text:
    Leon Van Zele, Appellee, v. H. H. Cleaveland and James McNamara, trading as Cleaveland & McNamara, Appellants.
    Gen. No. 6,413.
    1. Chattel mortgages—what necessary to extend lien. Under the Chattel Mortgage Act (J. & A. V 7579), filing with the justice of the peace of an affidavit of extension of a mortgage and entry by him of same upon his docket are necessary to extend the lien of the mortgage, notwithstanding the act may have been otherwise complied with.
    2. Chattel mortgages, § 134

      —when mortgage transfers legal title at time of delivery. A chattel mortgage in form “granting, selling, conveying and confirming” the mortgaged property to the mortgagee, transfers the legal title at time of delivery of the mortgage.
    o. Chattel mortgages, § 131*—when increase of live stock covered by mortgage. The increase of live stock after delivery of a chattel mortgage upon such live stock “granting, selling, conveying and confirming” such property to the mortgagee without referring to increase thereof is subject to the mortgage.
    4. Chattel mortgages, § 209*—when trial of right of property is proper remedy to determine right to property. Trial of the right of property under the Act of 1875 (J. & A. If 6814), levied upon by an execution creditor.and claimed by a third party under a chattel mortgage, is the proper form of action to determine the rights of the respective parties to the property in question.

      5. Chattel mortgages, § 209

      —what demand upon sheriff levying is necessary before commencement of action to try right of property. No other demand upon a sheriff levying upon 'property taken as that of a judgment debtor need be made by a third party claiming the property under a chattel mortgage before commencing action to try the right of property under the Act of 1875 (J. & A. If 6814) than notification to the sheriff in form and manner prescribed in the statute.
    Appeal from the County Court of Henry county; the Hon. L. E. Telleen, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed August 7, 1917.
    H. A. Weld, for appellants.
    Joseph L. Shaw, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This is a trial of right of property under the Act of 1875 (J. & A. if 6814 et seq.). The sheriff of Henry county, October 5, 1916, levied an execution issued on a judgment of the County Court in favor of the appellants, Cleaveland & McNamara, on 9 head of cattle in the possession of the judgment debtor, Thomas Gabriel. Leon Van Zele, the appellee, notified the sheriff that he claimed the cattle, and the sheriff notified the judge of the County Court, as provided in section 1 of the Act (J. & A. 6814). The cause was docketed. The plaintiffs in the execution appeared and a trial before the court without a jury resulted in a judgment in favor of the claimant, from which this appeal is prosecuted.

Appellee grounds his claim entirely on a chattel mortgage given him by the execution debtor, Thomas Gabriel, November 30, 1912, to secure an indebtedness of $1,640, with interest at 6 per cent., due November 30, 1915. Certificates on the mortgage show that it was duly acknowledged before C. P. Luther, a justice of the peace, and entered by him, and duly recorded in the recorder’s office of Henry county. There is also indorsed on the mortgage affidavits of the mortgagor and mortgagee, certified to be subscribed and sworn to before Ó. F. Luther, justice of the peace, November 18, 1915, stating that $1,640 is still due on said mortgage, and will become due by extension November 18, 1916. The affidavits in form and substance meet the requirements of section 4 of our Chattel Mortgage Act (J. & A. jf 7579) for extension of chattel mortgage debts, but that section requires that the affidavit shall be filed “for record in the office of the recorder of deeds of the county where the original mortgage is recorded, also with the justice of the peace, or his successor, upon whose docket the same was entered,” and that the “affidavit shall be recorded by such recorder and be entered upon the docket of said justice of the peace, and thereupon the mortgage lien originally acquired shall be continued and extended.” There is a second certificate of the recorder that the mortgage was recorded November 29, 1915', which was after the date of said affidavits, and we assume sufficient to show a compliance with section 4, so far as it pertains to the recorder’s office; but there is no certificate and no proof that the affidavits were filed for record with the justice of the peace, or entered upon his docket, as required by that section, except it appears that the affidavits were sworn to before the same justice of the peace, or at least one of the same name, as the one upon whose docket the mortgage was entered. The levy in question was made at a time when the mortgage lien depended upon the validity of the extension. The controlling question in the case is whether the extension of a chattel mortgage debt is valid without a compliance with that part of section 4 requiring the affidavit to be filed with a justice of the peace and entered upon his docket.

It is expressly provided in section 1 of our Chattel Mortgage Act (J. & A. If 7576), that no such mortgage shall he valid as against the rights and interests of any third person where the possession of the property remains with the mortgagor unless the instrument is acknowledged and recorded as thereinafter directed. Section 2 (J. & A. Jf 7577), provides for acknowledging before a justice of the peace, or other officer named; and section 3 (J. & A. 7578) for the entry of the memorandum thereof on his docket. Section 4 (J. & A. 7579) requires the instrument, when acknowledged as provided by the act, to be admitted to record by the recorder of the county, and declares that thereupon, if bona fide, it shall be good and valid from the time it is filed for record until the maturity of the entire debt, or obligation, “or extension thereof made as hereinafter specified”; then follow provisions for extension of the chattel mortgage debt by filing affidavits, as hereinbefore mentioned, in the office of the justice of the peace, and the provision that the affidavit be recorded by the recorder and entered upon the docket of said justice of the peace, and that thereupon the mortgage lien originally acquired shall be continued and extended, etc. It is so well settled in this State that noncompliance with the substantial provisions of the act in regard to acknowledging and recording chattel mortgages makes the instrument void as to third persons, that it is unnecessary here to cite and discuss the cases. We see no reason to doubt that the rule applies equally to the requirements of the act as to the filing aüd record of the affidavit evidencing an extension. It is not a question on the present record of the failure of the justice of the peace or recorder to make the proper entry of record because there is no evidence showing, or tending to show,- that the affidavit was filed with the justice of the peace. The fact that it was sworn to before him is no more evidence that it was filed with him for record for entry on his docket than would be the fact that it was sworn to before the circuit clerk (ex oficio recorder) that it was filed in his office for record. It may have been sworn to before the justice of the peace at his office and entered on his docket, or it may have been sworn to before him at some remote part of the county where he happened to be at the time. It was incumbent on the claimant to show that he had a valid lien under the Chattel Mortgage Act which required proof that the affidavit of extension had been filed with the justice of the peace in compliance with the act. We therefore hold that the evidence did now show that the claimant had a right to the property superior to that of the execution creditor. The court therefore erred in entering judgment in favor of the claimant, and it must be reversed. But it might appear on another trial that the instrument was in fact filed with the justice of the peace and entered on his docket. We therefore remand the cause and discuss other errors assigned and argued by appellants.

The difficult question so presented is whether a mortgage of domestic animals covers their increase though silent as to such increase. The mortgage in the present case described, among other chattels, “6 Bed Milk cows ranging from three to six years old.” It seems only one of these 6 cows is among the property here in dispute, and that is said by appellants to be a spotted cow. The others are young cattle, the increase of said 6 cows. The evidence is not so clear as it should be as to the description of the original 6 cows, and whether the one that still survives might or might not be fairly designated as a “red cow”; but assuming that 6 cows were fairly described in the original mortgage, the question arises whether their increase was, as matter of law, covered by the description in the mortgage, which did not expressly mention the increase of the animals mortgaged. We do not find the question discussed in any opinion of our Supreme Court in which chattel mortgages are considered; but it was decided by the Appellate Court of the third district in Gundy v. Biteler, 6 Ill. App. 510. In that case a mare was mortgaged while with foal and afterwards the colt was sold to a third party. The mortgagee brought replevin, and the court said:

‘ ‘ When live stock is mortgaged, its natural increase becomes subject to the mortgage. Hilliard on Mortgages, 420. This was the rule of the civil law, and by universal acknowledgment has become a part of the law of England and the United States. Herman on Chattel Mortgages, 86.”

It was said in Northwestern Nat. Bank v. Freeman, 171 U. S. 620:

“Under the rule that the incident follows the principal, a mortgage of domestic animals covers the increase of such animals, though it be silent as to such increase. This court said in Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 69, by Mr. Justice Harlan * * * ‘according to the maxim, partus sequitur ventrem, the brood of all tame and domestic animals belongs to the owner of the dam or mother. ’ 2 Bl. Com. 390. See also Pyeatt v. Powell (C. C. A.), 10 U. S. App. 200.”

It is said in 3 C. J. 22:

“By virtue of the maxim, partus sequitur ventrem— the offspring follows the dam—the general rule of law is that the offspring of all tame and domestic animals belongs to the owner of the dam or mother, and such ownership continues until divested by some contract, express or implied. Generally the rule just stated includes the increase of the increase ad infinitum.”

We find in Hazelbaker v. Goodfellow, 64 Ill. 238, 242:

“It seems to be a general rule that the offspring of all animals, as well as the growth and increase of property, follows the ownership of the property itself. Hence, unless there is some agreement to the contrary, the increase of all domestic animals belong to the owner of the dam.”

We do not find Gundy v. Biteler cited in any later decision of the Supreme or Appellate Courts of this State, but it is cited in the notes in 46 Am. Dec. 715; 54 Am. Dec. 585; 109 Am. St. Rep. 523; 122 Am. St. Rep. 386, and in 14 L. R. A. (N. S.) 433. It will be seen on referring to these several notes that there is a great diversity of authority on the subject in the American State courts. It has been held in several States that the mortgage does not cover the increase of domestic animals, because in those jurisdictions, by statute or otherwise, the mortgage is held not to convey the title to the mortgagee, but simply to create a lien on the property described, and the eases can be somewhat distinguished on that line. The mortgage in the present case is in the usual form, using the words “grant, sell, convey and confirm” to indicate the title transferred from the mortgagor to the mortgagee.

We think chattel mortgages of this form should be held to transfer the legal title of the property described to the mortgagee at the time of delivery. This court said in Brass v. Green, 113 Ill. App. 58, 60:

“The mortgage vested the legal title of the chattel in the mortgagee, subject to conditions expressed therein. In this regard the mortgage is somewhat similar to an alienation of chattels personal, by deed, a method recognized by the common law.”

In Illinois Trust & Savings Bank v. Alexander Stewart Lumber Co., 119 Wis. 54, 94 N. W. 777, the court said:

“It is elementary that a mortgagee of chattel property holds the legal title thereto, but nevertheless, till default and actual possession of the property in himself, his interest, as against the mortgagor, or any person claiming under him, is special. It is limited to the amount of the mortgage indebtedness. The general property and the equitable title being in the mortgagor, or those claiming under him, the mortgagor may sell the mortgaged property and convey a good title thereto, subject to the mortgage. Such title is equitable in character, to be sure, but it is of sufficient dignity'to be regarded as a general property right, good as against the whole world except as to the special interest of the mortgagee, which, till it becomes absolute, may be extinguished by the owner of. the general property by payment of the mortgage indebt6d.n6SS' ^ ^

In Peter Barrett Mfg. Co. v. Wheeler, 212 N. Y. 90, 105 N. E. 811, it is said:

“In this State a chattel mortgage is a present transfer of the title to the property mortgaged b^ it, defeasible by the payment of the sum or instrument it is given to secure. In default of performance by the mortgagor the title of the mortgagee becomes absolute ; the mortgagor, however, possessing the equity of redemption.”

In 6 Cyc. 985, a chattel mortgage is defined as:

“A transfer of the title to personal property as security for the payment of money, or performance of some other act, and subject to the condition that if the transferrer performs the specified act, title shall revest in him. ’ ’

There are Illinois cases that may be read in support of the contention that the title to chattels mortgaged does not vest in the mortgagee until condition broken, or until the mortgagee takes possession of the property, notably, Barchard v. Kohn, 157 Ill. 579, 585; McConnell v. People, 84 Ill. 583; Whittemore v. Fisher, 132 Ill. 243, 246; Simmons v. Jenkins, 76 Ill. 479, 481; Larmon v. Carpenter, 70 Ill. 549. In most of these cases the court was considering the title to the chattels mortgaged after condition broken, and in saying that the title became absolute in the mortgagee on that event inferentially said that it did not pass till condition broken, or as stated in some cases, till possession taken by the mortgagee; but we do not understand that the common-law rule so clearly expressed in Illinois Trust & Savings Bank v. Alexander Stewart Lumber Co., supra, and in other authorities above cited, is directly denied. The mortgagor, of course, retains a property right in the chattels, and this holds even after foreclosure and sale, and entitles him to an accounting from the mortgagee and payment of any surplus after satisfying the debt and costs; but before condition broken it would seem that the legal title is in the mortgagee. We do not see how it can consistently be said that between the time of the delivery of the mortgage and the condition broken it is in the mortgagor and the default of the mortgagor and possession taken by the mortgagee in some way works a transfer of the legal title. It seems more reasonable to say that the legal title passed by the delivery of the instrument purporting to transfer it and not by some act or default of the parties afterwards.

We therefore conclude that in the present case the legal title to the cows mortgaged, or such of them as were sufficiently described in the mortgage, passed to the mortgagee on the delivery of the instrument, and that their increase after that time became subject to the mortgage.

Appellants contend that this is not a proper action in which to try the rights of the respective parties to the property in question; that each may have a property right in the chattels, and that only the right of possession is in dispute. It has long been recognized as the proper proceeding in contests like this between mortgagees and execution creditors. (Harlow v. Birger, 30 Ill. 425; and Sellers v. Thomas, 185 Ill. 384.)

Appellants argue that appellee could not recover unless he proved a demand on the sheriff before he commenced his action, and say the rule in replevin should be applied. We do not take that view of the law. The statute prescribes the form and manner of notifying the sheriff, which requirement was literally complied with, and we hold no other demand was necessary. There was, however, proof showing, or tending to show, a verbal demand before service of the notice required by the statute.

The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    Leon Van Zele, Appellee, v. H. H. Cleaveland and James McNamara, trading as Cleaveland & McNamara, Appellants.
    Gen. No. 6,414.
    (Not to be reported in full.)
    Appeal from the County Court of Whiteside county; the Hon. W. A. Blodgett, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Trial of right of property by Leon Van Zele, claiming under a chattel mortgage, and H. II. Cleaveland, and James McNamara, trading as Cleaveland & McNamara, claiming as judgment creditors under a levy upon certain farm implements. From a judgment for the chattel mortgage claimant, the judgment creditors appeal.
    This mortgage is the same as that involved in the case between the same parties, Gen. No. 6,413, ante, p. 387, and judgment is reversed for reasons other than as to the question of increase stated in opinion in that Case.
    H. A. Weld, for appellants.
    Joseph L. Shaw, for appellee.
   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Leon Van Zele, Appellee, v. H. H. Cleaveland and James McNamara, trading as Cleaveland & McNamara, Appellants.
    Gen. No. 6,415.
    1. Chattel mortgages, § 203

      —what is right of mortgagee to take possession of only part of property under insecurity clause. A chattel mortgagee who exercises his right under the insecurity-clause of the mortgage to take possession of the mortgaged property on default of the mortgagor cannot take possession of part only of such property and retain his lien under the mortgage as to the remainder thereof as to third persons, but must, as that clause requires, declare the whole debt due, sell the property and account for the proceeds.
    2. Chattel mortgages—when second mortgage not invalid as to execution creditors of mortgagor. A second chattel mortgage is not invalid as to execution creditors of the mortgagor from the mere fact the debt secured by it was included in a first mortgage upon other chattels and that fact not recited in the second mortgage.
    Appeal from the County Court of Whiteside county; the Hon. W. A. Blodgett, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed August 7, 1917.
    Rehearing denied October 4, 1917.
    H. A. Weld, for appellants.
    Joseph L. Shaw, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This is a third trial of right of property between the same parties, each arising from an effort of the appellants, Cleaveland & McNamara, to collect a judgment that they obtained in the County Court of Henry county against Thomas Gabriel. Gabriel resided in Henry county, where he gave the chattel mortgage in question in Gen. No. 6,413, ante, p. 387, but his propertv iii dispute in Gen. No. 6,414, ante, p. 396, was found in Whiteside county and levied on there Septem- . her 20, 1916, by the sheriff of that county under an execution issued from Henry county September 7, 1916. Gabriel, the mortgagor and execution debtor, claimed his exemptions under that levy, and Van Zele claimed a part of the property under said chattel mortgage and gave notice to the sheriff of that claim October 6, 1916. The trial resulted in a judgment for Van Zele, and a reversal of that judgment by this court. (Gen. No. 6,414, ante, p. 396.) The sheriff on October 25, 1916, sold what property remained in his hands and realized enough to pay the costs and expenses, leaving only 40 cents to apply on appellants’ execution. They then ordered another levy of the same execution, which was made October 28,1916, more than a month after the first levy, 22 days after Van Zele had given notice of his claim to the property then levied on, and 10 days after he had obtained the judgment of the Whiteside County Court as to that property in his favor. The last levy was made on 7 horses and 3 colts found in Whiteside county. Appellee, Van Zele, served the sheriff with notice of his claim of right of property, and on- a trial before the court without a jury claimed 5 horses and 2 colts under the same chattel mortgage under which he claimed the cattle in Gen. No. 6,413, ante, p. 387, and other chattels in Gen. No. 6,414, ante, p. 396; and 2 horses and 1 colt under a second chattel mortgage from Gabriel purporting’ to secure a note of $800, with interest at 6 per cent. The court found for the claimant, appelleé, as to the property claimed under the first mortgage, and for the defendants as to the property claimed under the second mortgage. The defendants prosecute this appeal, and present the question whether the claimant could exercise his right as mortgagee to claim the property first levied on in Henry county—the subject of controversy in Gen. No. 6,414, ante, p. 396—and leave the balance of the mortgaged property in the possession of the mortgagor without, after the lapse of a reasonable time for him to take possession of such property, losing his lien. In other words, appellants say that when appellee, under the insecurity clause in the instrument, claimed a part of the chattels mortgaged, he was in the position of a mortgagor whose debt becomes due by lapse of time, and he lost his lien as against third persons by leaving the property in the hands of the mortgagor an unreasonable time after he had, in effect, declared the debt due; that he could not be permitted to foreclose the mortgage piecemeal. If appellants are right in their position that appellee in asserting his title to and taking possession of a part of the mortgaged chattels in effect declared that mortgage debt due, we see no escape from their conclusion that he lost his first mortgage lien, as against them, in permitting the property to remain 'in the possession of Gabriel, the mortgagor, for that length of time.

The first mortgage contained the usual provision for possession by the mortgagor until default in payment; and the further quite common provision that if such possession should be deemed hazardous by the mortgagee, or if the mortgagee should fear diminution of said goods and chattels, or destruction or alienation thereof, then he should have the right “to take immediate possession of said goods and chattels, * * * and sell the same at public or private sale, * * * to make the sum of money and interest promised as aforesaid, together with all reasonable costs, charges and expenses in so doing; and if there shall be any surplus, shall pay the same to the said party of the first part, or his legal representatives.” ■

Appellants cite no authority in support of their position that the action of appellee in taking property under this insecurity clause was, in effect, declaring the whole debt due; and we have found no case deciding that question. Reed v. Eames, 19 Ill. 594, states the rule that the mortgagee must take possession of the chattels mortgaged on maturity of the debt, and if he suffers them to remain in the hands of the mortgagor after default it is a fraud per se, because the real ownership being in one person and the ostensible ownership in another, gives the latter a false credit.

In Jones v. Noel, 139 Ill. 377, 382, it is said: “The indebtedness described in a chattel mortgage cannot be due in the sense that the payee may enforce its collection and at the same time not due for the purpose of justifying a mortgagee in leaving the mortgaged property in the possession of the mortgagor.” This expression does not mean that the indebtedness may not be treated as due or not due at the option of the mortgagee where there are a series of notes maturing at different times, or that there may not be conditions broken that the mortgagee may or not, as he chooses, treat as defaults of the mortgagor; but we think it does mean that when the indebtedness is due from lapse of time, then, in enforcing its collection, he cannot at the same time say there is a default authorizing his taking a part of the mortgaged chattels, and no default and no condition broken requiring him to take the rest of them.

It is held in Burnham v. Muller, 61 Ill. 453, if the mortgagee neglects to reduce the property to .possession upon default of the mortgagor, or within a reasonable time thereafter to he determined by the situation of the parties, he loses his lien as against the rights of third persons; and in Lemen v. Robinson, 59 Ill. 115, overruling some earlier cases, that notice of the mortgage other than record notice is immaterial.

It is said in Richley v. Childs, 114 Ill. App. 173, 176, “Possession of mortgaged chattels must be taken by the mortgagee within a reasonable time after default in payment, or other conditions broken by which he becomes entitled to possession.”

In Lange v. Cole, 140 Ill. App. 546, 239 Ill. 88, there was default in the payment of the first maturing of a series of notes secured by a chattel mortgage on an automobile. The mortgagee demanded payment, which was refused, and he thereupon seized the automobile, and while removing it from the mortgagor’s possession was induced by the mortgagor to go to an attorney’s office to adjust the matter. When they got there the mortgagor paid the notes past due, and the costs, whereupon the automobile was released by the mortgagee. The Supreme Court held that the mortgagee by this action had not, under the circumstances of that case, lost his lien as against a subsequent execution creditor. We do not read that case as holding that in chattel mortgages of the character there considered the mortgagee can foreclose piecemeal. The question in the present case is whether he can take repeated action under the insecurity clause; whether he may deem himself unsafe and insecure and the mortgagor’s possession hazardous as to one item of property because it has been levied on, or sold, or in some way gotten into the possession of a third person, and assert his rights to that property leaving the mortgagor in possession of the other mortgaged property and perhaps returning to him the property that he so rescued from the sheriff, or other third person who had possession. We are of the opinion that when the mortgagee acts on such insecurity clause he must, as against third persons, do what the clause requires, which is in effect to declare the whole debt due, sell the property, and account for the proceeds. He may in case of notes maturing at different times exercise or not, as he pleases, his right to declare the whole debt due and foreclose; and the same principle applies to his action under the insecurity clause. If he does not act the mortgage remains in force; but if he does exercise his option there is a default of the mortgagor, which requires the same action on the part of the mortgagee as if there were default in payment of the debt by,lapse of time.

There was evidence in this case that the affidavit of extension discussed in G-en. No. 6,413, ante, p. 387, had been filed with the justice of the peace in compliance with the Chattel Mortgage Act. It is objected that that evidence was not sufficient. Without considering that question we conclude that appellee had, under his first mortgage, no right of property in the horses there described as against appellants’ execution because he was in the position of a mortgagee failing to take possession of chattels mortgaged after default of the mortgagor; therefore, that the court erred in finding the right of property in those chattels in the claimant. ,

The second mortgage purported to secure an indebtedness of $800 from the mortgagor to the mortgagee. It appeared on the .trial that this was not an independent indebtedness but a part of the debt described in the first mortgage; that because of depreciation in value of the chattels first mortgaged this additional mortgage was given to better secure appellee on that debt. There was nothing in the second mortgage indicating it was not an independent debt. It is not argued that Van Zele, the claimant, was guilty of any fraud or intentional wrong in taking the additional security in this manner; but the trial court refused to hold at the request of the claimant “that a chattel mortgage given to secure a bona fide prior indebtedness is not rendered invalid as to third persons by the fact that such prior indebtedness is secured by another mortgage on other chattels, although the more recent mortgage does not recite that the note it secures is part of the debt secured by such older mortgage”; and found for the defendants as to the property described in the second mortgage. Cross errors are assigned raising this question. Counsel confine their dis'cussion here to the question whether the court erred in refusing that proposition of -law, and do not discuss the testimony showing, or tending to show, the motives prompting the giving of the second mortgage.

It is held in Sawyer v. Bradshaw, 125 Ill. 440, 444, that the fact that a note secured by a trust deed was given for a larger amount than was due at the date of the note should not, of itself, void the deed of trust as to creditors; that the consequence in that respect depends upon the intent of the transaction and upon its being calculated to mislead to their injury, or to hinder and delay creditors. It is said in 20 Cyc. 442: “An incorrect statement of the consideration of a mortgage, deed of trust, or other conveyance, is a badge of fraud. But the mere fact that the consideration expressed in the mortgage, or other conveyance, was not the true one does not conclusively show that the conveyance was in fraud of creditors. This misrecital must be intentional and not the result of an innocent error, and the fraudulent intent must be known to or participated in by the grantee.”

It is held in Wooley v. Fry, 30 Ill. 158, that the fact that a note and chattel mortgage were given for a larger sum than was actually due is not conclusive of fraud; that it is for the jury to decide whether it was done in fraud of creditors, or in good faith.

The court said in Mitchell v. Sawyer, 115 Ill. 650: “If the mortgage was executed for too large a sum to protect the property from creditors, it will be fraudulent and void as to them,” citing authorities.

We are of the opinion that the second mortgage was not invalid as to appellants from the mere fact that the $800 indebtedness secured by it was also included in the first mortgage on other chattels, and' that fact not recited in the second mortgage. Therefore the court erred in refusing that proposition of law. We conclude, without passing on the evidence as to the giving of that mortgage, or expressing any opinion whether there was anything in the transaction that showed, or tended to show, fraudulent intent on-the part of appellee in taking that security, that because of that error the judgment awarding the chattels covered by that mortgage to the defendants should be reversed.

The judgment is reversed and the cause remanded. The costs of this appeal will be taxed against appellants and appellee one-half each.

Reversed and remanded.


text:
    Charles Herman, Appellee, v. Henry Heuer, Appellant.
    Gen. No. 6,429.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Sltjsseb, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by Charles Herman, plaintiff, against Henry Heuer, defendant, to recover $390.20 under the common counts with affidavit of claim, to which defendant filed general issue with affidavit of defense and notice of set-off of $150. From a judgment for plaintiff for $390.20, defendant appeals.
    Rathje, Lawlor & Connor, for appellant; Edwin D. Lawlor, of counsel.
    Herbert A. Schryver, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 892 —when refusal of court to direct verdict not reviewable. Where the refusal of the court to direct a verdict was neither abstracted nor covered by the errors assigned, no question was presented for review.

2. Appeal and error, § 788*—what must appear in bill of exceptions as basis for review of instructions and sufficiency of evidence. Where bill of exceptions as abstracted contained only the evidence and did not include instructions, which were only certified by the clerk as a part of the record, and it was not shown who offered them, plaintiff, defendant or the court on its own motion, or that any one objected to them when given, and no motion for a new trial appeared iff the bill of exceptions, held that neither the instructions nor whether the evidence sustained the verdict would be considered, notwithstanding the record proper, as distinguished from the bill of exceptions, set out the instructions and motion for a new trial.


text:
    Anton Palmieri, Appellee, v. Illinois Third Vein Coal Company, Appellant.
    Gen. No. 6,433.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by Anton Palmieri, plaintiff, against Illinois Third Vein Coal Company, defendant, to recover damages for personal injuries sustained by plaintiff while in defendant’s employ. From a judgment for plaintiff for $1,000, defendant appeals.
    McDougall, Chapman & Bayne, for appellant; Mastin & Sherlock, of counsel.

      Abstract of the Decision.
    1. Workmen’s Compensation Act, § 3

      —when employer presumed to be operating under act. An employer engaged in extra-hazardous employments as defined by the Workmen’s Compensation Act is presumed to be operating under the act.
    2. Workmen’s Compensation Act, § 12*—what is necessary for statement of good cause of action at common law. To state and make a good cause of action by an employee against his employer for personal injuries, it must appear that the defendant has rejected the provisions of the Workmen’s Compensation Act in the manner prescribed therein and was guilty of some infraction of law occasioning the injury complained of.
    3. Workmen’s Compensation Act, § 12*—when burden on plaintiff to show rejection by employer of provisions of. The burden is on the plaintiff, in an action at common law by an employee against his employer for personal injuries, to establish his allegation that the defendant had rejected the provisions of the Workmen’s Compensation Act.
    J. L. Spaulding and J. L. Murphy, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Metropolitan Discount Company, Appellee, v. August Pitsch, Appellant.
    Gen. No. 6,436.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 800

      —necessity óf showing motion for new trial in hill of exceptions. The sufficiency of evidence to support a verdict cannot he considered in the absence of a motion for a new trial shown in the abstract of the bill of exceptions or in the bill itself.
    - 2. Appeal and error, § 601*—what unnecessary as basis for rcview of court’s action on motion to direct a verdict. The court’s action on a motion to direct a verdict, which raises only a legal question whether there is any evidence tending to sustain the verdict, is reviewable, though no motion for a new trial was made.
    3. Bills and notes, § -460*—when negligence in signing accept

      anees is question for jury. Evidence as to whether defendant was guilty of negligence in signing certain acceptances without ascertaining their contents, held not so clear as to warrant the court in withdrawing that question from the jury.

      Appeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by the Metropolitan Discount Company, a corporation, plaintiff, against August Pitsch, defendant, to recover $29.60 on each of three acceptances, negotiable instruments, in favor of the National Novelty Import Company and indorsed and assigned to plaintiff. From a judgment for plaintiff for $88.80, defend- . ant appeals.
    Kirk & Shurtleff, for appellant.
    Alphon L. Anderson, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

4. Corporations, § 763 —what is sufficient plea in bar to action by foreign corporation. The defense set up in a plea to an action hy a corporation based upon certain acceptances by defendant that plaintiff was one and the same as another corporation of a different name and that both were foreign corporations, and neither was licensed to do business in the State, and that plaintiff was engaged in peddling its goods in the. State without being so licensed, held, on demurrer, properly pleaded in bar, under the Foreign Corporation Statute (J. &-A. K 2526 et seq.), of such action, seeking to recover for such goods sold by plaintiff to defendant.

5. Corporations, § 709*—what constitutes doing -business within State. Peddling goods in the State by a foreign corporation constitutes “doing business” within the State within the meaning of the Foreign Corporation Statute (J. & A. If 2526 et seq.).

6. Pleading, § 26*—when plea not duplicitous. A plea setting up. want of consideration for certain acceptances sued on and also that plaintiff was an unlicensed foreign corporation doing business within the State by peddling its goods therein and selling such goods to defendant for which such acceptances were given, held not bad for duplicity.


text:
    The People of the State of Illinois for Use of Drainage Commissioners of Drainage District No. 2, of Town of Ophir, La Salle County, Illinois, Appellee, v. A. P. Wylie, Appellant.
    Gen. No. 6,437.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Drainage—when finding that district is estopped to recover money paid out by treasurer will not be disturbed. In an action on the official- bond of the treasurer of a drainage district, the finding of the court on the question whether plaintiff drainage district was estopped from demanding that money he paid back to the district after it has been once paid for the benefit of the district will not be disturbed.

      Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by the People of the State of Illinois for the use of Drainage Commissioners of Drainage District No. 2, of the Town of Ophir, La Salle County, Illinois, plaintiff, against A. P. Wylie, defendant, upon defendant’s official bond as treasurer of said district to recover money coming into defendant’s hands as such treasurer on account of certain assessments for public improvements made by the district. From a judgment for plaintiff for $692.22 damages, on a directed verdict, defendant appeals.
    James J. Conway and Henry M. Kelly, for appellant.
    R. D. Mills and Butters & Clark, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

2. Drainage, § 54 —when commissioners have no power to use funds. Drainage commissioners have no power to use funds appropriated, levied and collected for a certain purpose for another and different purpose.

3. Drainage, § 55*—what indebtedness may not be incurred or paid by district. A drainage district cannot lawfully incur or pay indebtedness created prior to the levying of an assessment appropriating money for such purpose.


text:
    Charles Frankel, Appellant, v. Mary C. Ashmore, Appellee.
    Gen. No. 6,441.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Rehearing denied October 10, 1917.
    Statement of the Case.
    Action by Charles Frankel, plaintiff, against Mary C. Ashmore, defendant, to recover on a promissory note for $900. From a judgment for defendant, plaintiff appeals.
    Defendant gave a note payable to the Great Western Casualty Company in payment on account of the purchase of certain stock of the company when it should be organized, it being then in the process of organization, and it being agreed that the note should not be sold but deposited .with the insurance department of the State as a part of the fund required to authorize the incorporation of an insurance company. The corporation was never organized. The note came into the hands of the plaintiff before its maturity by mesne indorsements from the nominal payee, and when offered in evidence bore the initial indorsement of the Great Western Casualty Company by C. W. Horn, chairman commissioners.
    Abstract of the Decision.
    Corporations,' § 25
      *—when innocent purchaser for value before maturity of note of payee corporation acquires no title. No legal title to a promissory note is acquired by a purchaser thereof although acquired by him prior to its maturity and in good faith for value, where the payee thereof upon whose indorsement such purchaser relies is an unorganized corporation, since, until the corporation is fully organized, there is no officer authorized to assign and transfer the title to a note payable to the corporation.
    Shelton McGrath, for appellant; A. Jacobson, of counsel.
    McRoberts, Morgan & Zimmerman, for appellee.

      See IHinois Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    State Bank of East Moline, Appellee, v. Moline Pressed Steel Company, Appellant.
    Gen. No. 6,453.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Corporations, § 371

      —when court has prima facie jurisdiction to enter judgment T>y confession against corporation. Where a note and warrant of attorney for confession of judgment thereon are signed by the corporation payee by its president, the court has prima facie jurisdiction of the defendant corporation to enter judgment on such note and warrant, notwithstanding it is not shown that the note and warrant are executed by the president or that he has authority to execute same.
    2. Judgment, § 88*—when defendant to judgment 6y confession cannot complain that allowance of attorney’s fees is excessive.
      Where a defendant to a judgment by confession on warrant of an attorney entered special appearance for the purpose only of moving to quash an execution issued on the judgment on the ground of no jurisdiction of the court of the person of the defendant, held that he could not complain for the first time on appeal that the allowance in the judgment of attorney’s fees was excessive, or that the cognovit was broader than the warrant in certain respects.

      Appeal from the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Judgment by confession entered in favor of the State Bank of East Moline, plaintiff, against Moline Pressed Steel Company, defendant, for $5,353.33, including $300 attorney’s fees. Prom an order overruling defendant’s motion, on special appearance, to quásh an execution issued on the judgment for want of jurisdiction over the person of the defendant to enter judgment, defendant appeals.
    J. T. & S. R. Kenworthy, for appellant.
    H. A. Weld, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the .opinion of the court.


author: Mr. Justice Dibell

text:
    George W. Reddig et al., trading as Reddig Company, Defendants in Error, v. John Looney, Plaintiff in Error.
    Gen. No. 6,410.
    1. Pleading, § 161

      —limitation of defense to matter set out in amended affidavit of merits under former statute. Under section 36 of the Practice Act prior to July 1, 1907, if an original affidavit of merits was adjudged insufficient and defendant asked leave to file an amended affidavit, the court had a right to require him to state therein the facts showing a meritorious defense, and when he filed such affidavit his defense was limited to what he set out therein.
    2. Pleading, § 161*—what is rule under present statute as to giving evidence of matter of defense where affidavit of merits filed. Section 55 of the present Practice Act (J. & A. jf 8592), considered in connection with the corresponding section 36 of the prior Practice Act, and decisions construing same, requires that when the nature of the defense was required to be stated in an affidavit of merits all the defense the party has should be so stated, and he will not be permitted to give in evidence any matter of defense not so stated in the affidavit.
    . 3. Pleading, § 150*—what is meaning of words “specify the nature of the defense’’ in statute relating to affidavit of merits. The words “specify the nature of the defense” used in section 55 of the Practice Act (J. & A. j[ 8592) mean that the affidavit of merits must set out the facts which constitute the defense, so that the plaintiff may have reasonable notice what the defense is.
    4. Pleading, § 148*—limitation of recovery to what is stated in affidavit of claim as connected with declaration. Plaintiff can prove and recover only what is stated in his affidavit of claim, and not that unless he has an appropriate declaration on the cause of action.
    5. Pleading, § 150

      —when pleading appropriate to defense set out in affidavit of merits is essential. Defendant can only prove such defense as is stated in his affidavit of merits, and not that or have a verdict upon it unless he has a pleading appropriate to that defense, with the statutory exceptions of demurrers and motions.
    6. Pleading, § 161*—when instruction on waiver of matter of defense not set out in affidavit of merits proper. An instruction that defendant waived matter of defense not set out in his affidavit of merits, held proper.
    7. Appeal and error, § 1674*—when plaintiff waives insufficiency of affidavit of merits. In an action to recover on the consolidated common counts, with a copy of the account and affidavit, for plumbing work, to which defendant pleaded set-off and recoupment, with affidavit of merits as to “damages in the sum of $350 by reason of the breach of the contract sued upon in the declaration,” on which issue was joined, without plaintiff moving to expunge this fact from the affidavit of merits, and plaintiff offered evidence to prove his entire case, held that plaintiff thereby treated defendant’s affidavit of merits as sufficient to require such proof, and an instruction that the jury must regard it as admitted that .the labor and material sued for were furnished was erroneous.
    8. Instructions, § 118*—when instruction is erroneous as inapplicable to evidence. The giving .of an instruction, under a set-off claimed for certain advertising, that if a specific agreed price was not established by a preponderance of the evidence no credit should be allowed for the advertising, was erroneous where the undisputed evidence showed that the advertising was worth a certain amount.
    Error to the Circuit Court of Rock Island county; the Hon. Wilmam T. Church, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed August 7, 1917.
    John Looney, pro se.

    H. A. Weld, for defendants in error.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

In-1911, George W. Reddig, R. R. Reddig and F. 0. Reddig, partners as Reddig Company, brought this suit against John Looney to recover for plumbing work done in 1910, and filed the common counts in assumpsit, with a detailed copy of the account sued on, and an affidavit of claim. Defendant filed the general issue and several special pleas, including set-off and recoupment, together with an affidavit of merits setting up four particulars of his defense, viz.: $50 attorney’s fees; $80, cash payments beyond those credited him in plaintiff’s statement of account; $350 damages by reason of the breach of the contract sued on; and $90 for advertising. Plaintiffs filed replications and defendant rejoined thereto. The issues, except the rejoinders, were completed in 1911. The case J was tried in October, 1916, and during the trial, to meet a ruling of the court, defendant filed an additional plea and an affidavit of merits therewith. Plaintiffs filed replications thereto. There was a jury trial and the evidence was conflicting, and there was a verdict for plaintiffs for $269.95, which was the amount claimed by plaintiff, less an enlarged credit for cash payments conceded on the trial. Plaintiffs had judgment, which. defendant seeks to review by this writ of error. In various pleadings and affidavits and instructions, the suing party is often called “plaintiff” instead of “plaintiffs.” This is"also true of the verdict and the judgment. We shall therefore assume that where the word “plaintiff” is used in the pleadings of the defendant, the plural number is intended.

It is argued that the court erred in giving instruction No. 1, requested by plaintiffs, to the effect that the defendant in his affidavit of defense did not deny that the labor and materials sued for were furnished, and that the jury must regard it as established that they were so furnished. This requires consideration of the force and effect of section 55 of the present Practice Act (J. & A. ft 8592), and also of the meaning to be attributed to the affidavit of merits filed herein. Section 55 of the Practice Act of 1907 requires that where the plaintiff files a proper affidavit of claim he shall be entitled to judgment as in case of default, unless' defendant, or his agent or attorney, files with his plea an affidavit that he verily believes the defendant has a good defense upon the merits to the whole or a portion of the plaintiff’s demand, and if to a portion only, specifying the amount, and specifying the nature of such defense. Instruction No. 1 is based on the position that whatever is not specified as a defense in such affidavit is waived, or that all plaintiffs’ ease not denied by the affidavit is conclusively admitted. For many years prior to July 1, 1907, the corresponding-provision of the Practice Act was section 36, and it did not contain the requirement that the affidavit of merits should specify the nature of the defense. Under this former statute the Supreme Court held in Allen v. Watt, 69 Ill. 655, that the affidavit filed with the plea should describe with reasonable certainty the entire ground of defense relied upon, except such as was of a dilatory character, which was expressly excepted; and where an affidavit was filed setting up a certain defense, it was a necessary implication therefrom that this was all the defense the defendant had, and that it was not competent to prove an additional defense not included in the affidavit. In Haggard v. Smith, 71 Ill. 226, it was held that the object of this provision in the Practice Act was to prevent vexatious delays caused by filing pleas where there was no real defense, and that, if defendant had no defense that he could support by his own affidavit, he ought to allow the creditor to have judgment, and the defense claimed having been allowed, his affidavit presented no further defense and the judgment by default was proper. In Mayberry v. Van Horn, 83 Ill. 289, defendant pleaded the general issue and an affidavit that he had a good defense on the merits to a certain amount. Plaintiff took judgment for all his claim except that amount. The court held there was no defense to the suit except as to the amount allowed, and affirmed the judgment. In Henry v. Meriam & Morgan Paraffine Co., 83 Ill. 461, plaintiff filed an affidavit of claim with its declaration and defendant filed pleas of the general issue and nul tiel corporation, with an affidavit of merits as to $40. The court gave plaintiff a judgment for the amount sued for, less $40, disregarding the plea of nul tiel corporation. The court held that, as the affidavit of merits did not set up the defense that there was no such corporation, the court could either strike that plea from the files or disregard it, and the judgment was affirmed. In McCord v. Crooker, 83 Ill. 556, it was held that if a defendant in an affidavit of merits undertakes to set up the facts constituting his defense, and if the facts so stated do not necessarily present a defense, the court is justified in holding the affidavit insufficient and in refusing to allow the plea to be filed. In McKichan v. Follett, 87 Ill. 103, the affidavit of merits was stricken from the files for supposed defects and the defendant asked leave to amend, which the court refused unless he would show a meritorious defense, and he obtained extension of time within which to file such an affidavit, and did not file it, and judgment was rendered against him. It was held that the court did not exceed its power in requiring a meritorious defense to be disclosed as a condition to allowing the amendment. In Culver v. Johnson, 90 Ill. 91, an affidavit of merits was adjudged insufficient and defendant was ruled to file an amended affidavit showing his defense. He filed another affidavit, and the conrt held it did not show a good defense and struck it and the plea from the files and entered judgment. The Supreme Court held that the defendant was not bound to file the second affidavit, but that having undertaken to do so, he was bound to show a meritorious defense. It seems clear from these and other cases that under the former statute, if the original affidavit was adjudged insufficient and a defendant asked leave to file an amended affidavit, the court had a right to require him to state therein the facts showing a meritorious defense, and when he filed such an affidavit his defense was limited to what he set out therein. In this condition of the decisions the present Practice Act was so amended as to require that the affidavit of merits should in the first instance specify the nature of the defense. It is reasonable to suppose that the Legislature intended thereby to also adopt the principle of the previous decisions that when the nature of the defense was required to be stated in an affidavit, all the defense the party had should be so stated, and that he would not be permitted to give in evidence any matter of defense not so .stated in the affidavit. If a defendant might at the trial give in evidence substantial matters of defense not stated in his affidavit of merits, the requirement that he should set forth the nature of his defense would be of no avail and would operate as a snare to the plaintiff. We held, under this statute in Miller v. Thomas, 200 Ill. App. 125, that defendants were confined to the defense set up in' their affidavits of merits. The act governing the Municipal Court of Chicago contains a similar provision, and there are numerous cases in the Appellate Court, First District, where the defendants have been held limited to the defense set up in the affidavit of merits. These cases, however, are not all strictly applicable here, because there is in the Municipal Court a rule which limits defenses at the trial to those which are set out in the affidavit. That rule is shown in Perry v. Krausz, 166 Ill. App. 1; Hamill v. Watts, 180 Ill. App. 279, and other cases. That rule, however, was intended to apply the spirit of said section 55 of the Practice Act, and many of the cases in the First District discuss and are based upon both section 55 and the rule of the Municipal Court. Thus, in Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276, discussing the words “specifying the nature of such defense,” in said section 55, the court said:

“Prior to the addition of these words, it was held that an affidavit stating that the defendant had a good defense to the suit upon the merits was sufficient to entitle the defendant to prove any defense he had that was well pleaded. The addition of the words ‘and specify the nature of such defense’ was not inadvertently made. The purpose of requiring the affidavit of merits to set out the nature of the defense relied on was to give the plaintiff notice of the real defense to be presented and to limit the issues to be tried to the defense set out in the affidavit. All defenses, the nature of which are not set up in the affidavit, are considered waived and are unavailable on the trial.”

To the like effect is Greeman Bros. Mfg. Co. v. M. L. Nelson Furniture Co., 191 Ill. App. 494, where it is held that by said section the issues to be tried are limited to the defenses set out in the affidavit of merits. West Coast Timber Co. v. Hughitt, 185 Ill. App. 500, was a case in the Appellate Court for the First District which came from the Circuit Court, and in which it was held that a defense not set up in the affidavit of merits was waived. This general subject is treated in 31 Cyc. 231 to 241, but that text does not cover decisions under our Practice Act of 1907. It will be found that the rule as to the contents of an affidavit of merits by a defendant is much less stringent in this State than in some other States, notably Pennsylvania.

To specify means “to designate in words, so as to distinguish from other things;” and we hold that to “specify the nature of the defense” requires that the affidavit of merits must set out the facts which constitute the defense, so that the plaintiff may have reasonable notice what the defense is. The affidavit must state'directly and positively facts sufficient to disclose a substantial defense. Perry v. Krausz, supra.

The rule above stated will not result in trying cases on issues formed by an affidavit of claim and an affidavit of merits. Though actions at law in the Circuit Court are to be tried upon the pleadings, yet under this statute the parties are limited also by their affidavit. Plaintiff can prove and recover only what is stated in his affidavit of claim, but he cannot prove and recover even that unless he has an appropriate declaration on that cause of action. Defendant can only prove such defense as is stated in his affidavit of merits, but he cannot prove that or have a verdict upon that unless he has a pleading appropriate to that defense. The propf and the verdict must be under proper pleadings, but no. proof can be admitted or availed of under the pleadings unless it is supported by a proper affidavit. The statute excepts demurrers and motions from this provision. We therefore conclude that, so far as instruction No. 1 is based on the proposition that matters of defense not set out in the affidavit of merits are waived, the ruling was correct.

The third particular specified in defendant’s affidavit of merits, attached to his original pleas, was ‘ ‘ damages in the sum of $350 by reason of the breach of the contract sued upon in the declaration.” This language is exceedingly indefinite. The declaration was only the consolidated common counts. It said the defendant was indebted to the plaintiffs in a certain sum for goods and chattels sold and delivered by-plaintiffs at his request, and for goods and chattels bargained and sold to defendant by plaintiffs at his request, and for labor and services bestowed by plaintiffs upon the premises of defendant -at his request, and for plumbing materials, fixtures, apparatus and supplies sold and delivered by plaintiffs at his request, and for work and labor in the plumbing of defendant’s buildings, done by plaintiffs at defendant’s request, for all of which defendant promised to pay the plaintiffs. The third part of the affidavit of merits, and the only part relating to this subject-matter, was so indefinite and uncertain that it might well have been expunged on motion of plaintiffs and leave given defendant to file a more specific affidavit on that subject. Did the affidavit mean that there was a breach of the contract by plaintiffs as to the quality of the goods sold and delivered, or of the plumbing materials and fixtures, or as to the fact or time of delivery, or as to the character of the work and labor? It can be construed to mean that plaintiffs broke the contract by failing to deliver the materials or to perform the labor as agreed. Plaintiffs did not move to expunge or disregard this part of the affidavit of merits, but they joined issues on all the special pleas, thereby treating this affidavit as a sufficient affidavit of merits under the statute, and they proceeded to offer evidence to establish their case as if they were required to do so by a sufficient affidavit of merits. We are of opinion that they thereby treated the third section of the affidavit of merits as sufficient to require them to prove their entire case, and that in this state of the record it was error to instruct the jury that they must regard it as admitted that the labor and material sued for were furnished.

Defendant, the owner of the building in question, was also a lawyer, and also publisher of a newspaper in the City of Bock Island, where these premises were situated. He carried in his paper for. a long while an advertisement which had not been paid for, and the value of which defendant sought to set off in this proceeding. The advertisement concerned the plumbing business carried on at the street and number in Bock Island where plaintiffs carried on their plumbing business, but it gave the name of the proprietor as George W. Beddig, instead of Beddig Company, and at first the court excluded the evidence of the advertisement as not applying to the plaintiffs, but there was proof that George W. Beddig directed the preparation of the advertisement and gave it as if the business was carried on in his name, and the court afterwards admitted the advertisement. George W. Beddig admitted that he had once directed such an advertisement, -but claimed that he paid one Jerry Looney therefor. It was shown without contradiction that Jerry Looney had not been connected with defendant’s newspaper for several years before this advertising was done. George W. Reddig testified that he directed defendant to discontinue the advertisement, and defendant admitted this but they differed very much as to when these directions were given. - Defendant testified that George W. Reddig promised to pay $3.50 per month for said advertising, and George W. Reddig denied it. The court thereupon gave the instruction No. 5 requested by plaintiff, to the effect that unless the preponderance of the evidence showed that Reddig promised defendant to pay him that sum per month for advertising, they would give defendant no credit for said advertising, in making up their verdict. But defendant had also testified that this advertising, for the time it ran, was of the value of $90, and that answer had not been objected to, and there was no proof to rebut it. Defendant had then sought to prove the customary charge for . such advertising, and this evidence was kept out on an objection by plaintiffs. There being evidence, therefore, that the advertising was worth $90, it was error to give this instruction .that if a specific agreed price was not established by a preponderance of the evidence no credit should be allowed for said advertising.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Reinforced Concrete Pipe Company et al., Defendants in Error, v. City of Momence, Plaintiff in Error.
    Gen. No. 6,420.
    (Not to be reported in full.)
    Error to the Circuit Court of Kankakee county; the Hon. A. W. Dbselm, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Bill by Reinforced Concrete Pipe Company and others, complainants," against City of Momence, defendant, to establish certain mechanics’ liens for materials furnished for the construction of a certain sewer system for defendant to the original contractor for the work. From a decree giving such liens to the extent of the funds remaining in the defendant’s hands subject to lien, defendant brings error.
    In ascertaining the total contract price for which the city was liable, the court added to the original contract price $5,500, which the board of local improyements had allowed to the contractors on account of extra excavation of rock. The city contended that this allowance by the board of local improvements was unlawful and should not be charged against the city or added to the contract price, because the contractors were bound to do the work for the contract price. In the instructions to bidders the city stated the rock excavation at 3,500 yards, and stated that these quotations were approximate only and that the board of local improvements reserved the right to increase the same as might be deemed necessary. In the bid of the contractors, and upon which the contract was based, they bid for extra excavation $1.50 per cubic yard. The proof showed that much extra rock was encountered and that it was hard and flinty, and that there were 4,700 cubic yards of rock excavated by the contractors in addition to the 3,500 yards named in the instructions to bidders. The contractors applied to the hoard of local improvements for an allowance therefor, and the city engineer made an estimate of this extra excavation of rock and certified to the board that the contractors were entitled to $5,250 for 3,500 cubic yards of rock at $1.50 per cubic yard, to $150 for change in construction of traps, and to $100 for hauling dirt, a total of $5,500, and a meeting of the board was held and it allowed $5,500 to the contractors for said extras, and the city afterwards paid it.
    Abstract of the Decision.

      1. Municipal corporations, § 402

      —when allowance to contractor and payment by eity for extra work is in accordance with contract. The allowance by a city to the contractor for certain work of a certain sum on account of extras and payment thereof by defendant, held to be in accordance with the contract.
    2. Municipal corporations, § 407*—when vouchers for public improvements are illegally issued. Vouchers issued by a city to a contractor for certain public improvements to the amount of $3,528, and not made payable out of the first instalment of the assessment levied for the work, held to be unlawful under the statute authorizing vouchers to be issued under certain circumstances only out of such first instalments, and only in sums of $100 or multiples thereof, and such amount should be considered as still in the hands of the city, in a suit to establish mechanics’ liens as to such work upon the money, bonds and warrants due or to become due the contractor from the city.-
    Edward P. Harney, for plaintiff in error.
    Sears & Solfisburg, H. M. Kelly, C. M. Clay Buntain, Gower, Hobbie & Parish and Walter J. Nourie, for defendants in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Municipal cobpokations—when money decree against city in famor of materialman, is proper. In a suit to establish mechanics’ liens against the money, bonds and warrants due or to become due the contractor from a city for materials furnished for certain work contracted by the city to be done, held that a money decree was proper where the bonds issued on account of the work had all been sold and the money was or should have been in the hands of the city, notwithstanding the bonds were to be issued against the several instalments of the assessments levied for the work and were payable therefrom.


text:
    Michael D. Coyne, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    Gen. No. 6,422.
    1. Appeal and ebbob, § 987

      —what MU of exceptions must contain for purpose of review. Where a motion for a continuance and showing in support thereof were not contained in the bill of exceptions, held that a question of error in refusing motion is not presented.
    2. Pleading, § 453*—when defects in declaration are waived. Where a declaration, in an action against a railroad company to recover damages for injury to an automobile, was defective in one count in alleging only that the driver exercised due care when crossing the railroad of defendant and did not allege due care in approaching the railroad as well, and in another count in alleging only that he exercised due care in approaching the railroad and did not allege due care in crossing, held that defendant by pleading over after his demurrer to the declaration was overruled waived these defects and they were cured by verdict and could not be reached thereafter by motion in arrest of judgment.
    3. Damages, § 190*—when evidence is insufficient to sustain verdict for injury to automoMle. In an action to recover damages for injury to an automobile, where a verdict was rendered for the amount of a bill for repairs shown to have been made on the automobile and to have been necessary immediately after the accident, but there was no proof that the repairs charged in the bill were all made necessary by the collision, held that the cause must be submitted to another jury.
    4. Railroads, § 619

      —what is duty to give warning on approaching crossing with autospéeder. Where a defendant railroad was propelling an autospeeder on its tracks over a dangerous crossing, held that there was no statutory duty to give the statutory signals in approaching such crossing, but there was a common-law duty to, exercise due care and to give reasonable warning.
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stoug-h, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed August 7, 1917.
    W. R. Hunter and Cornelius Reardon, for appellant.
    F. H. Hayes, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

An automobile, owned by plaintiff and driven by his adult son, Frank Coyne, came into collision with a car carrying men and tools like a hand car, but run by a gasoline engine and called an autospeeder, at the crossing of a highway and the railway of defendant, called by the witnesses Bennett’s Crossing. Plaintiff brought this suit against defendant to recover damages for the injury done to the automobile, and, upon a trial, he had a verdict and a judgment for $276.76, from which the railway company appeals.

It is argued that the court erred in refusing a motion by defendant for a continuance just before the trial began. The motion and the showing in support thereof are not contained in the bill of exceptions, and that question is therefore not presented for our consideration.

The declaration contained an original and three additional counts, which will be treated as counts 1, 2, 3, and 4. It is contended that none of them stated a cause of action and that therefore a motion in arrest, made by defendant, should have been sustained. The first count was good, under the Jennings case in 157 Ill. 274, except that it limited the allegation of due care by the driver of the automobile to the time when he was crossing the railroad instead of alleging his due care while he approached as well as when he crossed over the railroad. The second and third counts we consider good, except that they have the same defect. The fourth count properly alleges due care by the driver of the automobile as he was driving it along the highway from the east towards said crossing, but it did not allege that he exercised due care as he drove upon the railroad. Defendant waived his demurrer to the declaration by pleading over, and these defects were cured by verdict and could not be reached thereafter by the motion in arrest of judgment, which also is not before us because not embodied in the bill of exceptions. .The effect of this defect in each count because of the form of instructions will be considered later.

Plaintiff drove his automobile to Streator, 25 miles away, and had it repaired by the Barley Manufacturing Company, the manufacturer of the machine. A bill for $301.76 was rendered, $25 was rebated therefrom, and he paid $276.76, for which latter sum he had a verdict and a judgment. The proof did not show how much plaintiff ought to recover for the reasonable cost of the repairs necessary to restore the car to the condition in which it was' just before the accident. Plaintiff was asked, “Did you have any repairs made there, while it was in the plant at Streator, except what was necessary to put the car in condition?” to which he answered, “No.” He was shown an itemized bill from the Barley Manufacturing Company and was asked if that was a correct list and the actual cost of the. repairs put upon his car at that time, and he replied that it was. There was up testimony that these repairs were all made necessary by the injuries to the car, received in this collision. Plaintiff was able to describe very little of the damage done to the car and did not testify what repairs were needed. No one testified to the details as to the parts broken or injured. The car was. heavy and had been owned and used by plaintiff three years without repairs. So far as appears, the Barley Manufacturing Company made such repairs as they thought proper. A single illustration from the evidence will show the insufficiency of the proof. Frank testified that the collision loosened a door of the automobile, so that the screws would not stay in. There was no proof of any other injury to any door, yet the proof is that the repairer took off the old doors and the inference is that new ones were put on, and there was a charge of $50 for doors and cowl, and in the reduction of $25 from the bill was included $15 on these doors. If plaintiff had testified that all these repairs for which this bill was rendered were made necessary by this collision, his subsequent examination showed that he could not possibly have known that, for he only knew a few of the more obvious items of the injury. Plaintiff relies upon the bill rendered as proving the reasonable cost of the repairs made necessary by the collision, under Travis v. Pierson, 43 Ill. App. 579. Before that case could apply, plaintiff should have proved that the repairs charged in this bill were all made necessary by the collision. That proof was wholly lacking. Evidence introduced by defendant tended strongly to show that these repairs were not all made necessary by this collision, though some of this evidence was hearsay and incompetent. For lack of sufficient proof of the amount of the damages the cause must be submitted to another jury.

There is no statutory duty binding defendant to give the statutory signals when this autospeeder appreached this crossing. It had the common-law duty to exercise due care. The instructions required them to give reasonable warning. In Chicago & A. R. Co. v. Dillon, 123 Ill. 570, on p. 579, it is said: “Without regard to the statute, it is the duty of those having charge of trains to give notice of their approach at all points of known or reasonably apprehended danger.” We followed and applied this to a case where a machine similar to this autospeeder was being propelled upon a railroad in Illinois Cent. R. Co. v. Scheffner, 106 Ill. App. 344, and that was affirmed in 209 Ill. 9, although that point was not specially discussed by the Supreme Court. This was also applied in Schneider v. Chicago Terminal Transfer R. Co., 151 Ill. App. 202. Bennett’s Crossing was a dangerous place, and we think the court below properly held that defendant was required to give reasonable warning of the approach of this autospeeder, hidden as it was by the mound of earth and shrubs and weeds.

It is argued that the court, by its instructions, should have defined what would be reasonable warning. This contention is denied in Devine v. Northwestern El. R. Co., 265 Ill. 641. Plaintiff’s instruction No. 7 is criticised, but it is supported by what we say in McDonell v. Lake Erie & W. Ry. Co., Gen. No. 6,451, post, p. 442, in which we file an opinion this day.

While the declaration is good after verdict, the instructions given for plaintiff were before verdict and they referred to plaintiff’s case and to the declaration in a manner that was very questionable where, as here, the declaration was incomplete in its allegations of due care by the plaintiff. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544; Bale v. Chicago Junction Ry. Co., 259 Ill. 476. In view of the language of these instructions and of other language in defendants given instructions, we might not reverse on this ground, but we call attention to it because, on another trial, the declaration should he amended or the instructions should be so guarded as in each to require the exercise of due care by the driver of the automobile, both as he approached the railway and as he drove upon the crossing. This is important here, because it is a very close question of fact whether the driver of the automobile did exercise the due care required of him under the circumstances.

The judgment is therefore reversed and the cause remanded.

Reversed cmd remmded.


text:
    Clara Birkel, Appellee, v. John R. Powers, Appellant.
    Gen. No. 6,428.
    (Not to he. reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 7, 1917.
    Rehearing denied October^ 4, 1917.
    Statement of the Case.
    Action by Clara Birkel, plaintiff, against John B. Powers, defendant, for breach of promise of marriage. From a judgment for plaintiff for $10,000, defendant appeals.
    Cameron & Cameron and Albert E. Isley, for appellant.
    Weil & Bartley, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Breach of marriage promise, § 20 —when evidence shows promise of marriage. Evidence held sufficient to warrant a finding that defendant promised to marry plaintiff, in an action to recover for breach of such promise.

2. Breach of marriage promise, § 29*—when verdict is not excessive. A judgment for $10,000 held not excessive, in an action for breach of promise of marriage, where defendant owned $40,000 worth of property and plaintiff had lived with him many years and nursed him and personally attended him in serious illness.

3. Breach of marriage promise, § 18*-—when evidence of payments by plaintiff for household expenses out of her own,funds is admissible. Testimony, in an action for breach of promise of marriage, of payments by plaintiff out of her own funds for household expenses while she and defendant were living together and of what defendant did not pay, held inadmissible under the common counts of the declaration as introduced but admissible upon withdrawal of such counts as tending to show and illustrate the relations of the parties.

4. Evidence, § 160*—what is not proof of attempt to effect a compromise. A question on redirect examination of plaintiff’s witness, after sharp cross-examination to show the witness was unfriendly to defendant, whether witness had gone to plaintiff at a certain time for the purpose of trying to get plaintiff in the interest of defendant to drop the suit, to which witness hnswered he had, held to be proper and not proof of an attempt by defendant to effect a compromise, as witness was not asked if he went by defendant’s authority or what he said and he did not so testify.

5. Appeal and error, § 1514*—when statement of counsel not reversible error. A statement by plaintiff’s counsel to the jury that the evidence showed that defendant’s conduct was monstrous, in an action for breach of promise of marriage, held not prejudicial error in view of the admitted facts in the case.

6. New trial, § 102*—when not granted on ground of newly-discovered evidence. An affidavit of a witness’ husband, with whom she was not then living, tending to controvert her testimony as to a certain conversation, when she had testified he was present at a time when they were living together, held insufficient to warrant a new trial on the ground of newly-discovered evidence, in an action for breach of marriage promise, where, if such testimony by him were admitted, it would be largely outweighed by other testimony already in the case, and where the affidavits of others available in support of his affidavit were not procured.


text:
    Fred Sauer, Appellant, v. Isaac Cohien and Rachel Cohien, Appellees.
    Gen. No. 6,438.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Pleading, § 153

      —when affidavit of merits is insufficient. An affidavit of merits by defendants that they believed they had good defense to the whole of plaintiff’s demand, held good under the Practice Act prior to July 1, 1907, hut insufficient under section 55 of the present Practice Act (J. & A. If 8592), in not stating the nature of defense.
    2. Pleading, § 313*—when affidavit of merits is insufficient because not swearing as to truth of specified items. An affidavit of merits by defendants’ attorney and agent that he believed defendants had good defense to the whole of plaintiff’s demand and stating that defendants would give in evidence that plaintiff was indebted to defendants at commencement of the action in a certain amount composed of certain specified items and that such amount arose out of plaintiff’s demand, held insufficient under section 55 of the Practice Act (J. & A. If 85.92), in not swearing to the truth of the specified items.

      Appeal from the County Court of Kane county; the Hon. S. N. Hoover, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed August 7, 1917.
    Statement of the Case.
    Action by Fred Sauer, plaintiff, against Isaac Cohien and Rachel Cohien, defendants, to recover for rent due. -From a judgment for defendant for costs upon granting of motion to dismiss for want of prosecution, plaintiff appeals.
    Healy & Beverly, for appellant.
    Arthur L. Paulson, for appellees; R. S. Egan, of counsel.

      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.

   Mr. Justice Dibell

delivered the opinion of the court.

3. Pleading, § 153 —when affidavit of merits insufficiently specifies items of set-off and recoupment. An affidavit of merits held insufficient in specifying items of set-off or recoupment, in an action for rent of a store building.

4. Pleading, § 367*—when affidavit of merits should he stricken from files. A motion to strike defendants’ affidavit of merits from the files and enter judgment for plaintiff for the amount stated in his affidavit of claim, held improperly denied, unless leave should be obtained to file a new affidavit of merits, where such affidavit was insufficient in not swearing to the truth of the items of set-off or recoupment specified therein and in the statement therein of such items, as such affidavit conclusively admitted defendants owed plaintiff the amount stated in his affidavit.