text:
    People of the State of Illinois, ex rel. Moritz Friend et al., v. William A. Wieboldt et al.
    Gen. No. 13,543.
    1. Mandamus'—when does not lie to compel city to remove obstruction from vacated alley. Held, that mandamus was properly refused where the petition sought to compel a city and individual defendants to remove an ohstruction from an alley which had been formally vacated by ordinance.
    2. Mandamus—discretionary power of courts with respect to ordinance. The writ of mandamus is not a writ of absolute right, but is a writ to he granted or withheld in the exercise of a sound judicial discretion in view of all the circumstances.

      3. Ordinance—how far courts may consider. The motives of a council in passing an ordinance are not the subject of judicial inquiry, but the purpose of the ordinance is a proper subject of such inquiry.

      Mandamus. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed December 24, 1907.
    Winston, Lowy & McGinn, for appellants.
    Clyde L. Day and George W. Miller, Loesch, Scofield & Loesch, for appellees; Edward J. Brundage, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The city of Chicago, July 20, 1903, passed an ordinance which provided that a certain part of a certain alley in said city be vacated. Appellants filed, March 7,1906, in the Circuit Court, a petition against the city of Chicago, certain officers thereof, and Wieboldt and Hansen, defendants, for a writ of mandamus to compel said defendants to remove an obstruction from that part of said alley which the ordinance in terms vacated.

The defendants filed answers, to which petitioners filed replications. The cause was submitted to the court upon an agreed statement of facts and a final judgment rendered dismissing the petition, from which judgment petitioners appealed.

The block in question is bounded by Milwaukee avenue, Ashland avenue, Bauwan street and Elk street. Milwaukee avenue and Bauwan street run parallel with each other and about 216 feet apart. The alley in question, as originally laid out, ran through the block parallel with said avenue and street from Elk street to Ashland avenue. Wieboldt was, when the ordinance was , passed, the owner of lots 5 to 10 and 44 to 50, in said block, lots 5 to 10 fronting on Bauwan street, and lots 44 to 50 on Milwaukee avenue, and said lots 5 to 10 lying directly across the alley from said lots 45 to 50. He then was the owner of a large building on said lots fronting on Milwaukee avenue, and of another building on lots 6 and 7 fronting on Bauwan street, in which buildings Wieboldt and Hansen carried on a department store. The part of the alley vacated was that part between lots 6, 7, 8, 9 and part of 10 and the lots of Wieboldt directly across the alley. The ordinance provides that Wieboldt shall accept the same within thirty days, and further provides that, “in consideration of the vacation of said alley and in lieu thereof,” the said Wieboldt shall dedicate for public alleys the southeasterly sixteen feet of lot 5 and the southeasterly sixteen feet of lot 10; and as a further consideration for the vacation of said alley and the right thereunder granted to said Wieboldt, said Wieboldt is required to pay one-fourth of the expense of paving with brick pavement part of Bauwan street; and as a further consideration for the privileges conferred by this ordinance, said Wieboldt shall pay to the city $100 annually, and execute a bond in the sum of $5,000 conditioned upon his carrying out the provisions of said ordinance and hold the city harmless from damages by reason of the passage and enforcement of the same. Wieboldt accepted the ordinance and has complied with its provisions. He dedicated to the public for public alleys those portions of lots 5 and 10 which the ordinance provided he should dedicate, the city accepted the same and the alleys so dedicated have since been used by the public.

In 1903, after the passage of said ordinance, the acceptance of the same by Wieboldt and the dedication of said two alleys by him, Wieboldt, under a permit granted him by the city, constructed a large building on said lots 8, 9, that part of 10 not dedicated for an alley, and that part of said alley vacated in terms by said ordinance, and thereby connected said new building with his said old buildings and made one continuous building, which has since been occupied as a store by Wieboldt and Hansen. Said new building cost Wieboldt $40,000.

The present alleys afford access to the rear of every lot in the block except those covered by said building, but to pass from Elk street to Ashland avenue one must follow the old alley to lot 5, then go through the new alley to Bauwan street, along Bauwan street to the entrance to the new alley which was formerly a part of lot 10, along that alley to its intersection with the old alley and along that alley to Ashland avenue.

A municipal corporation has power to vacate an alley. It has no power to license or permit an obstruction in a street or alley. The cases relating to obstructions of an existing street or alley have no application to the question here presented, which relates to the right to compel the removal of an obstruction in that part of an alley which has in terms been vacated by ordinance. .

.The motives of the council in passing the ordinance in question are not the subject of judicial inquiry, but the purpose of the ordinance is a subject of such inquiry.

We do not think that the facts agreed upon in this case warrant the conclusion that the ordinance was passed for the sole purpose of enabling Wieboldt to occupy that part of the alley vacated. It required Wieboldt to dedicate and he did dedicate two new alleys. Whether the alleys so dedicated, taken in connection with Bauwan street and those parts of the old alley not vacated, were as useful and beneficial to the public as the old alley was, we think, a question for the council. The rights of the public were not lost sight of. Wieboldt was required not only to dedicate the two new alleys, but to pave a part of Bauwan street and to pay to the city $100 per annum.

The ordinance was an affirmative act by the council of the city of Chicago under which the situation has been changed, permanent improvements made, money paid to the city and other money expended in paying a public street of the city. The relators cannot demand the writ of mandamus as an absolute right, but it is to be granted or withheld in the exercise of a sound judicial discretion in view of all the circumstances.

In view of all the facts and circumstances, we think the court did not err in denying the writ, and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Anna Alchenburger et al. v. Freundschaft Lodge No. 72, D. O. H., et al.
    Gen. No. 13,564.
    Secret society—when seceders from, not entitled to fund of. Members of a lodge who secede therefrom and form another organization have no right to the funds of such lodge if the same represents a branch of a larger organization to which it owes allegiance, where such lodge continues in existence, recognized by the larger organization, with enough members to constitute a lodge—its proceedings being regular.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavabagh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Decree modified.
    Opinion filed December 24, 1907.
    Ammen, Humphrey & Joyner, for appellants.
    Sol. Levisohn, for appellees; Israel Cowen, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The controversy in this case is over the funds, records and property of Freundschaft Lodge, No. 72, Deutscher Orden der Harugari, known as D. O. H., on September 18, 1904, and the right of said lodge or any of the complainants to an injunction restraining Freundschaft Lodge, No. 1, Hertha Schwestern von Illinois, known as H. S. I.; and the other defendants from using or employing the words “Freundschaft Lodge,” “Hertha Schwestern” or “Hertha.”

Fredericka Beyer filed in the Superior Court her amended bill of interpleader, alleging that funds of said lodge amounting to about $2,000 were in her possession; that a large number of the members of said lodge had seceded therefrom and incorporated a lodge under the name of Freundschaft Lodge, No. 1, Hertha Schwestern von Illinois; that both of said lodges claimed said funds. The defendants to said bill of interpleader were both of said lodges and the members of each respectively by name.

October 5, 1904, said Freundschaft Lodge, No. 72, D. O. H., filed its bill of complaint against said Freundschaft Lodge, No. 1, H. S. I., and others, and an answer to the bill, a cross-bill, an answer thereto were filed. A stipulation was entered into and filed in the cause, which provides that said Freundschaft Lodge, No. 72, D. O. H., fifteen members thereof therein named, the United States Grand Lodge, D. O. H., and the Grand Lodge of Hlinois, D. O. H., shall be deemed and treated as complainants in the original bill and defendants to the cross-bill; that said Freundschaft Lodge, No. 1, H. S. I., and ninety-seven members thereof therein named shall be deemed and treated as defendants to the original bill and complainants in the cross-bill; that all questions of pleading shall be waived; that all proofs shall be “admitted and considered by the court that would be admissible under any bill or cross-bill or answer or petition, whether original or amended, or supplemental or intervening, or in any other form, that might be filed in said suit, and the hearing and decision and decree of the court shall be upon the facts thus shown, without reference to any question or questions of pleading whatsoever, and such relief may be granted as may be warranted by the proof, irrespective of any and every question of pleading.” The stipulation does not mention the bill of inter-pleader, but the decree orders that said Beyer suit, No. 239,566, be consolidated and heard with said cause, and that all questions involved therein be determined by the decree in said cause.

The decree gives to said Freundschaft Lodge, No. 72, D. O. H., the property and funds in controversy, enjoins the defendants from employing the name “Freundschaft Lodge” or the name of “Hertha Schwestern” or “Hertha” in any combination whatever, dismisses for want of equity the cross-bill, and the defendants appealed.

From 1860 to 1869 there were in the United States two voluntary associations, each with a United States grand lodge and certain state grand lodges, the one known as the “Ancient Order of Harugari,” the other as the “Independent German Order of Harugari.” In January, 1869, the two associations, or orders, if it can be said that there were in the United States before 'such union two orders of Harugari, were merged and united into an order under the name of the “Deutscher Order der Harugari.” Since said union there has been but one United States grand lodge of Harugari, the Grand Lodge of the Order D. O. H. The United States Grand Lodge, D. O. H., has never been incorporated, but remains in existence as the supreme grand lodge of the order in the United States, to which all state grand lodges are subject.

The “Independent German Order of Harugari” granted a charter to the Illinois grand lodge of that order October 7, 1863, under which charter an Illinois grand lodge was organized, which met from year to year under that name, up to 1869.

March 26, 1869, the legislature of Illinois granted a charter to certain persons to become a corporation under the name of “The Grand Lodge of the Independent German Order of Harugari of the State of Illinois.” The “Independent German Order of Harugari” was, by the union of the two United States grand lodges, in January, 1869, merged in the Order D. O. H., and thereafter ceased to exist as an order. We think the evidence shows that the grand lodge of Illinois did not accept at its meeting in August, 1869, or after-wards, the special charter, but remained, until incorporated, under the general law, a voluntary association, and as such voluntary association became the Illinois Grand Lodge, D. O. H. It has, under that name, continued to meet each year since 1869, and has been and is recognized by the United States Grand Lodge, D. O. H., as the Illinois Grand Lodge of the Order D. 0. H.

It is not contended that there have been at any time in Illinois two associations or organizations, each claiming to be the Illinois Grand Lodge, D. O. H. The controversy as to the Illinois grand lodge of the order relates only to the question of the incorporation of that lodge.

In 1873 the grand lodge of Illinois attempted to incorporate under the general law by the name of “Grand Lodge of the German Order of Harugari of Illinois. ’ ’ In 1877 it caused a corporation to be organized under the general law by the name of the “Gross-loge des Deutschen Ordens der Harugari des Staates Illinois. ” In 1886 proceedings were taken to consolidate the corporation created "under the special act of 1869, with the corporation created under the general law in 1877. As to the validity or effect of the attempts to incorporate the grand lodge of Illinois under the general law, or of the consolidation proceedings had in 1886, we do not deem it necessary to inquire or determine further than to say that, in our opinion, for the reasons already stated, the consolidation proceedings of 1886 do not confer, either upon the grand lodge of Illinois, or the complainant lodge, the special powers and privileges mentioned in the special act of 1869. The rights of the parties to this controversy to the funds and property in question depend upon the law of the Order D. O. H., and not upon any act of the legislature of Illinois.

Complainant lodge was chartered in 1895 by the Grand Lodge of Illinois, D. O. H., .under authority conferred on that lodge by the United States Grand Lodge, D. O. H., and with the consent of the United States grand lodge. It owed allegiance to the grand lodge of the state and to the United States grand lodge. Each member of the lodge, on becoming a member, consented to be governed by the law of the order, and the question here is not which party in complainant lodge had the majority at the time the defendant members thereof seceded from said lodge, but is, which is right according to the law by which the lodge and its members consented to be governed.

The Hertha grade or degree for women was provided for by the constitution prescribed by the United States Grand Lodge, D. O. H., for state grand lodges, which provided, in substance, that the provisions of the constitution for men’s lodges should, so far as applicable, apply to Hertha lodges. Under that constitution, when a charter of a subordinate lodge is surrendered, it is the duty of the officer in charge of the funds, records and property of the lodge to deliver the same to the state grand lodge, and it is the duty of the state grand lodge to keep such funds separate and apart from the funds of such grand lodge for three years, within which time, upon petition of five or more former members of such lodge, the charter may be returned, and with it “the effects which said lodge had at the time of its dissolution.”

September 18, 1904, at a meeting of complainant lodge, a resolution that “We sever our connection with the Order of Harugari” was adopted by the votes of all the members but five, according to the minutes, or six or seven, according to the testimony of some witnesses. The majority then, at the same meeting, organized Freundschaft Lodge, No. 1, and elected officers, and afterwards organized and incorporated Freundschaft Lodge, No. 1, Hertha Schwestern von Illinois. Later they, with others, organized and incorporated the Dlinois Grand. Lodge of Hertha Sehwestern von Illinois. We think that the action of the majority was evidence of their intention to withdraw from complainant lodge and from the Order of Harugari, that by such action they ceased to be members of complainant lodge and of the Order D. O. H.

The proceedings of the minority who remained members were, so far as they appear, regular. Their number exceeded the number of members required to form a lodge; they at once elected officers, the charter was delivered to them as the lodge, and they have ever since been recognized by the grand lodge of the state and by the Grand Lodge of the United States, D. O. H., as Fruendschaft Lodge, No. 72, D. O. H.

We think that the chancellor properly held that complainant lodge was entitled to all the funds, records and property of said lodge at the time of the separation of the defendants therefrom, and properly dismissed the cross-bill.

So much of the decree as enjoined the defendants from using or employing the name of “Freundschaft Lodge,” or the name of “Hertha Sehwestern” or “Hertha” cannot, we think, be sustained. Complainants have no exclusive right to either the word “Freundschaft” or the word “Lodge,” or to the two in combination, or to the word “Hertha.” No right of complainants, or any of them, was violated or interfered with by giving to the new order the name “Hertha Sehwestern von Illinois,” or to the new lodge the name “Freundschaft Lodge, No. 1, H. S. I.”

So much of the decree as restrains the defendants from “employing the name of ‘Freundschaft Lodge’ or the name of ‘Hertha Sehwestern’ or ‘Hertha’ in any combination whatever” will be reversed; in all other things the decree will be affirmed. The costs of this court will be adjudged against the appellees, other than the United States Grand Lodge, D. O. H., and the Hlinois Grand Lodge, D. O. H.

Decree modified.


author: Mr: Presiding Justice Baker

text:
    David Sattler v. Walter D. Oliver et al.
    Gen. No. 13,579.
    1. Recovery—what essential to, where reliance is placed upon executed contract. In order to recover under an executed contract, it is essential that the plaintiff show, upon his part, full performance of such contract.
    2. Principal and agent—when contract for sale and conveyance unauthorized. A contract for the sale and conveyance of real estate is beyond the authority of the agent to execute where it makes provision with respect to the furnishing of an abstract or a guaranty policy, etc., the letter of authority making no provision therefor.
    3. Real estate commissions—when hroleer not entitled to recover. A broker is not entitled to recover commissions upon a sale negotiated if the terms of sale made by him upon behalf of his principal are in excess of the authority conferred upon him by such principal.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed with finding of facts.
    Opinion filed December 24, 1907.
    Bosenthal & Hamill, for appellant; Charles Goodman, of counsel.
    Todd & Morrison, for appellees.
   Mr: Presiding Justice Baker

delivered the opinion of the court.

In an action of assumpsit by appellees against appellant to recover commissions or compensation for services alleged by them to be due to them from appellant for selling certain real estate of the appellant, the cause was submitted to the court and a judgment rendered for the plaintiffs for $1,500 and the defendant appealed.

Monday, March 19, 1906, the following instrument was signed by defendant and delivered to the plaintiffs:

“March 19, 1906.
Messrs. Oliver & Company,
110 Dearborn St., Chicago;
Dear Sirs: You are hereby authorized to sell my State Street property—No. 1606-1608, otherwise described as Lot 4, in Block 1, in Canal Trustees ’ New Sub. of the Southeast frac. % Sec. 21, Township 39 North, Range 14, East of the 3rd P. M., being 50 X 150 feet in dimensions at the price of $50,000.00, payable 14 cash balance 1, 2 and 3 years at 5% interest.
In case of a sale at this price I agree to pay you the sum of $1500.00 for your services.
This authority is good for one week from date hereof.
Tours truly,
David Sattler.”

As early as Friday, March 22, Lawrence Heyworth stated to plaintiffs that he was willing to purchase said property at the price mentioned in said instrument, but did not want his name disclosed. He suggested that the contract be made with his chief janitor, George F. Mahler, and Oliver suggested that it be made with Sprague Moore, an employe of plaintiffs. A contract of sale between defendant and Moore was then prepared and taken to defendant, who said that he would have the instrument examined by bis lawyer and call at plaintiffs ’ office at one 0 ’clock. He did not call at that time nor until some days afterwards. Saturday, March 24, Heyworth sent Mahler to plaintiffs’ office to have a contract made with Mahler in place of Moore, and thereupon a written contract for the sale of said lands by defendant to Mahler was prepared by plaintiffs, signed by them in defendant’s name as, “his duly authorized agents,” and by Mahler. The fact that Heyworth was interested in said contract or that Mahler was acting for him was not disclosed to defendant before the trial of this cause.

The rights of the parties depend upon the express contract made by the letter of defendant of March 19, and its acceptance by plaintiffs. The authority of plaintiffs to act for defendant is derived from that contract alone. Plaintiffs in this action relied upon an executed contract, and they could recover only by showing a full performance of the contract on their part. Lawrence v. Rhodes, 188 Ill. 96.

The letter of March 19 provides that, “in case of a sale at this price, I agree to pay you $1,500 for your services.”

The instrument signed March 24, 1906, is in terms a contract between defendant and Mahler. It is immaterial that Mahler may have been acting for Hey-worth, or that Heyworth may have been willing to buy the property at the price and upon the terms prescribed in the letter of March 19. Heyworth was informed by telephone of the signing of the instrument March 24, and that instrument must be held to contain and express the contract of purchase he was willing, to enter into. The contract with Mahler has never been ratified by defendant. On the contrary, it was promptly repudiated, by him, on the ground, among others, that it differed materially from the contract of sale defendant had authorized,plaintiffs to make for him in and by the letter of March 19. The authority of plaintiffs under that letter was to sell the property at the price and upon the terms therein stated. If they ever made a sale of the property for the defendant, such sale was made in and by the instrument executed March 24. If that instrument was not within their authority, was not binding upon defendant, then plaintiffs made no sale of defendant’s property and had no right of action against him for any services they may have rendered in attempting to effect such sale.

In passing upon the question whether the instrument of March 24 was binding upon the defendant, we shall only consider the question whether it was, in its provisions, such a contract of sale as the plaintiffs were authorized to make for defendant by his letter of March 19. The letter contains ten printed lines, the contract covers four printed pages. We shall not attempt to state all of its provisions, which we think are not within the authority given by defendant to plaintiffs. The authority given to plaintiffs was to sell said property, “at the price of $50,000, payable 34 cash, balance in 1, 2 and 3 years at 5% interest.”

The contract recites that Mahler has paid $2,000 as earnest money and agrees to pay “within five days after the title has been examined and found good, or accepted by him, said insurance premium and the further sum of ten thousand five hundred ($10,500.00) Dollars, at the office of-Chicago, provided a good and sufficient general warranty deed, conveying to said purchaser a good and merchantable title to said premises (subject as aforesaid), shall then be ready for delivery. The balance to be paid as follows: Twelve thousand five hundred (12,500) dollars on or before one (1) year from date of delivery of deed. Twelve thousand five hundred (12,500) dollars on or before two (2) years from date of delivery of deed; twelve thousand five hundred (12,500) dollars on or before three years from date of delivery of deed with interest from the date of delivery of deed at the rate of five (5) per cent.”

It further provides: “Should said purchaser fail to perform this contract promptly on his part, at the time and in the manner herein specified, the earnest money paid as above, shall, at the option of the vendor, be retained by the vendor as liquidated damages, and this contract shall thereupon become and be null and void. Time is of the essence of this contract, and of all the conditions hereof,” although there is no mention of liquidated damages in the letter of authority.

It further provides that, “A complete merchantable Abstract of Title, or merchantable copy, brought down to date hereof, or merchantable Guaranty Policy, shall be furnished by the vendor within a reasonable time, which abstract shall, upon the consummation of this sale, remain with the vendor, or his assigns, as part of his security, until the deferred installments are. fully paid. The purchaser or his attorney, if an abstract or copy be furnished, shall, within ten days after receiving such abstract, deliver to the vendor or his agent, (together with the abstract), a note or memorandum in writing, signed by him or his attorney, specifying in detail the objections he makes to the title, if any; or if none, then stating in substance that the same is satisfactory.. In case material defects be found in said title, and so reported, then if such defects be not cured within sixty days after such notice thereof, this contract shall, at the purchaser’s option, become absolutely null and void, and said earnest money shall be returned,” although there is no mention of either abstract or guaranty policy in the letter of authority.

It further provides that, “This contract and the said earnest money shall be held by Oliver & Company for the mutual benefit of the parties concerned, and after the consummation of the sale.... he.... shall be at liberty to retain the cancelled contract permanently ; and it shall be the duty of said Oliver & Company in case said earnest money be retained as herein provided, to apply the same, first, to the payment of any expenses incurred for the vendor by his agent in said matter, and second, to the payment to vendor’s broker of a commission of $1,500 for his services in procuring this contract rendering the overplus to the vendor.”

All of the provisions of said contract above set forth are, in our opinion, outside of the authority conferred upon plaintiffs by the letter of authority.

In Monson v. King, 144 Ill. 248, the authority was to sell for one-half cash, balance in one, two and three years, with interest at six per cent.; and it was held that such authority did not authorize the making of a contract by which such payments might be made on or before such times, at the option of the purchaser, and that the owner of the land, “had the right to prescribe the terms upon which his land should be sold, and having done so, in express terms the stipulation must be'substantially followed.” To same effect are: Kozel v. Dearlove, 144 Ill. 23; Hoyt v. Shipherd, 70 id. 309; Speer v. Craig, 16 Colorado, 478.

In Baskema v. Searle, 116 Iowa 374, where Snyders, the agent, inserted on an alleged contract of sale a provision that the owner, his principal, should furnish an abstract of title, it was said (p. 377): “The terms of the alleged sale were not such as Snyders was authorized to make. There was no agreement by defendant to furnish an abstract of title at his own cost, * * *. Snyders’authority was limited to the precise terms given by defendant.”

To the same effect are: Crosthwaite v. Lebus, 146 Ala. 525; Hunt v. Tuttle, 125 Iowa 676.

We think that upon their own showing, plaintiffs cannot recover in- this case. They made a contract of sale different from the one they were authorized to make. There is no claim that defendant ratified the contract plaintiffs assumed to make for the defendant.

The judgment will be reversed with a finding of facts and the cause will not be remanded.

Reversed with finding of facts.


author: Mr. Justice Freeman

text:
    Union Stock Yards Transit Company v. Michael E. Franey.
    Gen. No. 13,392.
    1. Licensee—who is not mere. A person upon premises for the purpose of tending his live stock, temporarily stored thereon, is not a mere licensee where such premises have been specially provided by a company organized for its own profit as a place for temporary storage of live stock and as a place further where buyers and sellers of such live stock may meet and transact their business, but such a person is deemed to be upon the premises in question at the invitation of the owner thereof.
    2. Contbibtjtory negligence—what not, as a matter of law. It is not contributory negligence for the owner of live stock temporarily stored at a place provided for such purpose, to enter upon such premises in the dark for the purpose of feeding his stock.
    Smith, J., dissenting.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John L. Healy, Judge, presiding.

      Heard in the Branch Appellate Court at the October term, 1906.
    Affirmed.
    Original opinion filed November 8, 1907.
    Rehearing denied and opinion modified and refiled December 13, 1907.
    Statement by the Court. This is an action in which appellee recovered a judgment .for personal injuries, from which this appeal is taken.
    Appellee, a farmer at or near Healy in this state, shipped a carload of hogs consigned to the National Live Stock Commission Company at the Union Stock Yards, Chicago. This was November 12, 1901. The hogs reached Chicago the morning of November 13th, and were unloaded at or about six o’clock a. m. into a chute or pen, and there, it is said," delivered by appellant to the consignee. Employes of the consignee, it is claimed, drove the hogs up an incline or covered passageway to the second floor of the hog house belonging to appellant and thence about two or three hundred feet along a passageway between tiers of pens on the second floor to pen 56, in which they were placed.
    Appellee followed after the hogs from the chute to the pen. One of the men who had driven the hogs up was apparently still there, but was about to leave and did so. Appellee was left alone and concluded, it is said, to give his hogs a drink of water. He states that he does not remember how he got into the pen, and it does not appear whether he went in with the hogs or climbed in afterward. He made his way through the hogs to the watering trough, but was unable to reach the faucet which had been turned away from the watering trough of that pen, apparently to put water into the trough of another pen, and as the hogs were pressing around him, it is said, he climbed over the fence and out of the pen and standing on the outside of the pen turned on the water. He says that he was facing the pen and standing on what he supposed was a floor. He remembers seeing the water flow and the hogs drinking. That is the last he remembers until he “woke up at the hospital.” He had fallen into a light and air shaft and was found shortly after, lying unconscious on the floor fourteen feet below. This air and light shaft was an opening of about three or five feet by sixteen feet, which had been made after the erection of the building, the space being taken oft pen 57 as originally constructed. The shaft was surrounded on all sides by fences enclosing the pens and about four feet high. There was a platform or ledge, being a portion of the former floor space left on two sides of the opening, which was not fenced off from the shaft. This floor was three feet wide on one side and from one to two feet wide next to pen 56 in which were appellee’s hogs. There is evidence tending to show that after the hogs were placed in the pens the gates were locked by appellant’s employes, who alone had the keys. The building, pens, feed and facilities were furnished and owned by appellant and the latter charged "for inspection, yardage, feed and the like.
    It was not unusual for owners of stock to come with it to the yards, where in many cases they looked after the feeding and watering, going about among the pens, comparing their own stock with that of other shippers and climbing over the fences into the various pens for such purposes. Climbing over was apparently the only way they could get into the pens, since the gates were kept locked by appellant. The latter did not buy or sell stock, but furnished facilities for those who did, for which it charged.
    Winston, Payne, Strawn & Shaw, for appellant; John Barton Payne and John D. Black, of counsel.
    Samuel Shops Page, for appellee; Cecil Page, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf "of appellant that appellee was not rightfully at the place where he was injured, that he had no business there and was at most a mere naked licensee; that the place was sufficiently lighted for the purpose for which it was used, and that appellant was not bound to anticipate that anyone would go there in the dark of an autumn morning, climb over fences and fall down a light shaft; that the light shaft was enclosed by a double board fence four feet high, the same kind of fence which enclosed the 2799 other pens in the hog house, that it was sufficiently guarded, that no other enclosure could have been provided unless the shaft had been closed, and that appellee was guilty of gross negligence which was the proximate cause of his injury.

As to the first of these contentions that appellee was a mere naked licensee to whom appellant owed no duty to keep the premises safe for his use, the general doctrine is stated in Bentley v. Loverock, 102 Ill. App. 166-168, quoting from Buzwell on Personal Injuries to be that “a mere naked license or permission to enter upon the premises will not create in favor of the person entering or impose upon the owner or tenant who grants the license an obligation to provide against dangers or accidents which may arise out of the existing condition of the premises, for the licensee goes upon the premises subject to all dangers attending his going and so enjoys the license subject to its concomitant perils. (Citing cases.) Thus the owner is not liable for injuries received by a licensee falling into an excavation left unfenced upon the land (Reardon v. Thompson, 149 Mass. 267) or by the existence of obstructions, such as logs lying in the path. Nor is the owner of a building bound to fence or enclose dangerous machinery contained in it for the protection of a licensee.” In the case of Gibson v. Leonard, 143 Ill. 182-189, cited by appellant as the leading Illinois case upon the subject, it is said that “the fundamenta:! inquiry in this case is whether or not appellee owed a duty to appellant to so construct, keep and maintain the elevator or hoisting apparatus as that it should he a safe means for his transportation from one story of the building to another. Actionable negligence or negligence which constitutes a good cause of action grows out of a want of ordinary care and skill in respect to a person to whom the defendant is' under an obligation or duty to use ordinary care and skill. The owner of land and of buildings assumes no duty to one who is on his premises by permission only and as a mere licensee, except that he will refrain from wilful or affirmative acts which are injurious.” The case is different, however, where a party is on the premises of another on lawful business in which both parties have an interest. Bennett v. R. R. Co., 102 U. S. 577-580. In such case an invitation may be implied and the licensee is not to be deemed as having gone there upon a bare permission. In such case when using due care for his own safety he has a right to assume that the owner has himself taken due care to maintain the premises in a reasonably safe condition for Ms use in the prosecution of their mutual business interests and relations. In Thompson on Negligence, p. 309, citing Carleton v. Franconia I. Co., 99 Mass. 216, it is said: ‘1 The rule wMch obtains here has been thus expressed by Gray, J., with Ms usual clearness and accuracy: ‘The owner or occupant of land is liable in damages to those coming to it, using due care at his invitation or inducement, express or implied, on any business to be transacted or permitted by Mm, for an injury occasioned by the unsafe condition of the land or of the access to it which is known to him and not to them and which he has negligently suffered to exist and has given them no notice of.’ ” Tutt v. Ill. C. Ry. Co., 104 Fed Rep. 741; Bennett v. R. R. Co., 102 U. S. 577-580. See also Elgin, Joliet & Eastern Ry. Co. v. Thomas, 215 Ill. 158. In that case it was said by the Appellate Court when the case was before it (115 Ill. App. 508-512) that “the appellant by accepting and hauling the cattle has furMshed strong presumptive evidence that there was some permission given and consent to the delivery of the same to it by its connecting lines. The owner of the cattle had implied consent of appellant to cross over the yards and look after his property.”

Applying these principles in the present case' it is not disputed that appellant provided the premises in question for its own profit to be used as a place of temporary storage of live stock shipped to Chicago for sale “and where buyers and sellers may meet, either in person or by their agents, and transact the business of buying and selling such live stock.” Am. L. S. Com. Co. v. The Live Stock Exchange, 143 Ill. 236. The hogs of appellee were placed in a pen for the use of which appellant charged him, and were securely locked in the pen, the keys being in possession of appellant’s employes. It was not the first time appellee had brought stock to appellant’s premises. He had been doing the same thing for quite a number of years. He was doing on this occasion when he followed the hogs to the pen what, according to the evidence, he had been in the habit of doing on prior occasions and what there is evidence tending to show other shippers were in the habit of doing. He met there on the morning in question another shipper who had hogs stored in an adjacent pen. There is evidence tending to show that appellant was in the habit of selling and furnishing to owners of stock, corn, hay, oats, etc., which it was necessary for the owner or his agent to feed to the stock. It furnished also facilities for watering the stock in the pens, and there is evidence to the effect that it did not itself ordinarily attend to either feeding or watering. Appellee in this case was injured, according to the evidence, while supplying his hogs with water by means of troughs and hydrants which appellant had furnished for the purpose. It is evident that if appellant furnished these facilities for the owner’s use in caring for his hogs it must be deemed to have extended by clear implication an invitation to appellee to use them. In Bennett v. R. R. Co., supra, Mr. Justice Harlan quotes with approval as follows: “One who comes upon another’s land by the owner’s permission or invitation has a right to expect that the owner will not dig a pit thereon so that persons • lawfully coming there may receive injury.”

It is claimed, however, that these facilities were not' furnished for the owner’s use, but for the use of employes expressly authorized to use them in caring for stock. There is considerable testimony as to the long-continued practice of shippers and owners of stock delivered at appellant’s yards and put in appellant’s pens, frequently to attend to their own stock and to visit pens where stock of other shippers was confined to inspect and compare character and quality of stock. It is claimed in appellant’s behalf that the admission of this evidence was reversible error. In appellant’s original brief the point was dismissed with a statement that it was not deemed necessary to cite authorities as the error was believed to be manifest. In an additional brief since filed, the question is argued at length. That the hogs were consigned to the commission company and were “handled and sold by” them is not apparently disputed. There were charges made by appellant covering, as a witness testifies, “freight as a general thing, yardage eight cents a head on hogs, feed charges at fifteen cents a head, for carload inspection and commission $6 a car. ’ ’ The feed was ordinarily purchased by the commission company, the consignee, from appellant, and by the commission company charged against the owner of the hogs upon settlement of accounts. There is evidence to the effect that “as a general rule” the animals are fed and watered by employes of the commission company to which they were consigned. It is urged in appellant’s behalf that charges were not made by appellant to the shipper but only to the commission company, the consignee, and that “the facilities were not furnished for the use of the owner but for the use of the consignee.” It was nevertheless' the owner who paid for these facilities so furnished to his agent, the consignee; and an employe of the commission company testified that he had seen a great many cattle and hogs unloaded and yarded and fed, “and I have seen a great many representatives, owners and shippers who are with them to shake up their hay and go in the pen and sprinkle the corn around so that the hogs would have better access to it.” The witness states that appellant placed no limitation that he knew of upon owners and shippers who accompanied their stock in doing those things, that he had seen appellee when “coming to the yard with stock” do things of that kind. There is considerable other testimony to the same effect, and also evidence tending to show that owners'could and did order and obtain feed directly from appellant which they were permitted to and did themselves feed to their stock. In our judgment this testimony tends to show more than a mere custom on the part of appellee and other shippers to go into their pens to look after, feed and water their stock. It furnishes evidence upon which the jury might properly find that appellant permitted and encouraged them in the practice, extending by implication an invitation to them to do so, an invitation accepted not only by shippers generally but, as there is evidence tending to show, by appellee himself prior to the accident in controversy. We are unable to see why this evidence was not competent for such purpose. The case differs materially from those cited by-.appellant’s counsel, of which Hickey v. B. & L. Railroad Co., 96 Mass. 429, is an illustration. In that case the plaintiff offered to show that it had been a practice of passengers in a smoking car to leave it by permission of a conductor only, just before it was uncoupled, and go upon the platform of a passenger car in front and to ride thereon into the station. The court said if they voluntarily took exposed positions with no action thereon nor inducement thereto caused by the managers of the road except a bare license by non-interference or express permission of the conductor, they take the special risks of that position upon themselves.” In the case at bar, however, the evidence tends to show, as we have said, an express invitation to appellee and other owners which was constantly acted upon without objection by appellant, to frequent the neighborhood of the pens containing their own and the stock of other owners. Elgin, J. & E. Ry. Co. v. Thomas, supra; Connell v. Southern Railway Co., 91 Fed. Rep. 466. In the case last cited it is said: “Beside the proof in reference to his dealings that evening with the employes in the yard office, there was other testimony tending to show that it was not unusual for shippers of stock to visit the yard office to expedite the transfer of their cars from the Georgia Bailroad to connecting lines. The proof tended to show that such was the custom in the yard office of the defendant railway company.”

It is urged that appellee was guilty of contributory negligence which was the proximate cause of his injury. "Whether it was negligent to leave a place open in the floor with no protection except the ordinary fence, four feet high, which surrounded all the pens, over which fences, as there is evidence tending to show, stockmen were in the habit of climbing to water and feed their stock at all hours when their stock came in, with nothing to indicate the presence of the opening-in what had formerly been a pen like the others, was a question of fact for the jury upon which their finding is adverse to appellant. Under the circumstances we do not regard the evidence which it is insisted shows appellee to have been guilty of contributory negligence as warranting interference with the verdict. Appellee testifies that he found it difficult from within the pen to turn the spout so as to cause the water to flow into the trough in the pen containing- his hogs, and so was led to climb over the fence. Here he stood a while after, as he states, starting the water to flowing into the trough,upon the unprotected edge of the opening, which in the darkness, he had not seen and of the existence of which he was unconscious. It appears that the opening in question occupied space which had been taken from what was formerly pen 57, adjoining pen 56 in which were appellee’s hogs, a circumstance which it is apparent might in the darkness have misled him to suppose that he was standing in safety upon the floor of pen 57, while he stood there watering his hogs. The case differs materially, we think, from those where an injured person has stepped negligently into an elevator shaft after opening an elevator door, some of which cases are cited in appellant’s brief. “What kind of protection could be used” asks appellant’s counsel, “against a man who, in the night time and in a place where he had confessedly never been before, would climb over a fence in the dark?” It suffices to say that, as evidence apparently undisputed tends to show, the fence over which appellee climbed was one of the fences bounding the pens, and that after climbing over it, he stood in the dark upon a part of the original floor of pen 57 left as a kind of ledge beside an unlighted air shaft, without any distinguishing fence or guard of any kind to give notice of its existence or prevent appellee from falling into it as he did. The question of contributory negligence was, so far as appears, properly submitted to the jury, and we discover no reason which could justify us in disturbing their finding.

No complaint is made as to the amount of the finding and judgment. No material error appearing in the record the judgment of the Circuit Court must be affirmed.

Affirmed.

Mr. Justice Smith dissenting.


text:
    Hamilton Crary v. Jones & Dommersnas Company.
    Gen. No. 13,560.
    1. Rescission-—what not ground for, of contract, of license. A contract licensing the use of a particular patent and providing a royalty cannot be rescinded unless it appears that the terms of such contract have been violated by the licensee.
    2. License—what constitutes waiver of provision of contract of. A provision in a contract providing for the payment of royalties, which requires the submission of sworn statements, is waived by the long-continued acceptance of unsworn statements without objection.
    Bill in equity. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed and remanded.
    Opinion filed December 24, 1907.
    Statement by the Court. Appellee filed a bill in equity, afterward amended, against appellant, seeking to declare a forfeiture of a license to manufacture patent “fret or scroll saws,” upon the ground that appellant had failed to make a sworn report of the number of such saws manufactured and sold by him during the' quarter ending January 1, 1904. The amended bill contained an allegation not found in the original bill, to the effect that appellant was largely indebted to appellee for royalties upon saws manufactured and sold under said license during said quarter.
    Defendant answered admitting that he had not made a sworn report for the period referred to, but averring that a report under oath had been expressly waived by complainant. The answer denied that any royalty was due for that quarter and averred that complainant had agreed with defendant on or about October 4, 1903, upon the amount of royalties to accrue upon sales made by defendant during the quarter preceding January 1, 1904, and defendant had paid complainant in advance the amount of royalties so agreed upon.

      The contract constituting the license referred to was made between the parties of date December 11, 1901. It licensed defendant to manufacture “fret or scroll saws” under and during the life of patents owned by complainant, and to sell them in the United States and elsewhere. The defendant agreed to make full and true returns to complainant “under oath upon the tenth days of January, April, July and October in each year, of all sales made by him of saws containing the patented improvements aforesaid,” and to pay “as a royalty fee” six per cent, upon the gross sum collected or received by him on such sales. Upon failure of defendant to make returns or to make the payments of license fees for a period of thirty days after the dates named, complainant might terminate the license ' by serving a written notice to that effect. The contract further provided that on and after one year from date of contract defendant should manufacture and ‘ ‘ sell not less than 6,000 cable and ratchet saw frames or pay royalty on that number of frames if he has manufactured and sold less than that amount.” .
    It appears from the evidence that from date of the contract until about November 12, 1903, defendant transacted business with the complainant company through its then president, one John P. Dommersnas, that in the course of business defendant' had sold goods to complainant during the quarter ending the first-of October, 1903, for which the latter was indebted to defendant in a sum equal to the royalty which would otherwise have been payable, and that on the 1st of October, 1903, there was nothing due from defendant. to complainant. On the 4th of that month—October, 1903—complainant’s president asked defendant to advance the royalty for the next quarter ending January 1, 1904, stating that complainant was in need of the money. The royalty for the preceding quarter had been $34.79 and complainant by its president estimated that the probable sales for the next, quarter would be about the same. It was agreed, therefore, between them that the amount to be paid in advance as royalty for that quarter should be fixed at $35. Complainant by its president thereupon further agreed with defendant that in consideration of the payment of that sum in advance complainant would waive payment of any additional royalty on unsold saws constituting the difference between the number sold and the 6,030 upon which by the terms of the contract defendant would otherwise be required to pay royalty, whether he had manufactured and sold that number or not. Defendant thereupon advanced and paid complainant the $35 agreed upon, in full of royalty for the quarter ending with December, 1903. This payment, together with the $34.79, royalty for the preceding quarter, which had been paid in merchandise purchased by complainant from defendant, a total of $69.79, was receipted for in writing by complainant “in full of royalty account to January 1, 1904. ($69.79).”
    Afterward complainant’s then president Dommersnas sold out Ms interest in the complainant company to one A. James, and resigned as president and treasurer. James succeeded him in those offices. Upon the eighth of December, 1903, the complainant wrote defendant notifying Mm of tMs change and saying, “We desire a report showing what has been done under your contract with the company up to December 1, 1903. Hereafter until further notice all business will be transacted with the president, Mr. James.” To tMs, defendant replied of date December 10, 1903, “The only statement we have to make is that the royalty has been paid up to January 1, 1904,” adding that he would be pleased to have Mr. James call, and felt it would be mutually advantageous to become acquainted with each other. Subsequently complainant’s president and secretary did call. Defendant testifies, that he showed them the receipt for royalties to January 1, 1904. TMs was demed before the master by the complainant’s president and secretary. Whether shown to them at that time or not, the secretary testifies that defendant told them the royalties had been paid up to the first of January, 1904, and the president states they did not ask to he shown the receipt. Upon February 13, 1904, complainant by its new president served upon defendant a notice to the effect that the latter had violated the contract and hy reason thereof the company elected to terminate it. Defendant was further notified “not to hereafter manufacture, sell or in any manner deal in any of the patented devices referred to in said contract.”
    There is evidence tending to show that after the present suit was brought complainant’s secretary called on defendant and asked him if he would enter into a new contract providing for a larger royalty and for a larger sale per annum if complainant would withdraw its suit. It further appears that in a suit brought by said James against one of complainant’s former stockholders it was decreed that James was owner of six-sixteenths of the patent and that before the present suit was brought said James personally sued defendant for six-sixteenths of the royalties, which suit was still pending when the present suit was begun.
    The master found that while there was nothing due complainant for royalties on saw frames manufactured for the term covered by the receipt for $69.79 before referred to—that is, up to January 1, 1904,— defendant nevertheless was not relieved from the necessity of making a written statement on or before January 10, 1904, as to the saw frames manufactured and sold by him for the preceding quarter. The master therefore reported that complainant was entitled to have defendant’s license forefeited and also to have him enjoined from manufacturing the saw frames and devices referred to in the contract. The court entered a decree accordingly, canceling the .license, enjoining defendant and adjudging that he pay the costs. From that decree the defendant appeals.
    Fred D. Jackson and George N. B. Lowes, for appellant.

      Nathan E. Utt and William H. Utt, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

The apparent ground upon which the Superior' Court canceled the contract in controversy and restrained appellant from manufacturing saws thereunder is, that the latter made no report such as the contract provides for in response to the request made by appellee of date December 8, 1904. It is contended in ■behalf of appellant that appellee had waived a report under oath for the quarter preceding January 1, 1904.

In the written request referred to appellee said, “We desire a report showing what has been done under your contract with the company up to December 1, 1903.” In the contract appellant had agreed to make full and true returns under oath upon the tenth days of January, April, July and October in each year, of sales made, but he was under no contract obligation to make at that time nor at any time a return up to December 1, such as appellee called for. If he made due return under oath on the tenth of October, 1903, or if such return under oath had been waived by appellee, he was under no contract obligation to make any further return until the tenth of January, 1904. If that return also had been made or waived, appellee had no contract right to require a return under oath until the tenth of April following. In any event, appellant was strictly within his contract right in regarding appellee’s request for a report showing what had been done under the contract up to December 1, 1903, as a mere informal request for information and in replying as he did that “the only statement we have to make is that the royalties had been paid up to January 1, 1904.” That this reply was in good faith and at least without apparent intention to give offense would seem to be indicated by the context of the letter which invited appellee’s new president to a friendly call, suggesting that it would be “to our mutual advantage to become acquainted with each other. ’ ’ Subsequently appellee’s new president and secretary did call on appellant and asked to see his books. Appellant is said to have replied that he had no books to show him. In refusing also to show his books appellant seems to have been acting within his rights. The contract gave appellee no authority to inspect appellant’s books of account, and such a demand would not in all probability be favorably regarded by any business man, especially when made by one who had a suit pending against him.

Without further notice or parley appellee, on the thirteenth of February, 1904, notified appellant that appellee had elected to terminate the contract and directed bim not to manufacture thereafter or sell any of the patented devices referred to therein. So far as appellee then knew, appellant had made all due returns prior to the election of Mr. James g,s president of the company. The latter testifies that this may have been done, and that his predecessor Mr. Dommersnas had then “attended to all the business of the company just as I do now.” Appellant, however, testified and the fact is not questioned, that it had not been customary for him to make returns under oath and he had not done so, that the appellee had received his reports not under oath without any question, that the question as to returns under oath was never raised, that he had always paid appellant the amount due it under the contract, that he had paid these amounts to Dommersnas, then appellee’s president, and that he had never had any business dealings with reference to the contract with any other officer of complainant prior to January 1, 1904. Notwithstanding this uncontradicted testimony it is declared by appellee’s .counsel that there is an entire absence of any evidence tending to show that appellee waived the making of reports under oath. This is the material question in the case.

It is axiomatic that forfeitures are not favored by the law, nor regarded by courts with any special favor. King v. Radeke, 175 Ill. 72-77; Flicek v. High Court C. O. of Foresters, 90 Ill. App. 314-352; Palmer v. Ford, 70 Ill. 369-377. As said in the last cited case: “The party who insists upon a forfeiture must make clear proof and show he is entitled to make such declaration. It is a harsh way of terminating contracts and he who insists upon making such declaration cannot complain if he is held to walk strictly within the limits of the authority which gives the right.” In order to enforce the forfeiture sought, appellee must show a clear right. This it does not do. It is clearly apparent from the unquestioned evidence that appellee had for nearly two years been in the habit of receiving royalties from appellant in accordance with the' contract upon unsworn reports which it had accepted without question. It is no doubt true that under the terms of the contract appellee had a right to require thereafter that the returns should be under oath and it was appellant’s duty to so make them. But it was also within appellee’s power to waive such sworn returns, and that it did so for the period prior to the first of January, 1904, is manifest. We are at a loss to understand the assertion that there is an entire absence of evidence of waiver of sworn returns on the part of appellee. In support of such claim we are referred to Penn. Coal Co. v. Ryan, 107 Ill. 226-234. In that case it was claimed the appellant had waived the right to insist on payment of money as the contract provided because the contract had never been canceled for appellee’s default. The court held that “not having canceled the contract, the appellant simply occupies the same position it would occupy had the cancelation clause been omitted.” It must suffice to say that the case affords no support for the contention that appellee had not waived returns under oath.

It is argued that appellant deliberately refused to comply with the contract when requested to make return of sales as provided therein. As above stated, appellant was under no contract obligation to make return at the time appellee asked for a report showing what had been done up to December 1, 1903, nor for that period. All royalties had been paid up to January 1,1904. Appellee had asked for and received payment in advance for that last quarter, on an estimate of what the sales and royalties thereon would probably be. The evidence shows that this estimate .was within one dollar and twenty cents of what the royalties on sales for that quarter actually proved to be. Appellee had receipted ‘ in full for. royalty account to January 1, 1904.” That this involved a waiver of any report for that quarter seems too clear for argument. Of what avail would a sworn statement of sales for that quarter have been when the parties had expressly agreed to settle and had settled for all such sales in advance, upon an agreed estimate of what they would be? Could there be, unless by express written instrument, a more definite and effectual waiver of further claims under the contract for that quarter? In fact, however, the request referred to did not purport to ask for a return under oath such as the contract provided for, and apparently was not so intended by appellee nor so regarded at the time by either party.

We are unable to concur in the view expressed by the master that it was the duty of appellant “to make a written statement to said company on or prior to January 10, 1904, as to the amount of saw frames manufactured and sold by him for the three months prior to January 1st.” It follows that the decree based on such finding must be deemed erroneous. In view of this conclusion it is not necessary to consider other questions presented in the briefs.

For reasons indicated the decree of the Superior Court will be reversed and the cause remanded with directions to dismiss the bill.

Reversed and remanded with directions.


text:
    Walter I. Moody v. Chicago Title & Trust Company.
    Gen. No. 13,566.
    1. Res judicata—when decree upon bill of interpleader is. A final decree entered upon a bill of interpleader is res judicata as to the defendants with respect to all questions at issue determined between them in connection with the adjudication of their respective claims.
    2. Res judicata—when parol evidence competent. It is competent to show by extraneous evidence what question or questions were raised and determined in a former suit.
    3. Set-off—when cannot be successfully interposed in action by trustee in bankruptcy. In an action by a trustee in bankruptcy to recover assets preferentially transferred, a defense of set-off, predicated upon the holding by the defendant of notes of the bankrupt and an existing obligation as guarantor of the bankrupt, will not be sustained.
    4. Bankruptcy—what not essenticcl to recovery of preferential payment. A demand for the return of assets preferentially transferred is not essential to their recovery by the trustee of the bankrupt.
    5. Bankruptcy—what constitutes preferential transfer. A preferential transfer may take place notwithstanding the party receiving the transfer has no provable claim against the estate of the bankrupt. It is sufficient if, at the time of the transfer, he is subject to a contingent obligation.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed December 24, 1907.
    Statement by the Court. This is a suit by appellee as trustee in bankruptcy of Moody-King Company, a corporation, to recover assets transferred to appellant by .said corporation on the twelfth of January, 1903. Material facts relating to the transactions involved in this controversy are fully set forth in the statement preceding the opinion of this court in Moody v. Chicago Title & Trust Co., 126 Ill. App. 68, and need not here be repeated.
    The Moody-King Company having been adjudged bankrupt, and appellee having been appointed the trustee in bankruptcy, the latter sued in assumpsit averring that on January 12,1903, the bankrupt corporation transferred to appellant certain shares of stock, notes and choses in action, upon pre-existing indebtedness due appellant from the Moody-King Company; that said company was insolvent at the time of such transfer and that appellant had reasonable cause to believe that it was intended to give him a preference; that such transfer enabled the defendant to obtain a greater percentage of his debt than other creditors and that by reason of the premises appellant became indebted to appellee. The second count further alleges that at the time of the transfer to him by the corporation, appellant was president and director of the Moody-King Company and that the bankrupt company owed $10,000 to creditors other than the defendant, no part of which is paid.
    Appellant pleaded to the declaration, claiming set-off by reason of his having paid $13,000 on two demand notes of the bankrupt, upon which notes he was guarantor, and also that he was the holder of eight notes of the bankrupt amounting to $4,300. The issues were submitted to a jury which returned a verdict in favor of appellee for $4,000. Plaintiff remitted $2,500 and judgment was entered against appellant for $1,500, from which judgment this appeal is taken.
    B. M. Shaffner, for appellant.
    Rosenthal, Kurz & Hirschl, for appellee; Edward Menkin, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

In the case referred to in the foregoing statement (Moody v. Chicago Title & Trust Co., 126 Ill. App. 68) a bill of interpleader was' filed by an indemnity company against which appellant had instituted proceedings to recover upon a certain bond or policy of insuranee, the proceeds of which were claimed by appellant and by appellee as trustee in bankruptcy of the Moody-King Company. It was held that to allow appellant to recover on the indemnity bond would be inequitable, would allow him to obtain a fraudulent preference in violation of the bankruptcy act over ■ other creditors of the Moody-King Company and a greater percentage of his debt against the bankrupt than any other creditors of the same class. In the present suit appellee seeks to recover the value of other assets of the Moody-King Company transferred to appellant at the same time under the same circumstances and for the same purpose as was the indemnity bond in controversy in the case cited.

It is contended in favor of appellant that the court erred in applying the doctrine of res judicata. The ground of the contention seems to be that in the former case above referred to the proceeding was instituted by a third party, and differs from the case now under consideration in that respect. While it is true the bill of interpleader was filed by a third party seeking to ascertain to whom its admitted debt upon the indemnity bond should be paid, the actual controversy was between appellant and appellee in its capacity of trustee in bankruptcy, as in the present suit. While in the former case the question was raised whether there had been a formal assignment of the indemnity bond or policy to appellant the decision was, nevertheless, actually based upon the ground that if there was a delivery of the bond to appellant which might otherwise have been valid, it was fraudulent and void as against creditors of the bankrupt. The same question is directly involved in the case at bar. The record in the former case was introduced in evidence. It is competent to show by extrinsic evidence that the precise question was raised and determined in the former suit. Sawyer v. Nelson, 160 Ill. 629-631; Russell v. Place, 94 U. S. 606. The decree in the interpleader case finds' among other things, “that the transactions upon which Moody claims his right of recovery, occurred on January 12, 1903, when Moody-King Company was insolvent and unable to continue its business, and that the aggregate of property of bankrupt was not then, at fair valuation, sufficient to pay its debts; that throughout such transactions Moody had reasonable cause to believe it was intended to give him a preference in violation of the Bankruptcy Act of 1898; that the effect of the enforcement of such transfer will enable him to obtain a greater percentage than other creditors of Moody-King Company of the same class.” This decree was affirmed in all respects. The parties are identical in case at bar with those in the former case, and the only difference is that appellee as trustee is not claiming the same subject-matter, although claiming in the same right and capacity. What is said in Brack v. Boyd, 211 Ill. 290-294, is in point: “The case falls within the other rule, which is, that where some controlling fact or question material to the determination of both causes of action has been adjudicated in a former suit and the same fact or question is again at issue between the same parties, its adjudication in the first will if properly presented be conclusive of the same question in the later suit, irrespective of whether the cause of action is the "same in both suits or not.”

It is urged that no recovery can be had against appellant until appellee has placed him in statu quo by repaying him the $13,000, paid by him as guarantor upon notes of the bankrupt and' a further sum equal to the value of the $25,000 of the capital stock of the bankrupt corporation, which he surrendered to King, another stockholder, at the time of the transfer of the assets in question to appellant. It is doubtless true that “under the present bankrupt act the trustee takes the property of the bankrupt in cases unaffected by fraud in the same plight and condition that the bankrupt himself held it and subject to all the equities impressed upon it in the hands of the bankrupt.” Thompson v. Fairbanks, 196 U. S. 516. It is also true that in the original counts of the declaration appellee alleged it had notified appellant of its election to rescind the transfer in question made by the bankrupt to appellant. There are, however, additional counts containing no such averment. The presence of this averment in the original count does not affect thé rights of either party. Appellant was a director in the bankrupt corporation, and as we held in the interpleader case, “an insolvent corporation cannot prefer a creditor who at the same time is a director therein.” -Appellant was liable on the notes for $13,000 as guarantor before the transfers in controversy were made to him and remained liable to the same extent notwithstanding the transfers. The decree in that case expressly found “that throughout such transactions Moody had reasonable cause to believe it was intended to give him a preference in violation of the Bankruptcy Act of 1898.” We affirmed that decree and the question is no longer open in this court. Appellee in this case does not sue in the right of the bankrupt and is under no obligation to rescind the transfer. He sues as the representative under the bankrupt act of the creditors who are entitled to receive the benefit of assets rightly belonging to the bankrupt’s estate. There is no evidence that the stock of the bankrupt held by appellant and transferred by him to King had any value at the time, even if it passed to King for the benefit of the bankrupt.

Appellant’s counsel ingeniously argues that the fraudulent preference to appellant is voidable but not void and that hence the suit is in the nature of trover and could not be brought until demand by the trustee and refusal by appellant. As above stated, we held that appellant “had reasonable cause to believe it was intended” to give him a preference in violation of the bankruptcy act. In such case no, reason appears why he should be entitled to a demand by the trustee or to prior notice of a suit to recover such preference. The trustee is expressly authorized to “recover the property or its value” from a person having such “reasonable cause” to believe a preference was intended. (Bankrupt Act, sec. 60b.) The contention that appellant was hot a preferred “creditor” at the time is not, we think, material under the undisputed facts and the bankrupt law. While not a creditor in the sense that he had a provable claim against the bankrupt’s estate, he was not entitled to a preference, even though his liability as guarantor for the bankrupt was only, conditional at the time. The preference was clearly taken by him in view of the very evident and assured contingency that as guarantor he would be obliged to pay the debt. See Crandall v. Coats, 133 Fed. Rep. 965-967. It is not, we think, material that appellant’s conditional liability was not then a claim provable against the bankrupt estate. The act provides that “if a bankrupt shall have given a preference within four months before the filing of his petition,” etc., the trustee may recover the property or its value. It does not necessarily follow that the preference can only be recovered back from one who is then an actual creditor. It suffices that he is preferred against a liability of the bankrupt which has become actual though at the time contingent. Crandall v. Coats, supra.

It is urged that appellant was entitled to set-off against the claim of the trustee, the $13,000 which he paid to the bank as guarantor of notes of the bankrupt, and that the Superior Court erred in not allowing such claim of set-off. While this might be true under certain conditions if the trustee was suing in the right of the bankrupt, to enable appellant to claim a right of set-off as against the creditors represented by the trustee under the facts in this case would be to allow him the very preference it is the purpose of the bankruptcy act to avoid. The case differs materially from Smith v. Hodson, 2 Smith’s Leading Cases, 201, cited in behalf of appellant. In that case the action was brought by the assignee on a contract for goods sold by the bankrupt and the party buying might, it was held, “Set up the same defense to an action brought by the assignees which he might have used against the bankrupt himself; and consequently may set off another debt which was owing from the bankrupt to him.” In the case at bar the assignee is seeking to recover property unlawfully transferred to appellant by the bankrupt, a very different cause of action. In so suing, the trustee instead of affirming the transaction between the bankrupt and appellant, expressly repudiates it.

It is insisted that appellant is treated inequitably by the judgment complained of, and that hence the judgment should be reversed. The liability of appellant as guarantor resulted by force of law from his own act. He was a stockholder and officer of the bankrupt corporation interested in its business. "VVTiile by indorsing the bankrupt’s notes he has placed himself in an unfortunate situation, the position of creditors who trusted the bankrupt perhaps on the faith of appellant’s connection with it, is certainly no less equitably entitled to consideration, if the question of equities was before us.

Finding no material error, the judgment of the Superior Court must be affirmed.

Affirmed.


author: Mr. Justice Smith Mr. Justice Feeeman

text:
    City of Chicago v. John J. Fitzmaurice.
    Gen. No. 13,540.
    1. Civil service commission—how rules of, must he proved. The only competent evidence of the rules of the civil service commission are the original rules adopted, or a copy, proved to he such by a witness who has compared such copy with the original rules and knows that such copy is correct.
    2. Civil Service Act—what proof sufficient to entitle recovery of compensation. Compensation may he recovered where it appears that the plaintiff duly took the civil service examination for a particular position, that he passed such examination and was certified to the commission, was appointed to and served in such position, that on charges preferred he was discharged, but that upon certiorari proceedings resulting from the discharge, the discharge was quashed.
    3. Res judicata—effect of certiorari proceeding as. In an action by a civil service employe to recover compensation the judgment in a certiorari proceeding instituted by him is res judicata with respect to the existence of the office fillefi by him and also with respect to his appointment.
    Fbeemau, J., dissenting.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed December 24, 1907.
    Statement by the Court. Appellee brought this action of assumpsit against appellant to recover his salary as a police patrolman of appellant from November, 1903, when he was suspended pending the determination of certain charges, upon the hearing of which he was discharged, until June 2, 1906, when he was reinstated in his position.
    It appears from the record that in April, 1895, the general Civil Service Act was adopted by the electors of the city of Chicago; that in March, 1898, appellee took an examination for the position of patrolman in the department of police, passed and was certified by the Civil Service Commission on requisition by" the superintendent of police and given a position as patrolman.
    Shortly after his discharge, upon a hearing before the Civil Service Commission, he brought a certiorari proceeding in the Superior Court against the Civil Service Commission, the return to which did not show that notice was given to appellee of the time and place of the hearing. The judgment of the court was that the proceedings of the commission be quashed. One Walter Bullís, against whom the same charges were made at the same time, and who was also discharged, brought a similar proceeding against the commission, with a like result. An appeal was allowed in both cases, and it was stipulated that appellee’s case should abide the result of the appeal in the Bullís case. The Supreme Court affirmed the judgment of the Appellate Court, which affirmed the judgment of the lower court. Powell v. Bullis, 221 Ill. 379. Appellee was reinstated accordingly on June 2, 1906.
    Appellee offered in evidence the item concerning patrolmen in the appropriation ordinances of the city of Chicago for the years 1903, 1904, 1905 and 1906; certain sections of the Revised Code of Chicago of 1897, creating the department of police; the item from .the register of eligibles concerning appellee; alleged rules of the Civil Service Commission purporting to classify the offices and places of employment not exempt by the Civil Service Act pursuant to section 3 of the act.
    Appellee testified that since his discharge he made no effort to procure employment, except once, in May, 1904, when he tried to get work as a special policeman.
    Evidence on behalf of appellant was admitted, showing the original charges preferred against appellee on which he was discharged in 1903, and also the charges preferred against him on July 24, 1906, and that the latter charges were pending and undetermined before the Civil Service Commission at the time of the trial of this cause in the court below.
    The court directed a verdict for appellee for $2,-' 660.20, and a judgment for that amount was entered.
    Michael F. Sullivan, George W. Miller and Clyde L. Day, for appellant; Edward J. Brundage, Corporation Counsel, of counsel.
    A. D. Gash, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Appellee offered and the court admitted in evidence, over the objection of counsel for appellant, what purports to be the civil service rules adopted by the Civil Service Commission of the city of Chicago. It was not claimed that they were the original rules, or that the original rules had been lost or destroyed or could not be procured. The witness who was secretary of the Civil Service Commission was shown what purported to be a copy of the published rules and classification of the civil service of the city of Chicago, and was asked if that was a copy of the published rules. The court permitted him, over the objection of counsel for appellant, to answer that it was a copy of the reports of the secretary of the commission to the mayor of the proceedings of 1903, issued by the Civil Service Commission, of the rules in force January 31, 1904. The witness further testified, on cross-examination, that he did not know the rules in force January 31, 1904, or prior to that date, or subsequent to that date; that he had not examined the copy of the report closely; that he had looked it over casually. Thereupon the court admitted the report in evidence, and counsel for appellant excepted to the ruling.

In our opinion, no sufficient foundation was laid for the introduction of the copy in evidence. The only competent evidence of the rules was the original rules adopted, or a copy proved to be such by a witness who had compared the copy with the original rules and knew that it was a correct copy thereof. The rules are a public record, and the record itself, or a certified copy thereof, could be procured by appellee, for aught that appears in the record. The admission of the report was error.

We think, however, that it was unnecessary for appellee to make proof of the rules and classification of service. The evidence on both sides of the case showed that appellee took the civil service examination in March, 1898, for the position of policeman; that he passed the examination and was certified by the Civil Service Commission, on a requisition by the superintendent of police, and was appointed to and served in the position of patrolman; that on charges preferred against him he was discharged by the commission, and that on a certiorari proceeding brought by appellee in the Superior Court the proceedings of the commission were quashed and held for naught.

Thus the record shows that appellee was never discharged legally and has remained in his position of patrolman during the whole period for which he sues for his salary. We cannot see, therefore, that it was necessary for him to establish, as an original proposition, that there was such a position, and that he was duly appointed to it, for that is necessarily implied and shown, and even admitted by the charges before the commission and the trial before it. If appellee had not been a patrolman regularly appointed according to law, what need was there to file charges against him as patrolman and have a trial before the Civil Service Commission? The return in the certiorari proceeding shows that appellee was a patrolman of the city of Chicago. What was stated to be a fact and was necessarily adjudicated upon in that proceeding by the city, ought not to be a subject of litigation again in this case between the same parties. We think appellant is concluded in this case upon the question of the existence of the position, and that appellee was a patrolman duly appointed. Attorney-General v. C. & E. R. R. Co., 112 Ill. 520; Hanna et al. v. Read et al., 102 id. 596.

The ruling of the court admitting the immaterial evidence, though erroneous, was not reversible error.

It is urged that the judgment is excessive, in that it includes salary for November, 1903, amounting to $91.66.

We find no error assigned under which this' question can be raised.

The judgment of the Superior Court is affirmed.

Affirmed.

Mr. Justice Feeeman

dissenting.


author: Mr. Justice Smith

text:
    Danforth Manufacturing Company v. M. L. Barrett & Company.
    Gen. No. 18,546.

      Judgment—form of, where defendant in attachment, in whose interests forthcoming bond has been given, becomes bankrupt. In an action of attachment in which a forthcoming bond has been given, a judgment should be entered against the defendant notwithstanding his prior bankruptcy, but the entry of the judgment should be accompanied by an order perpetually staying execution.
    Action commenced before justice of the peace. Appeal from the County Court of Cook county; the Hon. Lewis Rinakeb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed.
    Opinion filed December 24, 1907.
    Statement by the Court. This action was commenced before a justice of the peace by appellee against appellant.^ Judgment was rendered by the justice against appellant for $192.34. The defendant, appellant here, prayed an appeal to the County Court, and on February 3, 1906, gave an appeal bond in the sum of $400 with surety,' conditioned that if said Dan-forth Manufacturing Company shall prosecute its appeal with effect and shall pay whatever judgment may be rendered against it by the court upon trial of said appeal, or by consent, or in case the appeal is dismissed, or in case the matter in controversy is settled between the parties to the suit without a trial by the court appealed to, will pay the judgment rendered against it before said justice, and all costs occasioned by said appeal, then the above obligation to be void, otherwise to remain in full force and effect.
    On the same day, February 3, 1906, a transcript of the proceedings before the justice of the peace was filed in the County Court. April 24, 1906, the appearance of M. L. Barrett & Co., a corporation—appellee— was filed in the County Court. A jury was waived and the cause was submitted to the court for trial, and the court found the issues for the plaintiff, appeh lee, and assessed the plaintiff’s damages at $192.34, and entered a general judgment against the defendant, appellant.
    Appellee’s evidence on the trial tended to show an account stated. This was not denied. Appellant introduced in evidence proceedings of the United States District Court in bankruptcy, showing a proper schedule of the claim sued on, and the discharge of appellant, pending- the appeal in the County Court.
    Steele & Thompson, for appellant.
    Frederick Duffy, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

It is admitted in argument by appellant that it is proper for a trial court to enter a judgment against a defendant with a perpetual stay of execution in order that the plaintiff in said judgment may enforce the same against the sureties on a bond given upon an attachment levied more than four months prior to the bankruptcy of the defendant, as held in Hill v. Harding, 116 Ill. 92, and Hill v. Harding, 130 U. S. 699. But it is contended on the authority of Goyer v. Jones, 79 Miss. 253, that this rule should not be applied where the plaintiff or claimant has acquired no lien under his judgment; and that there should be no judgment against appellant in this case because the sureties on the appeal bond áre not liable.

On this record the sureties on the appeal bond are not before the court, and we cannot determine their rights and liabilities. It will be time enough to determine the question of their liability when a proper case is presented for our consideration involving that question. The only question here presented is whether, as between appellant and appellee, the general judgment entered by the County Court was the proper judgment to be rendered in the case. We think it was not. It deprives appellant of the benefit of its discharge in bankruptcy proved by the evidence in the record.

The question then.is, what is the proper judgment to be entered in this case, in view of the provisions of the bankruptcy act and the nature and conditions of the appeal bond given on the appeal from the judgment of the justice of the peace.

Section 16 of the bankruptcy act provides that, “The liability of a person who is a co-debtor with, or guarantor, or in any manner a surety for, a bankrupt, shall not be altered by the discharge of such bankrupt.”

The condition of the appeal bond is given in the preceding statement. This bond was given before the proceeding in bankruptcy was commenced.

The question presented in Hill v. Harding, supra, was whether there is anything in the provisions of the bankrupt act to prevent a state court from rendering judgment against a bankrupt with a perpetual stay of execution against him, where a bond or recognizance had been given to dissolve an attachment made more than four months before the commencement of the proceedings in bankruptcy, thus leaving the obligee at liberty to proceed against the sureties, and it was held that the authority for such judgment depends upon the practice of the state court, and that there is nothing in the bankrupt act to prevent the rendering of such a judgment.

While conceding that the entry of such a judgment is the settled practice of this state, where a lien has been secured, as in Hill v. Harding, 116 Ill. 92, counsel for appellant contend there is no reason for it, and the practice should not be applied where the plaintiff or claimant has acquired no lien under his proceedings or judgment. We think this contention cannot be sustained.

There are decisions in other jurisdictions which hold that the discharge in bankruptcy of the principal, the defendant in a suit in which a bond or recognizance by the surety is given, prevents any judgment against the bankrupt, and is therefore a complete defense to the surety when sued on the bond or recognizance, upon the theory that the surety is released from his undertaking because there can be no judgment against the bankrupt, but other authorities hold that by the provision ab.ove quoted of the Bankrupt Act the discharge of the surety is saved.

In Fisse, Assignee, etc., v. Einstein, 5 Mo. Appeals, 78, it is held that a discharge in bankruptcy of a judgment-debtor will not release his sureties on a bond for appeal from a justice of the peace, executed before the institution of the proceedings in bankruptcy; that the judgment debtor is liable on the judgment as soon as it is rendered, and when the surety signs the appeal bond he becomes liable with him for the same debt within the meaning of the bankrupt act. The following cases hold the same rule: Knapp v. Anderson, 7 Hun, 296, affirmed in 71 N. Y. 466; Holyoke v. Adams, 10 Nat. Bk. Reg. (N. Y.) 270; Elder v. Prussing, 101 Ill. App. 654. In Fisse v. Einstein, supra, it was said: “The extinction of the obligation, to be sure, extinguishes the liability of the surety when the debt is extinguished by the voluntary act of the creditor, but the surety is never released by causes, such as bankruptcy, which originate in the law, against the creditor’s will. Phillips v. Solomon, 42 Ga. 197; Throb, on Prin. & Sur., Sec. 114.”

In view of this question of the liability of the sureties on the appeal bond—a question not necessary for us to decide and which we do not decide—the proper judgment in this case is a special judgment against appellant for the amount due to appellee with a perpetual stay of execution. Such a judgment against appellant can work no harm to it, and will not interfere with any rights or privileges acquired by its discharge in bankruptcy. In Hill v. Harding, 130 U. S. 699, supra, it is said at page 703, speaking of a judgment with a stay of execution: ‘ ‘ The judgment is not against the person or property of the bankrupt, and has no other effect than to enable the plaintiff to charge the sureties, in accordance with the express terms of their contract, and with the spirit of that provision of the bankrupt act which declares that ‘no discharge shall release, discharge or effect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety or otherwise.’ ”

Appellant cannot complain of such a judgment, because it would not injuriously affect it. Bowman v. V. & C. Ry. Co., 102 Ill. 459; Hill v. Harding, 116 id. 92; Flack v. Moore, 117 Ill. App. 551.

As said above, the judgment of the County Court is a general judgment. True, the bill of exceptions in the record contains a statement or recital that a perpetual stay of execution was ordered, but we cannot look to the bill of exceptions for the judgment. That appears in the common law record of the court alone, and the above recital in the bill of exceptions is without warrant in law, and does not affect the judgment which was in fact entered.

The judgment of the County Court is therefore reversed and a new judgment will be entered here' for one hundred and ninety-two dollars and thirty-four cents ($192.34) in favor of appellee and against appellant, with a perpetual stay of execution.

Reversed and judgment here.