911, and before the trustee had secured the advice of its counsel as to its duty on the demand of the executor, the Inter Ocean Company paid in full the disputed coupons, the Trust Company delivered up the disputed coupons to the Inter Ocean Company and notified the executor. The executor repudiated the transaction, and claimed that the Trust Company held the coupons solely as custodian and had received the money and parted with the coupons without authority.
    On December 4, 1911, the executor having filed in the Probate Court his petition praying that the Trust Company be proceeded against as in contempt of court in violating the custodian’s order of March 15, 1906, by reason of its surrender of the disputed coupons, the trustee filed in the Probate Court its petition setting forth the facts and asking the direction of the Probate Court as to whether it should tender back the money so received and demand the return of the disputed coupons. At the hearing, December 29, 1911, the Probate Court declined to enter any order on either petition and continued the matter to January 9,1912; that the presiding judge then indicated that the Trust Company was not authorized to receive the money and surrender the disputed coupons, and entered an order requiring the Trust Company to deliver the disputed coupons to the executor oh or .before January 8, 1912, but made no adjudication as to whether the Trust Company was authorized to receive payment and surrender the disputed coupons.
    January 2,1912, the trustee tendered back the money to the Inter Ocean Company and demanded the return of the disputed coupons.
    After the executor had served the demand upon the trustee to have the principal of the bonds declared due, the trustee informed the Inter Ocean Company of the demand and that said Company then claimed that because of the dealings between the executor and George W. Hinman, who was the president of the Inter Ocean Company, neither the executor nor the trustee had the right to declare the principal of the bonds due and that said Company would be seriously damaged by such acts.
    After the entry of the custodian’s order of March 15, 1906, the Trust.Company had been in the habit, from time to time, of collecting interest coupons and similar securities without an order of court and with the acquiescence" of the executor; and the request of the executor to present the disputed coupons for payment March 27, 1911, was made without any order of court, or any claim that an order was necessary, and the authority then given by the executor had never been withdrawn unless the demand of November 25, 1911, amounted to such revocation or withdrawal.
    The executor.insists the bill avers that it is the duty of the trustee to declare the principal of the bonds due, and proposes, in case the trustee declares the principal of the bonds due, to make public advertisement of the fact to induce persons to bid in the Probate Court for the purchase of said bonds on the theory that the purchaser would thereby secure the right of either having the bonds paid in full or procure the sale of the properties and franchises of the Newspaper Company under the trust deed of January 1, 1907, and thereby he would realize a sum much greater than the Hinman offer, and that the executor threatens to hold the Trust Company liable in heavy damages; that the Inter Ocean Company and Hinman claim that by reason of the negotiations between the executor and Hinman, and the proceedings in the Probate Court, neither the executor nor the Trust Company had the right to declare the principal of the bonds due; and if the Trust Company declared the principal of the bonds due, the Inter Ocean Company would hold the trustee responsible for heavy damages; that the executor claimed that the Trust Company was without authority to receive payment of the disputed coupons and surrender them; that the Inter Ocean Company claimed that the Trust Company had such authority; that the executor had held out the Trust Company as possessing such a power, and that the payment of the disputed coupons cured the default; that under the mortgage the trustee was entitled to a bond of indemnity, and that the executor had refused to furnish such bond.
    The Trust Company, as trustee under the mortgage of January 1, 1907, was in doubt as to its duties and liabilities growing out of the matters set forth in its bill, and, particularly, whether even if the Inter Ocean Company had not tendered payment of the disputed coupons, in view of the proceedings in the Probate Court, and the negotiations between the executor and Hinman and the Inter Ocean Company, the trustee was legally entitled to declare the principal of the bonds due; as to whether the disputed coupons had in fact been paid; whether such payment operated to relieve the default; as to whether under all the circumstances it was the duty of the trustee to declare the principal of the bonds due; that in view of the claims of the respective parties, the Trust Company prayed “that this court may determine whether or not it, as trustee under said mortgage or deed of trust, dated January 1, 1907, is legally entitled to and should declare the principal of the said bonds to be due and payable, and may by its decree direct, advise and aid the complainant as such trustee in that respect, and for other and further relief.”
    The answer of the executor, Owsley, to the bill of complaint admits the material allegations of the bill of complaint and sets up the executor’s rights as he contended them to be, and avers that he filed in the Probate Court, on December 4, 1911, his petition to have the Trust Company adjudged guilty of contempt for parting with disputed coupons, and on January 27, 1912, the court found the Trust Company guilty of contempt of court and fined it in the sum of $200; that he had repudiated the transaction of the Trust Company in receiving the money and parting with the disputed coupons, and insisted that the trustee should perform its duty and declare the principal of the bonds due notwithstanding the wrongful surrender of the disputed coupons. The answer alleges that if the trustee had performed its duty, purchasers would have bid substantially par for bonds, and that by reason of the wrongful failure of the trustee to perform its duty, the Hinman offer was the best price procurable, and alleges that the executor had suffered large damages ■ and had filed his cross-bill of complaint to cover them.
    The executor filed a supplemental answer, stating that without prejudice to its rights set up in his answer, and under the cross-bill of complaint, on March 7, 1912, in accordance with the order of the Probate Court of January 19, 1912, the executor had sold to George W. Hinman all of the $400,000 Inter Ocean bonds with coupons maturing on and after July 1, 1911, and thereafter had no further interest therein, but retained his right and claim to compensation from the Trust Company for damages and to relief and remedy against it for its wrongful act as set forth in its answer and cross-bill, and denies that the Trust . Company is entitled to any relief under its bill of complaint.
    The joint and several answer of the Inter Ocean Company and George W. Hinman sets up the general facts as they appear in the bill and answer of the executor and sets out at length the correspondence, the orders of the court referred to, and that on January 29, 1912, the executor made a written tender to Hinman of the $400,000 Inter Ocean bonds with the July 1, 1911, and succeeding coupons, and demanded payment of the sum of $142,883.58, being the sum of $175,000 mentioned in the contract of April 1st, and the order of the Probate Court, less $32,116.42 paid for the disputed coupons, and that Hinman also deliver his note for $25,000 that subsequently the entire transaction was closed by Hinman paying $142,883.58 and delivery of his promissory note for $25,000, and otherwise carrying out the terms of his offer, and by the executor delivering the $400,000 Inter Ocean bonds with the coupons maturing on and after July 1, 1911, and otherwise complying with the terms of said offer; that the coupons which have since matured have been surrendered to the Inter Ocean Company and can-celled ; that the Trust Company has no right to declare the principal of the bonds due; that there are no matured coupons upon or pertaining to said bonds that have not been fully paid and surrendered to the News-' paper Company; that the final order of the Probate Court of January 19, 1912, confirming the nisi order of November 25, 1911, is conclusive upon the executor of the estate of Charles T. Yerkes, the Probate Court and all others, and that the executor is now precluded by such order and his acting thereon from raising the question of the payment of the disputed coupons.
    The cross-bill filed by the executor against the Central Trust Company sets out substantially the same facts as are set out by the executor in his answer to the original bill, and that it was to the best interests of the Yerkes estate that the demand upon the trustee to declare the principal of the bonds due should not be made until after the court had taken action upon the petition of the executor to have the principal of the bonds declared due in order to secure the best offer for said bonds; that the refusal of the trustee to declare the principal of the bonds due and the delivery of the disputed coupons by the Trust Company cast a cloud upon the title of the executor and prevented the executor from advertising that the principal of the bonds had been declared due so that prospective bidders might be informed that they could secure the rights, property and franchises of the Inter Ocean company and the right to publish the “Inter Ocean” through foreclosure proceedings; that had the trustee performed its duty the market value of the bonds would have been worth much more than the amount of the Hinman bid, to wit: substantially the sum of $400,000, by reason of the fact that the puchasers would have had the right to either have had the principal and interest of the bonds paid in full, or to have the trustee enter and take possession of the property of the Inter Ocean Company and control the publication of the “Inter Ocean,” or by foreclosure under the terms of the mortgage to have acquired such property and the right to publish the newspaper; that the failure to receive any bid on said bonds up to and inclusive of January 18, 1912, other than the Hinman offer, was caused by the wrongful acts of the trustee, and especially its failure to declare the principal of the bonds due,—in consequence of which wrongful acts the property in the bonds, which was reasonably worth $400,000, was sold for $200,000, and has refused to reimburse the executor, and prays for a decree that the Trust Company committed a breach of duty as trustee and damage to the executor, and for an accounting the payment by the Trust Company of the amount so found to be due the executor.
    The answer of the Central Trust Company to the cross-bill sets out the facts substantially as set out in the original bill of complaint; admits the receipt of the demand to declare the principal of the bonds due and its failure to make such declaration, and states that it received from the Inter Ocean Company the amount of the disputed coupons and surrendered the coupons, and alleges that promptly upon payment of said coupons one George M. Maher, who was the representative of said cross-complainant in all matters relating to said estate, was informed of the payment and the money was tendered to him and that Maher stated that it would be necessary for him to telegraph for instructions. The answer also sets out that under the trust deed it is expressly provided that the defendant should not be answerable or accountable under any circumstances except for bad faith, or gross or wilful negligence, and avers that it has not been guilty of bad faith and has not been guilty of gross or wilful negligence, and denies that the cross-complainant is entitled to relief as prayed for.
    Eeplications were duly filed to the answers, and on January 19, 1912, a stipulation or agreement was entered into between the Central Trust Company, the Inter Ocean Company, Owsley as executor, and Hinman, as to the bill and cross-bill and trial thereon of the Central Trust Company. The agreement recites the receipt by the Central Trust Company of the sum of $32,116.42 in payment for the disputed coupons; that the executor contends that the Central Trust Company of Illinois was not authorized to receive the money in payment of the coupons and was not authorized to surrender the same, and that the receipt of the money and the surrender of the coupons were, and each of them was, unlawful and improper; and, on the other hand, it has been contended by the Central Trust Company, and by the Inter Ocean Company and each of them that the Central Trust Company was authorized to accept said money in payment of said coupons and to surrender the same and that the acceptance was proper.
    The agreement further recites that the executor contends that on November 25, 1911, and thereafter it was the duty of the Central Trust Company, as trustee, to declare the principal of the bonds due, and that it is contended by George W. Hinman and the Inter • Ocean Company that it was not the duty of the Central Trust Company to declare the principal of the bonds due, and that since the filing of the bill of complaint on January 19, 1912, the Inter Ocean bonds in controversy, together with the coupons due July 1, 1911, and subsequent thereto, were sold to George W. Hinman in accordance with the order entered by the Probate Court on November 25, 1911, and an order confirming the same entered on January 19, 1912, and that the $32,116.42 theretofore paid to the Central Trust Company of Illinois has been agreed to be turned over to the defendant executor in accordance with the agreement between the parties, which is attached.
    To avoid circuity of action it is agreed that the executor shall answer the bill of complaint and file his cross-bill to have the damages assessed, and that the Central Trust Company shall answer the cross-bill, and the issues raised by said original bill and by said cross-bill, and the answers thereto shall be heard and determined together by this court in the cause, notwithstanding the sale of the bonds to Hinman and the agreement, Exhibit “A” annexed, and the payment made in accordance with said agreement; and, independently of whether or not the court in this cause shall hereafter instruct the said Central Trust Company of Illinois to declare or not declare the principal of the bonds due, as to which the court shall take such action as it may be advised, the court shall, nevertheless, determine whether or not it was, on November 25, 1911, or at any time subsequent thereto, and prior to the date of sale of said bonds to said Hinman, the duty of said Central Trust Company of Illinois to declare the principal of said bonds due, and shall also determine fully the issues raised by said cross-bill and the answer thereto. The agreement further recites that the parties understanding that the appeal from the Probate Court on the contempt proceeding may possibly be determined before the hearing of this cause, this shall be without prejudice to the executor to claim that such proceedings are res adjudicaba and without prejudice to the other parties to claim that it is not res adjudicaba as to any matter or thing involved in the above cause, it being admitted that neither said Hinman nor said Inter Ocean Newspaper Company was or is a party to such contempt proceedings in the Probate Court, and nothing in this stipulation contained shall be construed as a waiver by any party of his or its right to have the decree reviewed upon appeal or writ of error.
    Miller, Starr, Packard & Peckham, for plaintiff in error; W. Orison Underwood and Merritt Starr, of counsel.
    Pam & Hurd and John Barton Payne, for defendant in error.

       Sec Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, sama topic and section number.

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

   Mr. Justice Smith

delivered the opinion of the court.

The final decree of February 13, 1913, finds upon the bill and cross-bill that by reason of the order of November 25, 1911, and the contract of April 1, 1911, and the facts shown in the record, it was not the duty of the trustee to declare the principal of the bonds due; that the demand of the executor interfered with the order of November 25, 1911, and changed the status of the parties; that the executor appointed and treated the Trust Company as his agent to demand and receive payment for the disputed coupons; that the Trust Company had the right to receive payment therefor and surrender the disputed coupons, and that the Trust Company was not bound to comply with the demand of the executor.

Fifty errors are relied upon for a reversal of the decree. Plaintiff in error has presented a brief and argument under sixteen heads with numerous subdivisions in Support of the errors assigned. We shall not undertake to pass upon the numerous points and subdivisions specifically, although we have considered them. In the view" we take of the case, such a discussion would be unnecessary, for it would involve a discussion of many points which we deem immaterial.

The bill presented a clear case of a trustee confronted by doubt as to its duty in the premises and threatened with damage suits by both parties if it failed to comply with their respective demands. But, whatever equity the bill may have presented as originally filed, all questions as to the jurisdiction of the court in the premises were foreclosed by a stipulation in the case entered into between the parties. That stipulation contained a recital to the following effect: “Whereas, in order to avoid circuity of action and multiplicity of suits, it is desired by all the parties that the matters in controversy between the parties hereto shall be determined in this proceeding.” It was then agreed that the executor should answer the bill and that he should file a cross-bill, setting up his alleged claim for damages, and that “the issues raised by said original bill and by said cross-bill and the answers thereto, shall be heard and determined by this court in the above entitled cause, notwithstanding the sale of said bonds to Hinman and the agreement, Exhibit ‘A,’ hereto annexed, and the payment made in accordance with said agreement, and, independently of whether or not the court in this cause shall thereafter instruct the Central Trust Company of Illinois to declare or not declare the principal of the bonds due, as to which the court shall take such action as it may be advised (the defendant executor claiming that having sold said bonds, he is no longer interested in the question as to whether or not the principal of said bonds shall thereafter be declared due), said court shall, nevertheless, determine whether or not it was, on November 25,1911, or at any time subsequent thereto and prior to the date of the sale of said bonds to said Hinman, the duty of said Central Trust Company of Illinois to declare the principal of said bonds due, and shall also determine fully the issues raised by said cross-bill and the answer thereto.” There is a further provision in paragraph five that nothing in the stipulation shall preclude any defenses, with a recital to the effect that it is not intended to cut off defenses, “but simply to provide for the adjudication of such rights, claims, equities and defenses, in this proceeding.” We think it clear that under such stipulation the court should, in this proceeding, take the very course which the parties had agreed should be taken, namely, determine whether it was the duty of the Trust Company to declare the principal of the bonds due, the whole controversy revolving around that central fact. The stipulation was a clear and distinct waiver of any possible objection which could have been made originally, that there was an adequate remedy at law, and it is well settled that such a defense may be waived.

The contention that a similar proceeding was pending in the Probate Court is equally untenable. The petition which was filed in the Probate Court asked the instructions of that court as to whether the custodian should comply with the demand which the executor made upon it to tender back the money paid on the disputed coupons and demand a return of such coupons, and for such other instructions, if any, as the court might deem appropriate. The petition did not ask instructions of the Probate Court with respect to declaring the principal of the bonds due, but, if it had, the objection of a prior proceeding pending could only have been made by a plea in abatement in the Circuit Court. Not only was this plea not made, but the point was waived by the above stipulation.

We do not think it necessary to enter into a discussion of the construction of the clause in the mortgage with respect to declaring the principal of the bonds due. It may be conceded, for the purposes of this case, that under the clause in question in the mortgage, if default were made in the payment of interest and continued for the period specified therein, and this situation was not affected by any other circumstances, such as the agreements of the parties and the submission of the offer to the Probate Court, it would have been the duty of the Trust Company to have declared the principal of the bonds due. The trustee’s duty here, however, was controlled by other circumstances and agreements subsequently entered into.

The executor contends that it was the duty of the trustee to declare the principal of the bonds due immediately upon the receipt of the demand from the executor on November 25, 1911, and the trustee had no discretion in the matter.

The argument in support of this contention is based mainly upon the fifth clause of the mortgage, which provides that the trustee, in case of six months’ default, “may, and if thereunto requested in writing by the holders of a majority in amount of the said bonds then outstanding, shall, by written notice to the Trust Company, declare the principal of all the bonds hereby secured then outstanding to be, and the same shall thereupon become, immediately due and payable.”

This argument, however, ignores many undisputed facts in the record which, in our opinion, justified the Trust Company in taking time to consider its duties, not only in view of the provisions of the mortgage, but of the situation of the parties. The Hinman offer of March 14th, the contract of April 1st, and the deposit of $20,000 thereunder by Hinman, the petition filed in the Probate Court on June 8th, and the order of the court thereon of November 25, 1911, fixed a status of the bonds and coupons not provided for in the mortgage. The Probate Court having assumed and exercised jurisdiction over the subject-matter and directed a sale of the bonds and coupons as they stood, on the application of Owsley, the executor, there was no power or equitable right in the executor to change the status so fixed by demanding that the trustee declare the maturity of the bonds. If the Trust Company had complied with the demand of the executor and declared the bonds due, it would have created an entirely different status of affairs from that established by the Probate Court by its order nisi of November 25th. Hinman would have had the right to withdraw his offer and take up his deposit of $20,000, and the Probate Court would have been compelled to recognize the changed situation and allow the offer and the deposit to be withdrawn. At the time the demand was made upon the trustee, it was acting under the order of the Probate Court entered only a few minutes before, as well as under the prior order by which the bonds and coupons were placed in its custody, and the trustee had no right to change the status of the parties and the condition of the bonds without first submitting the matter to the court. The principles of common honesty and fair dealing with the court and the parties in interest required this. That the executor might have sold the bonds without applying to the Probate Court is immaterial. The executor did apply for an order of sale, and it was entered. After the court, upon the application of the executor, had taken cognizance of the subject-matter of the sale of the bonds, the executor had no right to step out of court and change the subject-matter of the sale without submitting the proposed change to the court. Quidnick Co. v. Chafee, 13 R. I. 367; Knott v. People, 83 Ill. 532; Ex Parte Kellogg (Cal.) 30 Pac. 1030; Merrimack River Sav. Bank v. City of Clay Center, 219 U. S. 527. We think the contention that it was the duty of the Trust Company to declare the bonds due on the demand of the executor made upon it a few minutes after the entry of the order of November 25, 1911, is untenable, when considered from the point of view of the rights and obligations of the parties arising out of the agreement of April 1, 1911, and the subsequent proceedings in the Probate Court.

A consideration of the situation which the trustee occupied under the mortgage, and the duties which it owed to the maker of the mortgage and the holder of the bonds secured thereby, in connection with the subsequent relations created by the parties above adverted to, leads us to the same conclusion. A trustee in a trust deed given to secure the payment of money is the agent of both parties thereto, and is bound to act fairly and justly towards the debtor as well as towards the creditor. If the instructions or demands of one party require him to do an illegal or immoral act, he may violate such instructions with impunity. Story on Agency, sec. 195; Ventres v. Cobb, 105 Ill. 33; Williamson v. Stone, 128 Ill. 129. Furthermore, the . written instruments and the evidence in the case establish beyond any reasonable doubt that the status quo was to be preserved by the parties until the Hinman offer was submitted to and passed upon by the Probate Court. Hinman offered to buy the bonds; the executor agreed to submit the offer to the Probate Court, and if the Probate Court approved the sale, Hinman should have the bonds, unless a better offer was made, and that the bonds in character and condition should remain unchanged until that matter was finally passed upon by the Probate Court; and to that end no attempt should be made to collect interest or rent or to declare the principal of the bonds due. This was the spirit of the agreements and actions of the parties up to the time the demand was made by the executor. The demand was in violation of the agreements, and was an act of bad faith on the part of the executor. On the other hand, when the demand was made to declare the bonds due, Hawes and Abbott of the Trust Company took the matter under advisement until the following Tuesday. Hinman and the Inter Ocean Company paid the coupons. We think that there is no real foundation in the evidence, considering’ the relations of the parties, for reflection upon the conduct of Dawes and Abbott in taking the matter of the demand under advisement, and the conduct and action of the Trust Company is not justly subject to censure or judicial criticism.

It is urged on behalf of plaintiff in error that the receipt by the Trust Company of $32,116.42 and the surrender of the disputed coupons was not a payment thereof and did not relieve the trustee of its duty under the mortgage to declare the principal of the bonds due.

We cannot assent to this proposition. The question as to the authority of the Central Trust Company to deliver the diputed coupons does not affect this question. If the payment was a good payment, it relieved the default, whether the coupons were delivered or not. Dwen v. Blake, 44 Ill. 135. The coupons were due and the Inter Ocean Company had a right to pay them when the payment was made. The executor was out of the State when the payment was made. The bonds and coupons in question were legally and actually in the possession of the Trust Company, placed there by Owsley, as executor, under the order of the Probate Court. If the executor had the right to collect the coupons, such right must necessarily be exercised through the Trust Company which held the physical possession of them, for the debtor, Inter Ocean Publishing Company, had the corresponding right to the possession of the coupons when it paid them. If then the executor had the right to demand or request the Trust Company to demand payment of the coupons for any legitimate purpose and exercised that right, such request and demand carried with it the authority from the executor to deliver the coupons if the debtor responded to the demand of the Trust Company and made payment before a forfeiture was declared for nonpayment. This demand and authority was never withdrawn. Hence, the executor cannot complain if the Trust Company received the money and delivered the coupons when they were paid by the Inter Ocean Publishing Company. The essence of the complaint of the executor, therefore, cannot be the receipt of the money or the delivery of the coupons when they were paid, but it is that the Trust Company failed to declare the bonds due for default in the prompt payment of the coupons after the demand for payment was made. Furthermore, the evidence shows that it had been the practice of Owsley, as executor, to collect such obligations as notes and maturing coupons through the Central Trust Company as his agent; and, as far as the Inter Ocean Company was concerned, the facts were that on the only occasion when formal demand Was made for the payment of the coupons,- such coupons were presented by the Central Trust Company, and that on the only occasion when the Inter Ocean Company was notified that a demand would be made, in June, 1909, .the request was that the coupons be presented by the Central Trust Company. From all the facts shown in the evidence, our conclusion is that the payment of the coupons to the Trust Company was a valid and legal payment. Southworth v. Smith, 7 Cush. (Mass.) 391; Hale v. Patton, 60 N. Y. 233; Ebert v. Arends, 190 Ill. 221; Zempel v. Hughes, 235 Ill. 424.

If the payment of the -money to the Central Trust Company, under the facts shown by the evidence, was not a legal payment of the coupons, it was a sufficient tender in equity to relieve against the forfeiture under the authorities cited above.

On January 18, 1912, no bids having been received for the bonds better than the Hinman offer, the Probate Court so found and ordered the bonds sold to Hinman, the bonds to be delivered without the disputed coupons, and the price to be reduced by the amount which had been previously paid to the Central Trust Company. In the meantime an agreement had been entered into between all parties covering the payment of $32,116.42 for the disputed coupons to the executor, and providing for the filing of a cross-bill in the case, and that the bill and cross-bill should be heard and considered together. The bonds were accordingly sold and delivered to Hinman, and the full purchase price thereof has been paid, and all conditions and provisions of the offer of March 14, 1911, the deposit agreement of April 1, 1911, the nisi order of November 25, 1911, and subsequent orders of the Probate Court with reference to the sale of the bonds, have been complied with. In substance, therefore, this litigation is reduced to a suit by the executor against the Central Trust Company, for $200,000 damages for not declaring the principal of the bonds due because of the failure of the Inter Ocean Company to pay the interest coupons after demand made. It follows from the conclusion we have reached, as stated above, that the Trust Company did not violate its duty in not declaring the principal of the bonds due, or in wrongfully parting with the coupons, when it received the payment of $32,116.42 therefor, and that the executor has no right of action for damages against the Trust Company. It is, therefore, unnecessary for us to consider and pass upon the competency of the proffered evidence on the question of damages.

We find no substantial error in the decree, and it is, therefore, affirmed.

Affirmed.