text:
    Mary F. Brown et al., Appellees, v. Shubert Theatrical Company, Appellant.
    Gen. No. 16,020.
    1. Statute of frauds- — when lease not within. field, under the facts in this ease, that the agreement in question, which was an agreement to take a lease of certain premises, was not within the Statute pf Frauds of the State of Wisconsin.
    2. Landlokd and tenant — when estoppel to question terms of lease arises. If a lease is tendered as being in compliance with the provisions of a contract after the lease is accepted by the lessee an es-toppel arises against such lessee to question the terms of such lease as not in compliance with such contract.
    3. Evidence — effect of failure to produce. If it is within the power of a party to produce evidence a failure by such party to produce the sam’e justifies an inference that such evidence if produced would be prejudicial to his contentions.
    Appeal from the Circuit Court of Cook county; the HoN. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Harry J. Lurie, for appellant.
    Follansbee, McConnell & Follansbee, for appel-lees; Mitchell D. Follansbee and Clyde E. Shorey, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by the appellees, Mary F. Brown, Clarice F. Sanderson, Emily F. Smith and Jane Fol-lansbee, owners of certain premises, known as No. 117 Wisconsin street, in the city of Milwaukee, Wisconsin, against appellant, the Shubert Theatrical Company, to recover damages for the alleged breach by the latter of an agreement claimed to have been entered into by it to take a lease of said premises.

To the declaration as finally amended, appellant pleaded the general issue and also tlie Statute of Frauds of the State of Wisconsin, which statute provides, inter alia, as follows:

“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands or in any manner relating thereto shall be created, granted, assigned, surrendered or declared unless by act or operation of law or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same or by his lawful agent thereunto authorized in writing.”
‘ ‘ Every contract for the leasing for a longer period than one year or for the sale of any lands or any interest in lands shall be void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made or by his lawfully authorized agent.”

To these pleas, which were verified, appellees replied that the agreement in question was signed by the authorized agent of appellant.

Upon a trial by jury in the Circuit Court, there was a verdict and judgment against appellant for $4,000, from which judgment it prosecutes this appeal.

Shortly prior to January 6,- 1906, appellant had leased the premises, known as the Academy of Music, in the city of Milwaukee, for use as a theatre, and had also conducted negotiations with one Jane Follansbee, relative to procuring a lease of the premises known as No. 117 Wisconsin street, for use as an entrance to said theatre from Wisconsin street. The negotiations were conducted on behalf of appellant by Edwin Than-houser, the local manager of the theatre, and by J. J. Shubert, the treasurer of appellant corporation. On January 6, 1906, Jane Follansbee executed a written instrument, whereby, in consideration of $100, which was paid by said Thanhouser for appellant, she agreed to give to appellant the privilege for thirty days to lease tlie store and basement of tbe said premises for tbe term of five years from May 1, 1906, at an annual rental of $4,500, payable in equal monthly payments in advance, with tbe privilege of renewing said lease for a further term of five years at an annual rental of $5,000. The agreement also enumerates certain conditions to be embodied in the lease. At tbe time this option was signed by Mrs. Follansbee tbe property was owned by herself and tbe other appellees as tenants in common, and she, with the knowledge and consent of her co-tenants, bad managed tbe property for a period of thirty-eight years. Following tbe execution of said option by Mrs. Follansbee, she was notified by Than-houser that an acceptance of the same by appellant would be forthcoming, and that the lease might be drafted for signature. Thereupon, Mr. Wight, the legal adviser of appellees, drafted the lease in substantial accordance with the provisions of the option, and submitted the same for examination to Thanhouser and Herman Frank, who purported to be the representative of appellant, and treated with Mrs. Follansbee in that capacity. Some changes in the original draft of the lease were suggested by Frank, and a form was finally agreed upon by Frank, Than-houser and Wight. The lease was properly signed and acknowledged by all of the appellees, and was then given to Frank for the purpose of having the same executed by appellant. On or about February 3, 1906, Mrs. Follansbee received through Thanhouser a communication as follows:

‘ ‘ G-arrick Theatre, Chicago.
February 3, 1906.
“To Mrs. Jane Follansbee,
‘ ‘ Dear Madam:—
“Referring to the option given ns for the leasing of the store and basement known as No. 117 Wisconsin' St., which option is in writing and is dated Milwaukee, January 6, 1906:
“We hereby notify yon of the exercise of our option and onr desire to lease the said premises above described upon the terms and conditions mentioned and described in said writing above referred to. ^
“Respectfully,
“The Shubert Theatrical Company,
“Per Herman Frank,
“Its Agent and Attorney in Fact.”

At sometime prior to April 23, 1906, the lease was executed by appellant, and came into the hands of Frank, but was not delivered to appellees, because appellant had determined not to consummate the transaction. Appellees then tendered the possession of the premises to appellant and demanded a copy of the lease executed by appellant. Appellant refused to take the premises and retained the lease executed by it.

First. It is urged that the authority of Herman Frank and of Jacob J. Shubert to bind appellant with reference to the transaction in question is not established by the evidence.

Appellant is a New York corporation, having its principal office in the city of New York. The officers of the corporation were, Lee Shubert, president; Max C. Anderson, vice-president; Jacob J. Shubert, treasurer; and Joseph L. Rhinock, secretary. Jacob J. Shubert resided in Chicago and managed the G-arrick Theatre. Appellant operated a theatre in the Academy of Music in the city of Milwaukee,* Wisconsin, and employed one Thanhouser, as its resident manager. There is ample evidence in the record tending to show that appellant was cognizant of the plan or purpose to obtain the lease in question, and that Jacob J. Shubert, with the knowledge of Lee Shubert, went to Milwaukee, fully armed with apparent authority to negotiate for such lease. While in Milwaukee, Jacob J. Shubert was accompanied by Herman Frank, who acted in the capacity of legal adviser for appellant, and who was introduced by Shubert to the agent of appellees as the representative of appellant, through, whom the further negotiations would he conducted. Thereafter, Frank, assuming to act as agent and attorney in fact for appellant, executed the written acceptance of the option for the lease.

The Statute of Frauds of the State of Wisconsin is controlling (Miller v. Wilson, 146 Ill. 523), and that Statute, both by its terms and by construction of the Supreme Court of Wisconsin, does not require that the authority of the agent who contracts for the leasing of land shall be in writing. Dodge v. Hopkins, 14 Wis. 685. There is nothing in the facts of this case that prevents the application of the rule laid down in Morawetz on Corporations, cited with approval in McDonald v. Chisholm, 131 Ill. 273, as follows: “The general rule is established, that if an act performed by an agent would, under ordinary circumstances, be within the authority delegated to the agent, a person dealing with him in good faith, on the faith of his apparent powers, and without notice of facts showing that the act was unauthorized, may hold the prinicipal liable, whether the act was authorized or not.” That appellant recognized the authority of Frank to negotiate for a lease on its behalf is manifest from the fact that it signed the lease in its corporate capacity, when it was taken or forwarded to New York by Frank, and that Frank was thereafter entrusted with its custody by appellant. The authority of Jacob J. Shubert and of Frank to act for appellant in the premises was not only not questioned by it, but was impliedly conceded by it, until this suit was instituted. The refusal of appellant to take the premises was not predicated upon any such ground.

Second. The terms of the lease, executed by appel-lees and delivered to appellant, do not differ in any substantial respect from the terms of the lease provided for in the option contract. The lease, as tendered by appellees, was accepted by appellant for exe-cation, as being in compliance with the provisions of the contract, and as wholly satisfactory to it. It is estopped from now asserting the contrary.

Third. It is claimed that the agreement for a lease is unilateral and void and unenforcible for want of mutuality, because it is signed by Mrs. Follansbee alone, and there is no evidence that at the time of its alleged acceptance by appellant it had any notice that she was other than the sole owner of the premises. The record does not sustain this claim. It is uncon-troverted that a form of lease was drafted by Wight and submitted to Jacob J. Shubert and Frank, prior to the date of the written acceptance by appellant of the option contract, and it necessarily then appeared from an inspection of such draft of the lease that Mrs. Fol-lansbee was not the sole owner of the premises, but that the premises were owned by the appellees as tenants in common. Appellant then, having actual notice of the exact facts as to the title of the premises, and of the capacity in which Mrs'. Follansbee executed the option contract, might have refused to accept such contract, but having accepted the same with full knowledge of the facts, it must be held to have assented thereto, and to its ratification by the co-tenants of Mrs. Follansbee. In this particular, the facts in the case at bar serve to .clearly distinguish it from the case of Cowan v. Curran, 216 Ill. 598, relied upon by appellant.

Fourth. The rulings of the trial court upon the evidence were not wholly accurate in every instance, but the errors in that regard are not of sufficient significance to merit extended discussion, or to require a reversal of the judgment.

Fifth. The first instruction given at the instance of appellees is assailed upon the grounds that, notwithstanding it directs a verdict, it erroneously assumes that appellees tendered to appellant a lease in accordance with the terms of the option contract, and that appellant had in fact signed the lease. As we have heretofore said, the terras of the lease which was executed by appellees and delivered to appellant did not differ in any substantial respect from the terms of .the lease provided for in the option contract. Furthermore, as the terms of the lease delivered to appellant were acquiesced in and adopted by it as being in conformity with the provisions of the option contract, no harm could have resulted to it by the instruction. While there is some conflict in the evidence bearing upon the question whether or not the lease was in fact signed by appellant, we are fully persuaded that a dear preponderance of the evidence sustains the contention of appellees in that regard. It was wholly within the power of appellant to produce the lease in response to notice served upon it, and if it had not in fact been signed, appellant would have undoubtedly produced it. The failure of appellant to produce the lease is most significant. The judgment should not be reversed, because the instruction assumes a fact which is obviously true.

We find no reversible error in the record and the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Me. PeesidiNG Justice Baume

license: Public Domain

text:
    William H. Marshall, Appellant, v. William H. Marshall, Jr., et al., Appellees.
    Gen. No. 18,034.

      Verdicts — when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence where not clearly and manifestly against its weight.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker^ Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 13, 1911.

      Oscar E. LeiNEN, for appellant.
    Keuse & PedeN and Hot C. Meeeick, for appellees.
   Me. PeesidiNG Justice Baume

delivered tlie opinion of the court.

This is a suit by appellant, the father, against his sons, the appellees, to recover $2,381.77. To the declaration, consisting of the common counts, appellees pleaded, (1) the general issue; (2) the five year Statute of Limitations; (3) payment; and (4) set-off of $1,176.04. A trial in the Municipal Court without a jury resulted in a finding and judgment against ap-pellees for $300, and appellant, being aggrieved by the alleged inadequacy of the finding and judgment, prosecutes this appeal.

Prior to 1898, there was a mortgage on appellant’s house and lot. Appellant then borrowed $2,000 thereon for five years, wherewith he paid off the prior encumbrance, together with certain special assessments amounting to about $400, and the balance, something over $1,100, he loaned in installments during 1899 and 1900 to appellees and another son, James, who were engaged in the express business. Dp on the maturity of the encumbrance of $2,000 in 1903, appellees paid $100 thereon, and appellant negotiated another loan of $1,900, secured by mortgage on the same premises, wherewith the prior encumbrance was liquidated and discharged. During the year 1905 appellant loaned to appellees $300. In 1908, appellant sold the premises and paid off the encumbrance of $1,900, o.r conveyed the same subject to the said encumbrance, and also paid the last interest coupon amounting to $58.75, and the taxes for 1908, amounting to. $121.02. • The claim of appellant against appellees, aside from the $300 loaned in 1905, is predicated upon an alleged promise by the latter in 1903, in consideration of the loans theretofore made to them by appellant, to pay the principal of the $1,900 encumbrance, together with the interest thereon, and the taxes on the premises.

The set-off filed by appellees embraces items of expenditures by them for repairs and improvements on appellant’s property, for money loaned appellant, for four and one-half years’ interest on the $1,900 encumbrance and for water taxes.

The trial court found that the claim of appellant based upon the alleged promise of appellees to pay the principal of the $1,900 encumbrance, together with the interest thereon and the taxes on the premises, was not established by the evidence; that while the several items embraced in appellees’ claim of set-off were in fact expended and paid by them, such expenditures and payments were made voluntarily while appellees were residing with appellant as members of his family, and appellees were not entitled to recover the same; that appellant was entitled to recover the $300, loaned to appellees in 1905. No propositions of law were submitted to the court to be held as the law of the case, and no question is raised as to the admission or exclusion of any evidence. The sole question presented for our consideration upon this appeal, is whether the finding is supported by the evidence.

The evidence bearing upon the controverted questions of fact is sharply conflicting, and considered in its entirety, as it appears in the record, would sustain a finding for either party. The evidence, as it appears in the record, makes the case typical of the class, wherein the finding of the trial judge, iconsidering the superior opportunities afforded him to weigh the evidence, because of his having seen the witnesses and heard them testify, should prevail.

"We cannot say the findings are contrary to the manifest weight of the evidence, and the judgment will be affirmed.

Judgment affirmed.


author: Mr. PresidiNg Justice Baume

text:
    The Pacific Surety Company of California, Appellee, v. A. Kreis, Appellant.
    Gen. No. 16,046.

      Suretyship — effect of failure to allege non-performance by principal. In an action upon an undertaking oí suretyship it is not essential that the plaintiff allege notice of non-performance by the principal and a demand for performance by the surety; such matters go to the defense of the action and the burden of their proof is upon the surety.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 13, 1911.
    ChaRles B. Obermeyer, for appellant.
    S. E. ThomasoN, for appellee.
   Mr. PresidiNg Justice Baume

delivered the opinion of the court.

The declaration in this case alleges, in substance, that on May 10, 1900, W. H. Payne recovered a judgment, before a justice of the peace, against B. F. Fergus for the restitution of certain premises in the city of Chicago, from which judgment said Fergus took an appeal to the Circuit Court; that thereupon in consideration of the plaintiff, The Pacific Surety Co. of California, becoming surety upon an appeal bond, dated July 11, 1900, conditioned upon the prosecution by said Fergus of said appeal with effect, and the payment by him of all rent at that time due, or which might become due on or before the final termination of said suit, and all damages and losses which said Payne might sustain by reason of withholding said premises, and by reason of any injury thereto, together with all costs, in case the said judgment should be affirmed or said appeal be dismissed, A. Kreis, the defendant, undertook and' then and there faithfully promised the plaintiff, that he would keep harmless the plaintiff from and against all losses and damages, costs, charges and expenses, which said plaintiff should or might at any time sustain,'for or by reason of said plaintiff haying executed said bond, and all costs and expenses which said plaintiff might incur in investigating any claim made upon said bond or in and about prosecuting or defending any action which might be commenced against said Fergus or said plaintiff upon said bond; that thereafter, on to wit: September 24, 1900, the said appeal coming on to be heard in the said Circuit Court, said Fergus -failed to sustain said appeal, and it was ordered by said court that a writ of restitution issue for said premises in favor of said Payne, and that he recover his costs and charges incurred in that behalf; that said plaintiff thereupon became liable to said Payne in the penal sum of $1,800, and said plaintiff was therefore forced to and did pay to said Payne the sum of $500, being the costs -and charges by him sustained in that behalf. The declaration then proceeds as follows:

“Yet the defendant disregarding his said promise and undertaking so by him made as aforesaid did not nor would not save harmless or indemnify the said plaintiff from the said loss, damage, costs, charges, and expenses so by said plaintiff incurred as aforesaid, hut hath hitherto wholly refused and neglected and still neglects and refuses so to do; to the damage of the plaintiff of One Thousand Dollars, and therefore he brings his suit, etc.”

To this declaration the defendant interposed a demurrer, wherein he set forth, (1) that it wholly failed to allege that plaintiff ever gave any notice to the defendant of the existence of any breach of the conditions of said appeal bond, whereby the plaintiff became liable or suffered any damages, and (2) that it failed to allege that the plaintiff ever notified defendant of its damages, or ever requested or demanded of the defendant that he pay the same or any part thereof before beginning suit. Said demurrer was overruled, aüd the defendant having elected to abide his demurrer, was defaulted for want of a plea, and the cause was set down for assessment of damages. The hearing on the assessment of damages resulted in a verdict and judgment against the defendant for $500.

The only assignment of error argued by appellant relates to the action of the court in overruling the demurrer to the declaration.

It is insisted by appellant that his undertaking was that of a guarantor and not absolute, but collateral; that before he could be held liable as such guarantor he was entitled to notice of non-performance on the part of his principal, and a demand for performance on himself as guarantor; and that the failure of the declaration to allege such notice and demand renders it obnoxious to the demurrer interposed. In support of such insistence appellant relies upon Taussig v. Reid, 145 Ill. 488, wherein the court adopts statements of the rule, as follows:

“Story on Contracts, vol. 2, sec. 1133, in the discussion of the question, says: ‘Whenever the undertaking by a guarantor is absolute, notice is unnecessary, but where it is collateral merely, notice must be given within a reasonable time, otherwise the guarantor will be discharged, unless he is not prejudiced by the want of notice.’ In B’aylies on Sureties and Guarantors, 202, the author says: ‘It may be laid down as a general rule, that in case of an absolute guaranty the guarantor is not entitled to demand or notice of non-performance, but where the undertaking is collateral, and not absolute, notice must be given within a reasonable time, unless circumstances exist which will excuse the want of notice. If the principal is insolvent when the debt becomes due or default is made, so that no benefit could be derived by tbe guarantor from tbe receipt of notice, no notice is required.”

We do not deem it necessary to determine whether the undertaking of appellant in question was that of a guarantor or surety, or whether it was absolute or collateral, because conceding for argument’s sake that it constituted the collateral undertaking of a? guarantor, the giving of notice of non-performance and the making of a demand were not required to be alleged in the declaration, but if there was a failure to give such notice and to make such demand, and appellant was prejudiced thereby, it was purely a matter of defense to be shown upon the trial. Upon that issue the burden of proof would be upon appellant. Mamerow v. Nat. Lead Co., 206 Ill. 626, is conclusive of the question.

The demurrer to the declaration was properly overruled and the judgment is affirmed.

Judgment affirmed.


text:
    Fort Dearborn Safe Deposit Company, Appellee, v. Jay A. Rigdon et al. On Appeal of Jay A. Rigdon, Appellant.
    Gen. No. 18,041.
    1. Injunctions — what essential to granting of preliminary. In order to justify tbe granting of a preliminary injunction .tbe essential averments of tbe bill must be verified.
    2. Injunctions — when preliminary improperly granted. If an interlocutory order is broader in its terms than tbe prayer of tbe bill it will be reversed on review.
    Bill for injunction. Appeal from tbe Circuit Court of Cools; county; the Hon. W. M. Vandeventer, Judge, presiding. Heard in tbe Braneb Appellate Court at tbe October term, 1909.
    Reversed and remanded.
    Opinion filed December 13, 1911.

      Fred A. BaNgs and E. I. Frankhauser, for appellant.
    Adams, Bob'b & Adams, for appellee.
   Mr. PresidiNg Justice Baume

delivered the opinion of the court.

This is an appeal from an interlocutory order of the Circuit Court granting an injunction without notice.

Appellee filed its bill in the nature of a hill of inter-pleader against the appellant, Jay A. Bigdon, and one Anna M. Bigdon, administratrix, and prayed for an injunction restraining said defendants, their agents, attorneys and deputies from commencing any action or actions against appellee for the recovery of the contents of certain safety deposit boxes, until the further order of the court. The order granting the injunction is as follows:

“On motion of solicitor for complainant and on reading the bill for good cause shown it is ordered, directed and decreed that a writ of injunction issue without bond, restraining and enjoining Jay Bigdon and Michael Zimmer, Thomas M. Hunter, bailiff, their agents, attorneys,. solicitors and deputies, from prosecuting the replevin suit and executing the replevin writ begun bv said Jay Bigdon against the complainant herein, mat they and each of them refrain from drilling or opening any vaults or safes of the complainant herein or removing any of the contents of any boxes, that they leave the premises of the complainant instanter and refrain from re-entering pending the further order of this court.”

There are two sufficient reasons why. the order must be reversed and the cause remanded.

First: The essential averments in the bill are not verified. Board of Trade v. Riordan, 94 Ill. App. 298; Crawford-Adsit Co. v. Bell, 95 Ill. App. 427.

Second: The injunction order- is broader in its terms than the prayer of the bill. Deaconess Hospital v. Bontjes, 207 Ill. 553; Andrews v. Kingsbury, 212 Ill. 97.

The order is reversed and the canse remanded.

Reversed and remanded.


author: Me. Justice Reaves

text:
    William J. V. Crosse, Appellee, v. Supreme Lodge Knights and Ladies of Honor, Appellant.
    Gen. No. 16,005.

      INSURANCE — particular question in application construed. Held, that tlie question, "How long since you were attended by a physician or have professionally consulted one," is ambiguous and is susceptible of two interpretations, namely, "How long since you were last attended by a physician or have professionally consulted one,” and "How long since you were first attended by a physician or have professionally consulted one," and that it was for the jury to determine as a question of fact how the question was understood and answered in the application.
    Assumpsit. Appeal from the County Court of Coot county; the Hon. William C. DeWole, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

    Affirmed.
    Opinion filed December 13, 1912.
    Ashceapt & Ashceaet, for appellant; E. M. Ash-ceaet and Chaeles F. Rathbuh, of counsel.
    Edmund S. CummiNGs, for appellee.
   Me. Justice Reaves

delivered the opinion of the court.

This is an appeal from a judgment of the County Court for $1,000, in favor of appellee, rendered on the verdict of a jury in a suit begun by appellee to recover on a benefit certificate issued by appellant to one Mary Ellen Crosse.

On the trial, the court submitted to the jury the following special finding':

“Did the said Mary Ellen Crosse at any time within five years before the signing of the medical examination in evidence, professionally consult a physician?”

To this special finding the jury answered, “Yes.” In the medical examination the applicant, Mary Ellen Crosse, was asked, “How long since yon were attended by a physician or have professionally consulted one?” Her answer was,1 ‘ Seven years. ’ ’

The case was tried below, and has been argued here, apon the theory that the answer to this question was a warranty. Three reasons are urged by appellant for the reversal of this judgment: (1) That the verdict and judgment are contrary to the evidence; (2) that the court erred in refusing one of appellant’s instructions and in modifying another; and (3) that the court erred in refusing to render judgment for the defendant on the special finding of the jury.

The correctness of all three of these contentions turns on whether the question, “How long since you were attended by a physician or have professionally consulted one?” is ambiguous and susceptible of two interpretations. If it means, “How long since you were last attended by a physician or have professionally consulted one?”, the case should be reversed, for the evidence clearly shows, and the jury by their special finding found, that the applicant had professionally consulted a physician within five years. If, on the other hand, the question can as well be understood to mean, “How long since you were first attended by a physician or have professionally consulted one?” counsel for appellant admits the judgment must be affirmed.

Counsel have called our attention to but two eases in which the question here involved has been determined, and so far as we can find, they and the case of Moore v. Ins. Co., 3 Ont. App. (Upper Canada), 230, therein cited, are the only cases in which it has been determined. In the case of Stewart v. Equitable Life Association, 110 la. 528, the question put to the applicant by tbe medical examiner was, “How long since yon have consulted a physician?”, and tbe answer was, “Five years.” Tbe proof showed that be bad consulted a physician within a year in relation to tbe disease of diabetes, with which be knew be was then suffering and which eventually caused bis death. Tbe court, on that state of facts, said, on page 531 of that opinion

“Did this establish the falsity of bis answer ? That must depend on the character of the question, and on what would one in tbe situation of the deceased understand to be desired? The inquiry was not bow long since be last or first consulted a physician, but simply bow long since be did so. If be bad been under a doctor’s care some time, be would naturally infer that tbe information desired was when be was first so attended. Thus, one in tbe habit of using tobacco or intoxicating liquors, when asked bow long since you smoked or drank, would inevitably give tbe date of beginning. The same would be true in answer concerning any practice or custom. On the other band, one without such attendance for some time would infer tbe question to call for tbe last time a doctor bad been consulted. In Moore v. Insurance Co., 3 Ont. App. 230, it was held tbe assured, because of bis situation, was authorized to construe a similar question to relate to tbe first time be was attended by a physician. These questions were prepared by the insurer, and must be construed liberally in favor of the policy bolder. Because of tbe ambiguity, tbe information called for was uncertain, and whether tbe answer was false depends on tbe deceased’s understanding of what was required. Ordinarily, tbe intention of tbe insured is not involved where answers are warranted to be true. See cases cited above. But, where their truthfulness depends on tbe construction of a question subject to two different interpretations, then bis intention becomes important, for bis understanding of tbe inquiry determines the character of the answer. The material inquiry was whether the assured truthfully responded to the inquiry as he understood it.”

In the case of Smith v. Bankers’ Life Association, 3 23 Ill. App. 392, the question asked of the applicant, “How long since you consulted a physician?” was under (consideration, and the court held it was ambiguous and capable of being construed to mean either, “ITow long since you first consulted a physician” or “How long since you last consulted a physician,” and that which way the applicant understood it when he made his answer was a question of fact for the jury to determine, and was not one of construction by the court. Several other cases have been cited by (counsel for appellant, in which similar questions have been construed, as if the word “last” had been included in the question, but in none of these cases was the question of ambiguity mooted, and the cases have been decided as if there was but one way in which the question could be construed. Whether or not, if this was a new question for judicial determination, this court would have reached the same conclusion as was reached in the three cases cited, we feel disposed to adopt the holding in those eases, as being the only holdings of the courts in point, and therefore hold that the question in the case at bar is ambiguous, uncertain and susceptible of two constructions, and that what the applicant understood by it is one of fact for the jury to determine.

The instruction of appellant that was refused and the one that was modified and given were each framed by counsel for appellant upon the theory that it was the duty of the court to construe the question to mean, “How long since you were last attended by a physician or have professionally consulted one.” Neither of these instructions, in the light of the authorities cited, was correct. The court properly refused the one and properly modified the other by adding, “provided you believe from the evidence that Mrs. Crosse in her application in evidence in answering ‘7 years’ to the question, £How long since yon were attended by a physician or have professionally consulted one?’ by said answer meant thereby that it had been seven years since she last professionally consulted a physician or was attended by one.” If these instructions had been given as requested, each of them would have told the jury, in effect, what the ambiguous question above considered meant, and would have called upon the jury to determine that the applicant had answered untruthfully, for they found that, within seven years prior to the medical examination, she had been attended by or had consulted a physician. This would have been manifestly wrong. While it is for the court to interpret a contract, it is not for the court to tell a jury what a person meant by an answer to an ambiguous question.

The contention that the ¡court should have entered judgment on the special finding of the jury is likewise without merit. The jury found that the applicant had professionally consulted a physician within the five years' before the time of the medical examination. That finding would be controlling of the general verdict only in ease the jury found that the insured had understood the ambiguous question heretofore discussed to mean when she last consulted a physician, and would be in no wise conflicting with the general verdict, if they found she understood it to mean wheri she first consulted a physician. It was, by the modification of the instruction above quoted, expressly left to the jury to determine which way she understood it, and they were told to return a verdict in favor of the defendant if they understood it to mean when she last consulted a physician. They returned a verdict in favor of the plaintiff, which amounted to' a finding by them that she did not understand the question to so mean, unless they entirely disregarded the instructions of the court, and this we have no right to assume.

Perceiving no error in the record, the judgment is affirmed.

Judgment affirmed.


author: Me. Justice Graves

text:
    In Re Estate of Annie Reed, Deceased. Claim of Annie Johnson, Appellee, v. John F. Devine, Administrator, Appellant.
    Gen. No. 16,021.
    1. Instructions — what essential to granting of peremptory. Such an instruction can properly be given only when there is no conflict in the evidence and it is of such a character that without weighing it or passing upon the credibility of the witnesses no two reasonable minds, acting within the limitations prescribed by the rules of law, could differ as to the plaintiff’s right to recover.
    2. Contracts — how undertaking to make bequest must be established. When such a contract is made the basis of an action the evidence in support thereof should be looked upon with great jealousy, and weighed in the most scrupulous manner, and the character, conduct and testimony of the witnesses should be such as to inspire confidence that they are telling the truth. Such a contract can only be enforced when it is clearly proven by direct and positive testimony, and when the terms of the contract are definite and certain. The most stringent doctrines of the court should be applied in such cases.
    Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed December 13, 1911.
    GaedNer, Steen & Anderson, for appellant.
    Gideon S. Thompson, for appellee.
   Me. Justice Graves

delivered the opinion of the court.

Appellee filed her claim in the Probate Court against the estate of Annie Beed, deceased, for the sum of $3,000, which, amount appellee claims the deceased agreed to bequeath to her. The case was tried in the Circuit Court on appeal from the Probate Court. At the close of all the evidence the trial court, on its own motion, peremptorily directed a verdict for appellee for the sum of $3,000. This action of the court is assigned for error.

Such an instruction can properly be given only where there is no conflict in the evidence, and it is of such a character that without weighing it, or passing upon the credibility of the witnesses, no two reasonable minds, acting within the limitations prescribed by the rules of law, could differ as to the plaintiff’s right to recover. Marshall v. Grosse Clothing Co., 184 Ill. 421; Heinsen v. Lamb, 117 Ill. 549.

To entitle appellee to recover in this case, it was necessary for her to establish by proper evidence that between herself and the deceased there existed a contract by which the deceased, in consideration of some act or thing to be performed by appellee, agreed to make the particular bequest claimed, and that appel-lee had performed her part of the contract. Wallace v. Rappleye, 103 Ill. 229.

When such a contract is made the basis of an action, the evidence in support of it should be looked upon with great jealousy, and weighed in the most scrupulous manner, and the character, conduct and testimony of the witnesses should be such as to inspire confidence that they are telling the truth. Such a contract can only be enforced when it is clearly proven by direct and positive testimony, and when the terms of the contract are definite and certain. The most stringent doctrines of the court should be applied in such cases. Wallace v. Rappleye, 103 Ill. 229; Woods v. Evans, 113 Ill. 186.

To maintain her case appellee produced several witnesses, the testimony of most of whom conflicted with tlie testimony of all the rest in some important particulars, and in some instances the testimony of the witness on the trial in the Circuit Court was in conflict with the testimony of the same witness on the trial in the Probate Court. Mrs. C. M. Nelson, a cousin of appellee, and who was employed by the deceased to do her washing, testified on her direct examination that, a few weeks before the deceased “got sick in bed” at her home on Waveland avenue, she said to the witness, in the presence of a man working around the house, but not in the presence of appellee, that Annie (appel-lee) was well fixed; that she had made an agreement with her, if she staid with her until she died, she would will her $3,000.

On cross examination she testified to a conversation with deceased in which substantially the same language as to the agreement was used, but fixed the time as being before the deceased moved to Waveland avenue, which was some months before she was taken sick, and fixed the place as 288 Park avenue; that the conversation had at Waveland avenue was in the presence of appellee and no one else. At the trial in the Probate Court, she testified' that appellee was not present at Waveland avenue when the conversation took place. On further cross examination she testified that deceased and witness were always alone when deceased talked about that subject. The witness, Mary B. Peed, testified on her direct examination that on three occasions the deceased told her that appellee had agreed to stay with her until she died, in consideration that deceased gave her either $3,000 or $4,000, she could not remember which amount; that the first conversation was in ’93 or ’94 at Park avenue; that the second conversation was in ’93 or ’94 . at the residence of a sister of the witness, and that the third time was at her lawyer’s office. On cross examination the witness became greatly confused as to dates variously fixing the time of the conversation from 1893 to 1909, and finally said it was eight years ago. She also testified that they were at the lawyer’s office on business of the witness, and that deceased was there talking to the mother-in-law of the lawyer.

Clara Deland testified that deceased, about eight months before she died, in the presence of the mother of the witness, but not in the presence of appellee, said there was an agreement that, if appellee would stay until the death of the deceased, she would leave her $3,000.in her will; that she in fact said she had already made that will. In the Probate Court she testified that deceased had said appellee was a faithful servant and had staid with her so many years and was broken down in health and was not very strong, and she had remembered her in her will and left her $3,000, and said nothing there about an agreement with appellee.

Elta Poster testified that a few months before deceased died she told witness in the presence of appel-lee: If Annie (appellee) stays with me until the 'end I will leave her $3,000, so she will not have to work again after that. In the Probate Court she testified that deceased told her she wanted to compensate ap-pellee; that wages would not repay her and that she intended to leave her $3,000, and that she did not say in any conversation that she had agreed with appellee to leave her $3,000.

Rosa Johnson testified that deceased had at one time told her she would leave appellee $2,000, if she staid with her until her death, and at another later time said substantially the same thing, except tha,t the sum named was $3,000.

The defendant introduced in evidence the claim of appellee for $3,000 against the estate of Annie Reed, deceased, on which this suit is based, and also a claim of appellee against the same estate for $200 for wages, both of which claims appear to have been made out, subscribed and sworn to by appellee on the 26th day of December, 1907.

It is not for this court to say whether on this state of the record a verdict for appellee would he upheld. The questions here to he determined are, Is there a conflict in the evidence as to any material matter that necessitates the weighing of the evidence or passing on the credibility of the witnesses, and might two reasonable minds on hearing the evidence come to different conclusions as to what were the real facts in this case? We think both of these questions must be answered in the affirmative; that the evidence needs careful and considerate analyzation to determine whether there was a binding contract between the appellee and the deceased, to which both assented, based upon mutual considerations, on the one hand, that appellee would stay with the deceased so long as she should live, and on the other, that the deceased would devise to appellee $3,000, from which contract neither could recede without the consent of the other; or whether the various statements shown to have been made by the deceased were merely the expression of a benevolent intention on her part to bequeath that amount to ap-pellee as a recognition of her faithful service, and that two reasonable minds might well reach entirely opposite conclusions as to these questions. To peremptorily instruct a jury to render a verdict for the plaintiff under that state of facts is to invade the province of the jury and to deprive the parties of their constitutional right of trial by jury.

The giving of the peremptory instruction in this case was an error that must cause a reversal of this case.

The judgment is, therefore, reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Justice Graves

text:
    Kay Wood, Appellant, v. Universal Adding Machine Company, Appellee.
    Gen. No. 16,034.
    1. CORPORATIONS — when stock subscription not enforceable. Where a stock subscription is made upon the express condition that an assignment of foreign patents shall be made to the proper person as trustee for the benefit of particular persons, if such an assignment is not in fact made, such stock subscription cannot be enforced, and any payments made upon account thereof can be recovered by the subscriber making the same.

      Z. Corporations — lohen foreign statute authorising forfeiture of installments paid upon stock subscription will not be enforced. If such statute is operative only in connection with the by-laws of the corporation it will not be enforced in the absence of the introduction in evidence of such by-laws.
    3. Corporations — ivhen forfeititre of installments paid upon stock subscription will not be enforced. Where a demand for payment óf a balance due is not in accordance with the terms of the contract of subscription the board of directors are not authorized to enforce a forfeiture of payments theretofore- made.
    4. Contracts — remedies where corporation places itself in a position of inability to perform, in the case of a subscriber to capital stock. Where a corporation sells the stock subscribed for and thus places itself in a position where it cannot perform, the subscriber may treat the contract of subscription as rescinded and sue for the return of the money paid or may treat the contract as repudiated and sue for damages for its breach or may treat it as alive and sue for performance.
    5. Municipal court — when final judgment rendered on appeal. If a case is tried before the court without a jury and a finding and judgment is rendered for the defendant, the Appellate Court may enter final judgment for the plaintiff if the evidence shows he is entitled thereto.
    Appeal from the Municipal Court of Chicago,- the Hon. Frederick L. Fake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed December 13, 1911.
    Adams & Caudee, for appellant.
    Moses, RoseNthal & KeNNedy, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

The Universal Adding Machine Company, appel-lee here, is a corporation organized under the laws of the State of Missouri with its principal office in the city of St. Louis. In the latter part of 1906, they were engaged in manufacturing an adding machine, patented under the laws of the United States and numerous foreign countries. Its capital stock was $750,000. ■About that time, that corporation determined to increase its capital stock to $1,000,000, by issuing 2,500 shares of stock at the par value of $100 per share. After some negotiations appellant and other residents of Chicago subscribed for the whole of the proposed stock issue of 2,500 shares, appellant agreeing to take 25 shares and to pay therefor $2,500 on the terms and conditions contained in the following paper, signed by him, viz.:

“ Whereas, the stockholders of the Universal Adding Machine Company, a corporation under the laws of the State of Missouri and located in the City of St. Louis, in the State of Missouri, have, by resolution duly adopted on the 21st day of April, 1906, authorized an increase of its capital stock from seven hundred and fifty thousand dollars ($750,000), its present authorized capital stock, to one million dollars ($1,000,-000), such increase to be for the aggregate amount of two hundred and fifty thousand dollars ($250,000), divided into two thousand five hundred (2,500) shares of common stock of the par value of one hundred dollars ($100) each, so that the capital stock of said corporation, when so increased, shall consist of ten thousand (10,000) shares of common stock of the par value of one hundred dollars ($100) per share; and whereas, the said Universal Adding Machine Company, hereinafter referred to as “Machine Company,” is desirous of obtaining subscriptions for said two thousand five hundred (2,500) shares of proposed increase of capital stock; and whereas, the said Machine Company is the owner of certain letters patent issued by foreign countries; and whereas, the said Machine Company is in need of additional working capital with which to prosecute its business; and whereas, the said Machine Company has endeavored, but is unable, to obtain subscribers for the shares of said proposed increase of capital stock at their said par value unless and upon condition that said foreign patents are, without further consideration than payment at par for said proposed increase of capital stock, assigned, and transferred, absolutely, in trust for the beneficial use and ownership of such subscribers in proportion as their respective subscriptions and payments for shares of said proposed increase at par shall bear to the sum of two hundred and fifty thousand ($250,000) dollars.
“Now Therefore in consideration of the premises aforesaid, and of the assignment and transfer of said foreign letters patent to be made, or caused to be made, by the said Machine Company to James H. Eck-els, of the City of Chicago, Cook county, Illinois, or to some other person or persons or corporation to be designated by him, as trustee or trustees as aforesaid, I, the undersigned, do hereby subscribe for twenty-five shares of said proposed increase of capital stock and do hereby agree and obligate myself to pay therefor to the saicTMachine Company one hundred dollars ($100) per share, in installments as follows, to wit: A first installment of fifty dollars ($50) per share, payable on demand made by the said James H. Eckles and five (5) subsequent installments of ten dollars ($10) per share each, payable at intervals of not less than thirty (30) days each, on demand made by the said James H. Eckles, provided, however, that if said proposed increase of capital stock shall not.be duly effectuated according to law on or before the first day of March, nineteen hundred and seven (1907), and said assignment and transfer of said foreign letters patent is not made, as hereinbefore provided, on or before said first day of March, nineteen hundred and seven (1907), then my subscription hereunder shall be null and void, and all moneys paid by me hereunder on account thereof to fclie said Machine Company, shall forthwith thereafter be refunded to me on demand.
“Witness my hand this 15th day of October, 1906.
“Witness:
(Signed) Kay Wood.
1 certificate of 10 shares.
1 certificate of 15 shares.”

On December 28, 1906, James H. Eckels demanded of the subscribers for this additional stock issue, payment of 50 per cent of the agreed price and this was paid by all of the subscribers, appellant paying $1,250 on January 5, 1905, the same being 50 per cent of the amount for which he had subscribed.

On January 12, 1907, James H. Eckels by an instrument in writing designated one Dan Norman, as the trustee to whom the foreign patents should be assigned. And on the same day an assignment of all the foreign patents was executed and delivered to Norman as trustee, which assignment, omitting the description of the different patents, is as follows:

“This Indenture, made the 12th day of January, A. D. 1907, by and between the Universal Adding Machine Company, a corporation organized and existing under and by virtue of the laws of the State of Missouri, and having its principal offices and place of business located at the City of St. Louis, Missouri, assignor, and Dan Norman, of Chicago, Cook County, Illinois, trustee, WitNesseth:
“Whereas, the said assignor is, by virtue of certain specific and general assignments, the owner of the entire right, title and interest in and to certain inventions or improvements relating to certain improvements or inventions in Calculating Machines, generally known as adding machines, for which letters patent have been granted and applications made in foreign countries as follows: * * * * * ******** *
“Now This INDENTURE WitNesseth that in consideration of the sum of ten dollars ($10) and other good and valuable ¡considerations in hand paid, the receipt of which, is hereby acknowledged, the Universal Adding Machine Company has bargained and sold, and does by these presents assign and transfer unto the said trustee -and his successors in trust All those the letters patent and applications hereinabove mentioned, with all the rights thereby granted and now vested thereby in the said assignor including the right of applying for, and the rights in, and prolongation of, such letters patent, and all the property, claim and demand, both at law and in equity, of it, the said assignor, its successors and assigns, in or to said letters patent and applications and premises:
“To Have, Hold, exercise and enjoy said letters patent, applications and premises and all the rights thereby granted or which may be hereinafter granted, or in any wise thereto belonging, for and during the residue of the term of said letters patent and applications, or any prolongation of said terms, unto the said trustee and his successors in trust, for his use and advantage in as ample and beneficial a manner to all intents and purposes as the said assignor might or could have held or enjoyed the same if this transfer had not been made. Aud the said assignor covenants and agrees for itself, its successors and assigns, with the said trustee and his successors in trust that it has not assigned, in whole or in part, or otherwise encumbered, the said letters patents or applications, or premises aforesaid, or granted any licensee to any one to use the inventions the subject thereof. AND the said assignor covenants and agrees for itself and successors with the said trustee and his successors in trust that it shall and will from time to time and at all times hereafter during the term of said letters patent or applications, or any of them, or any prolongation of said term or terms, as may be reasonably required, by and at the sole cost and charge of the said trustee and his successors in trust, make and execute all necessary and proper deeds and writings for more effectually assigning and assuring said letters patent, applications and premises in the manner- aforesaid and according to the true intent and meaning of these presents.
“In WitNess Whereof, the said assignor, by virtue of resolutions of its Board of Directors authorizing it to do so, has caused these presents to he signed by its president and sufficiently countersigned by its secretary, and its corporate seal affixed thereto, at the City of St. Louis, Missouri, the day and year first above written.
Universal Adding Machine Company,
By Charles F. Bates,
President.
“Attested by Montague Lyon, secretary of the said Universal Adding Machine Company, "who affixed the corporate seal of said assignor hereto this 12th day of January, A. D. 1907.
Montague Lyon,
Secretary.”

This assignment was on the same day ratified by the patentees.

On the same day, January 12, 1907, Dan Norman executed and delivered to the defendant the following declaration of trust, viz.:

“This is to certify that the Universal Adding Machine Company, a corporation under the laws of the State of Missouri and located in the City of St. Louis, in said state, has this day delivered to me, Dan Norman, of Chicago, Cook County, Illinois, its assignments and transfer to me, as trustee, of foreign letters patent owned by it as therein mentioned, and that ‘Exhibit A, ’ hereto attached, is a true copy of said assignment and transfer; that said assignment and transfer was executed and delivered to me, as trustee, by the said Machine Company under and pursuant to the terms of the form of subscription agreement on the reverse side hereof; and that I, as trustee, hold said assignment and transfer subject to and under the terms of said agreement and subject to the payment of the full sum of two hundred and fifty thousand dollars ($250,000) to the said Machine Company by the subscribers for the proposed increase of the capital stock of the said Machine Company as therein mentioned and recited.
“Witness my hand this . day of January, 1907. ■
DaN. NoRmaN.”

On April 13,1907, the following paper was delivered to appellant by James H. Eckels, viz.:

“Chicago, April 13, 1907.
Kay Wood, Esq.,
Chicago, Ill.
My Dear Sir:
“I beg leave to herewith request that upon receipt of this, yon forward the balance due on your subscription for twenty-five shares- of Universal Adding Machine Company stock; upon receipt of this amount a temporary certificate will be issued to yon, and shortly thereafter yon will receive the stock certificates, as provided under the subscription made by you for the stock.
“Please forward me your check for $1,250, payable to James H. Eckels, trustee.
Yours respectfully,
(Signed)- James H. Eckels,
Trustee. ’ ’

No other demand was ever made on appellant for the payment of the balance of $1,250 of the agreed price of the stock subscribed for by him. On April 18, 1907, and on May 18, 1907, by letter, appellant declined to make further payments and requested ap-pellee to repay him the $1,250 already paid and demanded the return of the $1,250 already paid.

On December 17, 1907, the board of directors of appellee company adopted the following resolution:

“Wheheas, Kay Wood, of Chicago, Illinois, did heretofore subscribe for twenty-five shares, of the par value of one hundred dollars ($100) each, of the increase of the capital stock of Universal Adding Machine Company from seven hundred and fifty thousand dollars ($750,000) to one million dollars ($1,000,000), the amount of his said subscription being twenty-five hundred dollars ($2,500); and whereas, the said Kay Wood has heretofore paid on account of his said subscription the sum of twelve hundred and fifty dollars ($1,250), but declines and neglects to pay the balance thereof, to wit: the sum of twelve hundred and fifty dollars ($1,250), although the same is past due and payable.
“Now, Therefore, be it, and it is hereby resolved, that the said Kay Wood be, and is hereby required to pay said unpaid balance on his said subscription on the thirtieth day of December, 1907, and that in the event that he shall decline or neglect to pay said balance on said date, said twenty-five (25) shares of stock, subscribed for by him as aforesaid, and his said payment of twelve hundred and fifty dollars ($1,250) thereon, be forfeited to the use of the said Universal Adding Machine Company; and that a notice in writing, be served him by depositing the same in the post-office in the City of St. Louis, Missouri, properly directed to him at Chicago, Illinois, stating that he is required to make payment of said balance on the fifth day of March, 1908, at the office of the Universal Adding Machine Company, No. 3807 Laclede avenue, in the City of St. Louis, Missouri, and that if he fails to make the same, said twenty-five (25) shares of stock and his said payment of twelve hundred and fifty dollars ($1,250) thereon will be forfeited for the use of the Universal Adding Machine Company.”

During the time covered by these transactions, there was in force in the State of Missouri the following statute:

‘ ‘ SeotioN 961. Capital . Stock to be Paid, in What Manner. '
The Board of Directors, trustees or other body of persons lawfully exercising the corporate powers of any corporation, may require the subscribers to the capital stock of the company to pay the amount by them respectively subscribed, in such manner and in such installments as may be required by the by-laws. If any stockholder shall neglect to pay any installments, as required by a resolution of the board of directors, or persons exercising tlie corporate powers of such corporation, the directors or other persons exercising such corporate powers may declare his stock and all previous payments forfeited to the use of the company- but no stock shall be forfeited until they shall have caused a notice in writing to be served on him personally, or by depositing the same in the postoffice, properly directed to him, at the postoffice nearest his usual place of residence, stating that he is required to make such payment at the time and place specified in said notice, and that if he fails to make the same, his stock, and all previous payments thereon, will be forfeited for the use of the company, which notice may be served as aforesaid, at least sixty days previous to the day on which such payment is required to be made. ’ ’

Appellant did not pay the $1,250 on March 3, 1908, or at any other time. This suit is begun by appellant in the Municipal Court to recover the $1,250 paid on stock subscribed for. The declaration is in six counts.

In the first and second counts it is alleged, that the foreign patents agreed to be assigned for the benefit of the subscribers of the 2,500 shares of additional stock have not been so assigned. In the third and fourth counts it is alleged that the $1,250 was paid on the subscription contract set out; that no demand for the payment of the ten dollar installments was ever made in accordance with the terms of the subscription contract, but that the $1,250 was unlawfully forfeited by defendant. In the fifth count it is averred that the proposed increased issue of stock was never effectuated ; but this count was abandoned by appellant. The sixth count is the consolidated common counts with a bill of particulars setting out that the $1,250 was paid by appellant to appellee, subject to the conditions of the subscription contract, which conditions had not been performed in that the patents were not assigned, or the stock issued, as stipulated, but that the contract was repudiated. The plea of general issue was interposed to each, count of the declaration. The case was tried by the court without a jury. The judgment was for the defendant.

In the declaration of trust executed by the assignee of the patents, he undertook to construe the trust both as to the usees and uses, but appellee disclaims all responsibility for that instrument, and there is nothing in the record to show that it was made at the instance, or with the knowledge or consent of either of the parties to the subscription contract. Appellee contends, and we think correctly so, that the trustee was neither required nor authorized to execute this declaration of trust. So far as can be gathered from the record, the execution of this declaration of trust, as well as the construction in it placed upon the assignment of patents by the trustee, with reference to the questions as to whose use, for what uses, and upon what conditions the trust was held by him, were purely spontaneous and officious acts, and inasmuch as the same is not in accord with the terms either of the assignment or of the subscription contract, and were wholly unauthorized, it is difficult to conceive how either of the parties can be bound by it, or how the courts can consider it in determining their rights, or as taking anything from or adding anything to the assignment of patents, as executed and delivered. Whether the assignment so executed and delivered is the one contemplated by the parties to the subscription contract must be determined from a construction of those two papers.

By the terms of the subscription for stock, it was expressly agreed that on or before March 1, 1907, all foreign patents should be assigned absolutely to James H. Eckels, or to some one whom he should designate “in trust for the beneficial use and ownership” of the subscribers to the 2,500 shares of additional stock, “in proportion to their respective subscriptions and payments for shares, etc.” The assignment of all such foreign patents was in fact. made within the time limited in the stipulation to the person designated by James H. Eckels, as trustee, but there is absolutely nothing in that deed of assignment to indicate for whose use or for what use the foreign patents were to be held by the trustee. Neither the appellant nor any of his associates who had signed the subsérip-tions for the shares of stock, nor the subscriptions that they had signed for such stock, nor the uses for which the same were assigned, were in any way mentioned or referred to in this assignment. So far as anything in that assignment shows, it might well have been intended as an assignment for the use and benefit of an entirely different set of men, or for entirely different uses than those mentioned in the subscriptions for stock involved here. The mere fact that the patents were assigned to the proper individual as trustee cannot, by any rule of construction, be held to be an assignment for the benefit of the particular persons or for the particular uses mentioned in the subscription contract.

If it could be held that the declaration of trust referred to could be construed to be part of the assignment of the patents, or to limit the trust to the usees or uses for which, and the conditions subject to which, it was held, the situation would not be relieved, for while it declares the title to the patents to be held for the use of the signers of the subscription contracts, it further declares it to be held subject to the payment of the full sum of two hundred and fifty thousand dollars by such subscribers of stock, while by the contract of subscription, it was manifestly intended to be held as a protection and security to such subscribers for any partial payments on such stock that should be made by them, or, as expressed in the subscription contract, “In trust for the beneficial use and ownership of such subscribers in proportion as their respective subscriptions for shares shall bear to the sum of $250,-000,” and for a return to them, of such partial payments in case the Machine Company should become liable to return the same, as it was as security for the entire amount that should be invested in the venture. The contention made by appellee that so far as the declaration of assignment is in conformity with the contract of subscription, it should be held to explain or limit the trust, while so much of it as is not in con-. formity with such contract should be disregarded as surplusage, is not supported by either reason or authority. The fact that the trustee apparently guessed right about part of what the assignors likely intended by their deed of assignment can have no more legal significance than the fact that he guessed manifestly wrong as to the balance. It was in either case a mere guess or opinion authorized by no one and binding on no one.

It is suggested by counsel for appellee that the declaration of trust should be considered as an admission by the trustee “of the terms and conditions under which he held the foreign patents.” Even if he were a party to this suit, or was authorized to bind either of the parties to the suit by his admissions, the whole of his admissions should be taken together, and when so considered, would be an admission that he held the patents in trust for the subscribers of the 2,500 shares of stock, subject to the payment of the full sum of $250,000, which was not in accordance with the subscription contract. ¥e are, therefore, inclined to hold that the assignment of the patents made was not the one contemplated by the parties in their subscription contract, and that no such assignment as was contemplated was made before March 1, 1907, or at any time.

In the contract of subscription it was stipulated that if • * * * “said assignment and transfer of said foreign patents is not made, as hereinbefore provided, on or before the first day of March, nineteen hundred and seven (1907) then my subscription hereunder shall be null and void, and all moneys paid by me hereunder on account thereof to said Machine Company shall forthwith thereafter be refunded to me on demand.” Appellant having demanded the return of. the money advanced, after the time had expired for the making of the assignment of the patents for his use, without such assignment having been made according to the terms of the subscription contract, he was entitled to its return.

Notwithstanding the fact that appellee had failed to make the assignment of the foreign patents in conformity to the terms of the subscription contract, its directors on the 17th day of December, 1907, passed the resolution above quoted, by which resolution ap-pellee undertook to determine that appellant was in default in not paying the $1,250 still unpaid on his subscription, and to provide that in case it was not paid by December 30, 1907, the $50 per share already paid, as well as the stock subscribed for, would be forfeited to the appellee company. As to whether this proposed forfeiture was ever completed, the record is silent, but counsel for appellee says in his argument that the stock subscribed for by appellant was sold by appellee, and whether it was forfeited to the company before it was sold is immaterial to appellant or to the determination of this case, for in any event appellee, predicating its conduct on the supposed default of appellant in failing to pay the unpaid $1,250 on what appellee construes to be a proper demand, confessedly sold the stock and thereby placed it beyond its power to complete the sale to appellant by delivering the same to him. '

The section of the Missouri statute under which appellee assumed to act in passing the resolution above referred to was introduced in evidence and is above quoted in full. By reference to it, it will be seen that it is therein provided that the board of directors of corporations may require the subscribers to the capital stock to pay the amount subscribed by them “in such manner and in such installments as may he required hy the by-laws,” in default of which payment the same may be forfeited. The by-laws of ap-pellee were not introduced in evidence, so that it is impossible for this court to say that any of the bylaws of the company had been violated, or whether appellee had a legal right to forfeit the stock. It may, however, be safely assumed that no by-laws existed that could make a new contract for the parties, or require the payment for shares of stock subscribed for, at a different time or under different circumstances than was expressly provided for in the subscription contract. By that contract it was expressly stipulated that the subscriber obligated himself to pay for the stock, “$100 per share in installments as follows, to wit: a first installment of fifty dollars ($50) per share payable on demand made by said James H. Echéis, and five (5) subsequent installments of ten dollars ($10) per share each, at intervals of not less than thirty (30) days each.” Demand for the first installment of $50 per share was duly made and that installment was paid by appellant. On April 13, 1907, a demand was made in writing by Mr. Eckels for the payment at once in one installment, upon the receipt of the demand, of the unpaid balance of $50 per share. Just what reason moved the subscribers for this stock to provide in their subscriptions that the last $50 per share should be paid in five equal installments of $10 per share, and at intervals of not less than thirty days each and then on demand, the record does not disclose, although a number of sufficient reasons can easily be conceived. Nor is it important here to determine why the contract was so framed. We must take the contract as we find it. The provision referred to is a part and a material part of the contract. How and when the payments for the stock shall mature and be made is of the essence of the contract. The demand for the payment of- all these installments at one time and that at once was not according to the terms of the contract, and conld not operate to make all those installments due on the receipt of that demand, and the failure of appellant to comply with that demand did not operate to make him in default. Spangler v. Indiana & Illinois Ry. Co., 21 Ill. 275.

Besides this, on the 13th day of April, 1907, the time for the assignment of the foreign patents had elapsed, and as we have seen, no such assignment as was provided for in the subscription contract had been made, and appellee was itself in default, and had no right to demand the unpaid balance of $1,250, either in a lump sum or in installments, and appellant was under no obligation to pay, even if the demand had been made in strict conformity to the terms of the contract.

Having sold to others the shares of stock subscribed for by appellant, on the mistaken assumption that he was in default in not complying with the demand of April 13, 1907, appellee placed appellant in the position of electing whether he would treat the contract as rescinded and sue for a return of the money paid; treat it as repudiated and sue for damages for its breach; or treat it as alive and sue for performance. Lake Shore & Mich. So. Ry. v. Richards, 152 Ill. 59. He exercised this election by treating it as rescinded and beginning this suit for a recovery of the money, already paid. This he had a right to do. Ballance v. Vanuxem et al., 191 Ill. 319.

Appellant had a clear right to recover on two theories: First, under the terms of the contract by which it was provided that in case the foreign patents were not assigned by March 1, 1907, his subscription should he void and all moneys paid thereunder should be refunded; and second, on the repudiation of the contract by its acts, appellee was hound to return the $1,250 received on it, regardless of any stipulation in the contract so to do.

What has been said disposes of all material questions presented by the argument of counsel. The judgment of the Municipal Court was against appellant (the plaintiff below) for costs. This was error. On the record presented the judgment of that court should have been in favor of appellant, and against appellee for $1,250, and interest at the rate of 5 per cent per annum from April 18, 1907, the date of appellant’s demand for the return of the $1,250 advanced. The judgment of the Municipal Court is, therefore, reversed and judgment is entered here in favor of appellant and against appellee for $1,538.78, which includes interest at 5 per cent per annum from April 18, 1907, to date, and for costs in both courts. ,

Judgment reversed.


text:
    Martha Hoyt, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,128.
    1. Evidence — what essential to impeachment. Contradictory or impeaching statements in order to be competent must have been made prior to the giving of the testimony the force of which is sought to be broken.
    2. Evidence — what essential to introduction of impeaching. In order that impeaching testimony may properly be received a foundation therefor must be laid by calling the attention of the witness to the contradictory statements claimed to have been made by him.
    3. Evidence — when photograph competent. Held, that the photograph of the plaintiff, taken before the accident was properly admitted.
    4. Instructions — when particular phrase will not reverse. An instruction upon the subject of damages, held, not erroneous because of the use of the phrase as applied to the estimate of damages ‘ ‘ from 'the facts and circumstances in evidence.”
    5. Instructions — when use of particular word will not reverse. Held, that the use of the word “usually” in connection with the exercise of ordinary care, did not constitute reversible error.

      6. Instructions — referring jury to declaration for issues. Held, that it was not reversible error to refer the jury to the declaration for the issues without defining what such issues were.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed December 13, 1911.
    BeNjamih F. Rioholson and Ferdinand Goss, for appellant.
    H. W. Standidge, for appellee.
   Mr. Justice Graves

delivered t]ie opinion of the court.

This is a suit to recover for personal injuries said to have resulted to' appellee from being thrown from a street car belonging to appellant. Appellee recovered a judgment for $3,250. On the trial a statement in writing, claimed to have been made by one Dr. P. EEewetson to an agent of appellant, was, in accordance with a stipulation of the parties, read in evidence by appellant as the deposition of the doctor. The substance of the statement so read was that the doctor had treated appellee at several different intervals during a period of about twenty years prior to the accident for substantially all the troubles which appellee claimed on the trial were the result of injuries received at the time of the accident. In rebuttal appellee was permitted, over the objection of appellant, to prove that, after the statement in question was made by the doctor, a copy of the same had been shown him and that he had said, in substance, that it was not the ap-pellee, but was the appellee’s sister he had in mind, and referred to in the statement in question, as having been treated by him; that he had looked his books over anci found no charge against appellee, but had found one against her sister.

Counsel for appellee now claims this was impeaching evidence and that, as the objection to it was only general, it was properly admitted; that the only objection that conld have been availing was that no foundation for impeaching evidence had been laid. We are nnahle to agree with counsel in his major premise. The impeachment of witnesses by showing statements made by them out of court contrary to their testimony is of common occurrence, and may be properly resorted to whether the testimony of the witness sought to be impeached is given in open court or in a deposition. The contradictory or impeaching statements must, however, have been made prior to the giving of the testimony, the force of which is sought to be broken by the impeaching evidence. If this bare statement of this rule is not conclusive, mere reference to the further rule, requiring a foundation to be laid for such evidence by calling the attention of the witness to the contradictory language claimed to have been used by him, and the time when and the place where and the person to whom it was used before the impeaching evidence is admissible, shows its correctness.

No foundation for the introduction of the conversation, as impeaching evidence, could have been laid at the time the doctor gave his so-called deposition, for he had not then made the contradictory statements. What the witness testified the doctor said, that is claimed to be contradictory to his deposition, tended to show that he had made a mistake in his deposition, and that he had since discovered his error, and if it was true that he had made such a mistake, it was a fact which was pertinent to be shown by the doctor or any other person who had personal knowledge of it without laying any foundation for so doing, but which, like any other fact, must be shown by competent evidence and not by hearsay. That counsel who tried the case for appellee did not consider it impeaching evidence is shown by the reasons he gave to the court while urging its admissibility. He then said, referring to this conversation and after telling the court what he expected to prove and when it occurred: “Now that being a thing that occurred since the taking of the deposition, why couldn’t we put that in proof at this stage when they have an opportunity to run it down.”

The doctor, not being a party to the suit, and the conversation, having taken place in the absence pf appellant’s officers, its recital by a third person was hearsay and incompetent. Even if the evidence admitted could be held to be proper impeaching evidence, it clearly could not have been properly admitted. The situation is not unlike a case in which an affidavit is filed in support of a motion for a continuance based on the absence of a material witness, and the opposite party, for the purpose of avoiding a continuance, admits that the' witness, if present, would testify to the facts set out in the affidavit. In that class of cases it has béen repeatedly held in this state that such opposite party cannot thereafter show that such witness had previously made statements in conflict with the facts stated in the affidavit. The Chicago & Alton R. R. Co. v. Lammert, 19 Ill. App. 135; North Chicago St. Ry. Co. v. Cottingham, 44 Ill. App. 46; City of Aurora v. Scott, 82 Ill. App. 616. In the case entitled In the Matter of Noble, 124 Ill. 266, the deposition of a witness had been taken and no proper foundation had been laid for his impeachment, and the opposite party offered in evidence an affidavit of the same witness, made and sworn to before the deposition had been taken and contradictory of his evidence, but the trial court excluded it, and the Supreme Court held its exclusion was proper. This line of cases seems to rest on the theory that by admitting that the witness will swear to the facts, as set out in the affidavit, or by taking a deposition without laying a proper foundation for impeachment, the right to impeach the witness by' showing conflicting statements made ont of court is waived.

On the question of the assessment of damages, it was all important for- the jury to determine whether the statement of the doctor read in evidence was true. The amount of the verdict would indicate that the jury did not believe that statement to be true. In coming to that conclusion it was inevitable that the fact that the evidence showed the doctor himself had said that statement was untrue had a great, if not a controlling influence on the jury. The error in the admission of the hearsay evidence in question was highly prejudicial, and for that error the judgment must be reversed.

Other errors are complained of. Such of them as involve the weight of the evidence and the amount of the verdict, it would be improper for us now to discuss in view of the fact that the case must be submitted to another jury. The complaint that the court erred in permitting appellee to violate the stipulation by which the statement of the doctor was read in evidence as his deposition is not well taken. The statement was read in compliance with such stipulation, and when read, it was entirely proper for appellee to show by any competent proof that the facts contained in it were not true. The truth of the statement was not admitted by stipulating that it might be read as the deposition of the witness. The complaint that the photograph of appellee taken before the accident was improperly admitted is without force. Ve conceive of no reason why a photograph shown by the evidence to be a correct representation of a person, at a time when the issues in the case render proof of the personal appearance of such person necessary or competent, may not be introduced in evidence as properly as a photograph of a locality or of any inanimate object.

Complaint is also made to the giving of instructions numbers 11, 29, 31 and 32. In instruction No. 11 the jury were told that they could make their estimate of damages “from the facts and circumstances in evidence.” It would have been better if the words “bearing on the question of damages” had been added, but we do not think it likely that a jury would, by this instruction as worded, be misled into trying to determine the amount of damages from evidence that did not throw light on that subject, particularly when no exemplary damages were asked.

Instruction No. 29 is a definition of ordinary care and contains the following clause, “as an ordinarily prudent woman would usually exercise,” etc. The use of the word “usually” in that connection was criticized in Traction Co. v. Hansen, 125 Ill. App. 153; but its use was not in that case, nor has it been in any other case that we are aware of, held to be reversible error. It would be better to follow the beaten paths in drafting instructions, but the deviation from the approved form in this instruction is not in our opinion such error as should reverse the case. In Chicago City Ry. Co. v. O’Donnell, 208 Ill. 267, an instruction containing the same expression was approved, although the particular question here involved was not passed upon.

Instruction No. 31 states the law as to the preponderance of the evidence correctly, and has been frequently given and approved. Taylor v. Felsing, 164 Ill. 331. The case of Dowd v. Chicago City Ry. Co., 153 Ill. App. 85, was reversed for the refusal of the court to give this identical instruction.

Instruction No. 32 refers to the case made by allegations in the amended declaration. It is contended that the giving of this instruction was error, because the jury were not entitled to consider certain counts in the amended declaration, and because it referred the jury to the «ase made in the declaration without defining what the issues made by the pleadings were. Neither of these criticisms is tenable. The first objection is answered by saying that the court by other instructions in the series excluded from the consideration of the jury the counts referred to, and as to the last objection, the Supreme Court in Chicago City Railway Co. v. Foster, 226 Ill. 288, said: “Instructions to the effect that, if the plaintiff has proved the defendant’s negligence, as charged in the declaration, etc., then the. verdict should be for the plaintiff, have always, so far as we know, been held good.” ’While the giving of this instruction was not error, we feel constrained to say, where such an instruction is given, it is by far the better practice to instruct-,the jury what the issues made by the pleadings are.

For the error in the admission of evidence indicated the judgment must be reversed.

Judgment reversed and the cause remanded.

Reversed and remanded.