author: Mr. Justice Waggoner

text:
    The People of the State of Illinois, Defendant in Error, v. Henry Earl Reynolds, Plaintiff in Error.
    1. Mabriage, § 8

      —when consent of parents is necessary. The. general rule is that unless the statute expressly declares a marriage contracted without the necessary consent of the parents, or other requirements of the statute to be a nullity, the statute will be construed as directory in this respect and the marriage held valid, notwithstanding the statute entails penalties on licensing or officiating authorities who disobey its provisions.
    2. Husband and wise, § 272*—what marriage will support indictment for abandonment. A marriage contracted by a minor under a license issued without the consent of his parent or guardian and by the county clerk of a county other than that in which the minor resided must be treated as valid until declared void in a direct proceeding instituted for that purpose, and, until set aside by a competent tribunal, will support an indictment for wife abandonment.
    Error to the County Court of Macon county; the Hon. John H. McCoy, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    J. C. Lee, for plaintiff in error.
    Jesse L. Deck, C. T. Evans and A. R. Ivens, for defendant in error.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The plaintiff in error, hereinafter called defendant, was by the county court of Macon county found guilty under an indictment charging’ him with wife abandonment, and sentenced to pay a fine of $400 and cost, and to stand committed to the county jail until such fine and cost were paid. He was married on March 3, 1918, to Vera Hooker, who at that time was nineteen years of ag’e. Defendant was eighteen years old arid lived with his parents in Macon county. In order to get a marriage license defendant had Elmer Ellis, a man of mature years, go with Vera Hooker to the county clerk’s office at Urbana, Champaign county, where such marriage license was issued without the consent of defendant’s parent or guardian. Elmer Ellis signed defendant’s name to the application for a marriage license, and the county clerk understood that the license was for the parties present. In other words, that Elmer Ellis was Henry Earl Reynolds, the person to be married to Vera Hooker. While Elmer Ellis and Vera Hooker were in the county clerk’s office, the defendant was waiting for them outside the courthouse, where he received the license from Elmer Ellis, and went with Vera Hooker to the home of a minister in Urbana and the marriage ceremony was performed. As a result of the marriage the wife became pregnant. Upon learning that fact and assigning it as a reason for so doing, defendant' on November 14, 1918, abandoned his wife and this prosecution followed. The defendant seeks to have the judgment, rendered against him, set aside upon the grounds that the marriage is void by reason of the fact that he is a minor; that the marriage license was issued without the consent of his parent or guardian, and by the county clerk of a county other than that in which he resided.

Section 1, chapter 89, Hurd’s Revised Statute 1917 (J. & A. ¶ 7345) declares marriages between persons therein enumerated to be void, but does not include in such enumeration marriages in which one or both of the parties are minors. It has been declared that “the general rule is that unless the statute expressly declares a marriage contracted without the necessary consent of the parents, or other requirements of the statute, to be a nullity, such statutes will be construed to be directory, only, in this respect, so that the marriage will be held valid, although disobedience of the statute may entail penalties on the licensing or officiating authorities.” (Reifschneider v. Reifschneider, 241 Ill. 92; 26 Cyc. 835; People v. Ham, 206 Ill. App. 543, 550.) The marriage in question in this case must be treated as valid until declared void in a direct proceeding instituted for that purpose, and until set aside by a competent tribunal will support an indictment for wife abandonment. Barber v. People, 203 Ill. 543; People v. Ham, 206 Ill. App. 543, 550.

The judgment of the county court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John Wood, Executor, Plaintiff in Error, v. Logan A. Gridley, Trustee et al., Defendants in Error.
    1. Trusts, § 95

      —what is title of successor to trustee appointed l>y court under will. While, as a general rule, the title to the trust estate passes to the heirs of the deceased trustee, where the will creating the trust provides for the appointment of a new trustee, if from any cause the person named shall not act or shall cease to act as trustee, and, upon the death of such trustee, the court appoints a successor, the latter takes under the will and is vested, ipso facto, with the title to the trust premises and is clothed with, the same power as if he had been named in the will, and a conveyance to him hy the former trustee’s heirs or representatives is unnecessary.
    2. Trusts, § 111*—when trust is active. Where a trust created by a will directs the trustee to operate the trust property and divide the profits among the testator’s wife and children and their issue until the end of twenty-one years after the death of the widow, when the trust property should descend to the heirs of the testator’s body then living according to the laws of descent, such trust is active.
    3. Trusts, § 109

      —what is effect of Statute of Uses. The Statute of Uses does not execute an active trust or one under which the beneficiaries are indefinite and contingent until twenty-one years after the death of the testator’s widow.
    4. Estates, § 11*—when merger of legal and equitable estates does not exist. Where a will creating a trust provides that the trustee shall operate the trust' property and divide the profits therefrom among the testator’s wife and children in stated shares, the issue of any child to take the share which would have belonged to the parent, and that at the end of twenty-one years after the widow’s death, the property shall descend to the heirs of the testator’s body then living according to the laws of descent, and further provides for the appointment of a new trustee if, from any cause, the trustee named shall not act or shall cease to act, and the trustee named sells the trust property under a decree authorizing the sale and directing him to hold the proceeds subject to the execution of the trust, but without authority distributes the proceeds of the sale in equal parts to the widow, the two' surviving children of the testator, of whom the trustee was one, and the guardian of the minor child of a deceased child of the testator, it was held that there was no merger of the legal and equitable estates.
    5. Trusts, § 86*—when distributive interests under will are contingent. Where a will creating a trust provides that at the end of twenty-one years after the death of his widow, one of the beneficiaries, the trust shall determine and the trust property shall descend to the heirs of his body then living to be divided among them according to the laws of descent then in force, the distributive interests in the fund are contingent.
    6. Trusts, § 289*—what trust cannot be determined by consent. Where there are contingent interests in a trust which cannot be determined until the happening of certain events, the trust cannot be determined and the funds distributed by consent of the persons interested, and acts and conduct of persons to whom the trust funds are paid under such an agreement cannot work an estoppel which will defeat the trust.
    7. Trusts, § 132*—admission as estoppel preventing trustee’s performance. A trustee cannot make any admission which will estop him from performing his duty as trustee.

      8. Trusts, § 80—7iow construed. A trust created by a will must be controlled by the law applicable to trusts, and in dealing with it the rule that family settlements are the favorites of the law cannot be invoked to change the rules of law applicable to trusts.
    9. Trusts, § 294*—what distribution will not be protected by courts. The courts will not be astute to protect the estate of a trustee in the enjoyment of profit derived by him from an illegal distribution of the trust fund.
    Error to the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 27, 1920.
    Sterling, Livingston & Whitmore, for plaintiff in error.
    Barry & Morrissey, for defendants in error.

      See Illinois Notes Discst, Vola. XI to XV, and Cumulative Quarterly, same topic apd section number,

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

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

   Mr. Justice Waggoner

delivered the opinion of the court.

Asahel Gridley, died, testate, in the year 1881 in McLean county, Illinois, leaving Mary A. E. Gridley, his widow, and Edward B. Gridley, Albert W. Gridley, Mary Gridley Bell and Juliet Shonrock, his children. More than twenty years ago Albert W. Gridley died leaving one child, Logan A. Gridley. Mary A. E. Gridley died November 22, 1900. Edward B. Gridley died January 7, 1914, leaving a will in which John H. Wood was named as residuary legatee, devisee and executor.

Asahel Gridley, by his will, devised to his son Edward B. Gridley, as trustee, the gas plant and other property in the City of Bloomington. The will provided that the trustee should operate the gas plant and out of the profits thereon retain as full compensation for his services as trustee and also as a bequest to him of a part of the estate one-fourth of the net income; that one-third of such net income be paid to the testator’s wife during her life, and the remainder divided equally among three of his children, Albert W., Juliet and Mary; that in case Edward B. Gridley should not act" as trustee, then a new trustee should be appointed and receive a reasonable compensation for his services to be fixed by the court, and thereafter Edward B. Gridley should share equally with the testator’s children, the remainder of such net income after the payments above provided to the widow; that in the event of the death of the widow her distributive share of such net income should be equally divided among such of the testator’s children as may survive her or the issue of any children who may have died before the widow, the issue to take the share which would have belonged to the parent, and that at the end of twenty-one years after the death of the widow the trusts created should cease and be determined, and thereupon the property should descend to and become the property of the heirs of the body of the testator then living to be shared and divided among them according to the laws of the State of Illinois, then in force, regulating the descent of real estate.

By a codicil to the will the share of Juliet Shonrock was revoked and her share given to the other children, and it was provided that at the death of the widow the income should be divided among the other children, and at the end of twenty-one years the property should be divided among the heirs of the body of the testator except his daughter Juliet.

In the year 1899 a bill was filed in the circuit court of McLean county setting forth the advisability of selling the gas plant. A decree was rendered authorizing the trustee to sell the gas plant and directing that the proceeds derived from such sale be held in place of the property.by the trustee subject to the same directions mentioned in the will. The trustee sold the property for $20,000, and tfie sale was approved by the court. The order approving the report of such sale directed the trustee to deliver a deed to the purchaser and hold the proceeds of the sale subject to the further execution of the trust under the directions of the court.

Without any order of court, the trustee on October 1, 1899 (the next day after receiving the money), distributed it as follows: To Mary A. E. Gridley, the testator’s widow, $5,000; to Mary Gridley Bell, $5,000; to himself, Edward B. Gridley, $5,000; to N. J. Aldrich, guardian of Logan A. Gridley, $5,000.

After the death of the trustee, Edward B. Gridley, on January 7, 1914, Logan A. Gridley was appointed, by the McLean county circuit court, successor in trust under the will of Asahel Gridley. Logan A, Gridley as such trustee filed a petition in said circuit court directing the court’s attention to the foregoing facts, and prayed the court to direct him as to what action he should take. Upon that petition the court ordered him to bring a suit against the estate of Edward B. Gridley for the amount of the proceeds of the sale made in 1899 under the decree then rendered, and ordered that when he obtained judgment against the said estate to file a creditor’s bill against John EL Wood to set aside a fraudulent conveyance made by Edward B. Gridley of all of his real estate to John H. Wood. People’s Bank v. Wood, 207 Ill. App. 602.

Thereupon Logan A. Gridley brought an action at law against John H. Wood, executor of the will of Edward B. Gridley, deceased, to recover the amount of said trust fund. John H. Wood, as such executor, then filed a bill for an injunction against Logan A. Gridley, trustee, and others, seeking to enjoin the prosecution of the common-law suit. The bill was answered by Logan A. Gridley, trustee, who filed a cross-bill, praying for a decree against John H. Wood, executor, for the $5,000 retained by Edward B. Gridley and for one-fourth of the $5,000 paid to Mary A. E. Gridley, and afterwards inherited by Edward B. Gridley from Mary A. E. Gridley. A decree was entered in favor of Logan A. Gridley, trustee, on his cross-bill for the sum of $6,250. John H. Wood, executor,. has sued out this writ of error, and argues that the decree is erroneous for the reason that it was a family settlement; that there was a merger and that the defendant in error, Logan A. Gridley, as trustee, is estopped from maintaining' this suit and has no title under which he could maintain a suit.

The plaintiff in error suggests that on the death of Edward B. Gridley the title to the trust estate passed to the heirs of the deceased trustee. As a general rule this is correct. (Lawrence v. Lawrence, 181 Ill. 248, 252). But the fifteenth clause of the will of Asahel Gridley provides that “if from any cause said Edward B. Gridley shall not act or shall cease to act as trustee as aforesaid taking charge of and managing said gas works, then a new trustee and manager shall be appointed in his place, who shall receive a reasonable compensation for his services, to be fixed by the court appointing such new trustee.” In Yates v. Yates, 255 Ill. 66, 70, the court said: “The creator of a trust has full power to provide for the appointment of a successor or successors in trust in case the original trustee refuses to act, dies or is removed by a court of competent jurisdiction. (39 Cyc. 271, and cases cited; 1 Perry on Trusts, 6th Ed., sec. 287, and note.) If no provision is made by him for the appointment of a new trustee, the appointment by a court of chancery does not confer title to the real estate upon the appointee (West v. Fitz, 109 Ill. 425, 441-443), but if the substitution of a new trustee is provided for by the author of the trust, either by naming the person to be substituted or by giving the power of appointment to another, when the provision for succession is duly followed the substituted trustee takes under the will and derives the power to act from the act of the testator. (Leman v. Sherman, 117 Ill. 657; Lake v. Brown, 116 Ill. 83; 29 Cyc. 271.) Upon the appointment being made under the power, the new trustee becomes vested, ipso facto, with the title to the trust premises and is clothed with the same power as if he had been originally named in the will. No conveyance need be made to him by the former trustee, or by the former trustee’s heirs or representatives, if he be dead. (Craft v. Indiana, D. & W. Ry. Co., 166 Ill. 580; Reichert v. Missouri & I. Coal Co., 231 Ill. 238; Edwards v. Edwards, 22 Ill. 121; 39 Cyc. 312, and cases cited.) ”

There was no merger of the legal and equitable estates in this case for several reasons. The trust is» active, not passive, and therefore the Statute of Uses did not execute it and there was no merger. (Lord v. Comstock, 240 Ill. 492, 503; McFall v. Kirkpatrick, 236 Ill. 281, 294.) The beneficiaries are indefinite and contingent until the expiration of twenty-one years after the death of Mary A. E. G-ridley and for that reason too the Statute of Uses did not operate so as to execute the trust and there was no merger. (Silverman v. Kristufek, 162 Ill. 222, 229.) Nor does the fact that one of the beheficiaries is the trustee bring about a merger or defeat the trust. Summers v. Higley, 191 Ill. 193, 196; Burbach v. Burbach, 217 Ill. 547, 550.

The fifteenth clause of the will of Asahel G-ridley provides that “at the end of twenty-one years after the death of my wife, and not sooner, the trusts by this paragraph created shall cease and be determined together with the covenants and distributions herein provided for and thereupon said real estate, gas works, franchise, street mains and all property pertaining thereto, and all improvements and extensions thereof shall descend to and become the property of the heirs of my body then living, to be shared and divided amongst them according to the laws of the State of Illinois, then ip force regulating the descent of real estate.” The distributive interests in the fund were, under the will, contingent. (Anderson v. Williams, 262 Ill. 308, 315; Stevenson v. Stevenson, 205 Ill. App. 15, 19.) "Where all the parties interested in the trust fund are sui juris they may consent to a termination of the trust and distribution of the fund (2 Perry on Trusts, sec. 920), but this rule has never been applied where there are contingent interests in the trust which cannot be determined until the happening of certain events or where the interests of minors are involved.” Anderson v. Williams, supra. It therefore follows that the acts and conduct of the persons to whom the money was paid, their interest being contingent, could not work an estoppel that would defeat the trust.. On the other hand the trustee could not make any admission that would estop him from performing his duty as trustee. Bragg v. Geddes, 93 Ill. 39, 58; Unity Co. v. Equitable Trust Co., 204 Ill. 595, 600.

The fact that family settlements are favorites of the law in nowise changes the rules of law applicable to this case. The trust created by the will of Asahel G-ridley must be controlled by the law applicable to trusts, and a family settlement could not change it. This is not a case for the application of any of the rules pertaining to family settlements.

The authorities cited on the question of a conditional decree show that a decree may be conditional, but have no bearing on the question of whether this decree should be conditional. The distribution of the fund on October 1, 1899, by Edward B. Gridley, was clearly wrong. No good reason is shown why his estate should not repay the part it has enjoyed by the illegal distribution. His estate should not be allowed to profit by his breach of trust. It is no concern of the court to protect a defaulting trustee from loss. Losses usually follow breaches of trust.

The decree entered in this case is right and must he affirmed. .

Decree affirmed.


text:
    Paul Murray, Administrator, Appellant, v. Standard Pecan Company, Incorporated, Appellee.
    1. Corporations, § 337

      —what corporations may purchase stock. A corporation for pecuniary profit has power to contract for the repurchase of its shares and such an agreement on its part is not ultra vires.
    2. Interest, § 4*—what allowed on agreement to repurchase stock. One who buys stock in a corporation from the corporation under an agreement that it will repurchase such stock from him at a specified price at the end of three years from the date of the sale, shall he so desire, is not entitled, in an action to recover upon such agreement, to receive five per cent interest from such date upon the purchase price, in addition to the dividends on the stock which he has received during the three-year period he has held it.
    3. Corporations, § 88*—when corporation cannot repudiate agreement to repurchase. Where a certificate of stock purchased by one from the agent of a corporation has indorsed upon it a stipulation that the corporation will repurchase the stock from him at a specified price at the end of three years from the date of sale, shall he so desire, the transaction does not embody two separate elements, namely, a sale of the stock and an agreement to repurchase, so that the corporation can ratify one and repudiate the other as unauthorized, but is but one transaction, the elements of which taken together constitute a conditional sale.
    4. Corporations, § 88*—what is effect of repudiation of agent’s agreement. Where a certificate of stock in a corporation is sold by its agent with the indorsement thereon that the corporation will repurchase it at the buyer’s option, in an action on such agreement to repurchase, if the corporation repudiates the indorsement as the unauthorized act of the agent, it must refund the purchase price to the stockholder, less the dividends he has received, if it does not repudiate the agent’s act, it is bound by the agreement to repurchase.

      5. Executors and administrators, § 498

      —what is proper form of judgment against estate. In an action brought by one as administrator of the estate of a named person, deceased, a judgment that defendant have and recover costs against such person, “admr., etc.,” and that execution issue therefor, is improper because he is not personally liable, and if it be intended to be against the estate, it should be adjudged to be paid in due course of administration and no execution should issue.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed April 27, 1920.
    Leslie J. Owen and Stone & Dick, for appellant.
    Livingston & Whitmore, for appellee.

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

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

   Mr. Justice Waggoner

delivered the opinion of the court.

B. M. Nicholson, an agent of appellee, Standard Pecan Company, was authorized to sell shares of its capital stock and for that purpose blank certificates were given him signed by the president and secretary, sealed with the seal of the company, with authority to fill the blanks with the name of the purchaser, number of shares and date of sale, but he was not given authority to sell shares of stock with a condition attached for the repurchase of the same by the company. On September 12, 1912, he sold to Alexene O. Murray, now deceased, one hundred shares of stock upon the condition that appellee would at the end of three years from that time repurchase them at $11 a share upon thirty days’ notice at the option of the owner. A stipulation to that effect signed, “Standard Pecan Co., per B. M. Nicholson,” was written upon the back of the certificate of stock and in that form it was delivered to decedent, who thereupon paid B. M. Nicholson, for the use of appellee, $1,000.

On the trial of the case, in the circuit court, it was stipulated that the officers of the company did not know of the condition above specified until after the death of the decedent and the lapse of three years from the date of the certificate, when a notice to repurchase was given in compliance with the terms of the writing on the back of it; that upon the receipt. of such notice the company repudiated such writing upon the ground that the agent had no authority to "make a conditional sale of the stock nor enter into any agreement that the company would repurchase it.

Alexene G-. Murray on October 1, 1912, received a dividend of $3.49, and on April 1, 1913, a further dividend of $35 on the stock held by her.

Upon the refusal of appellee to repurchase the stock in question this suit was instituted and heard by the court upon a stipulation of facts, and judgment was rendered that the defendant (appellee) “have and recover of and from the plaintiff Panl Murray, admr., etc., its cost in this behalf expended, and that execution issue therefor.”

Appellant submitted to the court five propositions to be held as law in the decision of the case: (1) That the defendant company had the power under the law to contract for the repurchase of its shares of stock and that such agreement upon its part would not be ultra vires; (2) that the agreement entered into between R. M. Nicholson, purporting to act for the defendant company, and Mrs. A. G-. Murray, plaintiff’s intestate, was an agreement for the conditional sale of stock; (3) that the defendant company, if it desired to repudiate the act of its agent in entering into such a contract, must repudiate it in its entirety, that it could not ratify so much of the agreement as would constitute a sale of stock and at the same time repudiate the express condition upon which it was sold; (4) that the defendant company having repudiated the act of its agent in entering into the agreement, between plaintiff’s intestate and R M. Nicholson acting as agent for the defendant company, was bound under the law to repay to plaintiff’s intestate or to plaintiff the sum of money which plaintiff’s intestate had paid under such agreement for the purchase of stock; (5) that plaintiff is entitled in addition to the return of the money to interest thereon at the rate of five per cent from the date of said agreement.

The court held, as being the law, the first of such propositions and refused the remaining ones. The correctness of the court’s holding as to the first proposition is not questioned, and cannot be as to-the fifth for the reason that appellant would not be entitled to receive five per cent interest in addition to the dividends paid to Alexene G-. Murray.

The transaction between the agent and Alexene G. Murray was not a sale of stock and in addition thereto an agreement to repurchase so that the principal could ratify an authorized act of the agent and repudiate an act not authorized. It was not two acts but one act as denominated in the stipulation of facts “ a.conditional sale of stock.”

The purchase made by decedent, and for which the money was paid, was a certificate of stock with a purported agreement by appellee to repurchase it indorsed thereon. If such indorsement is not valid on account of want of authority on the part of appellee’s agent to make it, then the "whole contract fails for the reason that appellant’s intestate was a party to no contract of which the indorsement was not a part. Appellee must treat what was done, in reference to the sale and purchase of the stock, as a whole and either ratify or repudiate the entire act of the agent. If appellee does the former, it must repurchase the stock on the terms stated in the stipulation. If the act of the agent is repudiated, appellee must refund the money received with interest thereon, less the amount of dividends paid. Eberts v. Selover, 44 Mich. 519, 38 Am. Rep. 278.

The contract in question consisted of that which appears on the face and back of a certificate of stock, which taken together constitute a conditional sale (Roush v. Illinois Oil Co., 180 Ill. App. 346, 348), and appellee cannot separate the parts and ratify one, and thereby make it an absolute sale enuring to its benefit and repudiate the remainder. Taylor v. Conner, 41 Miss. 722, 97 Am. Dec. 419 (421); Sternbach v. Leopold, 50 Ill. App. 476 (496).

If the judgment rendered is against Paul Murray, individually, it is not right, because he instituted this suit as administrator of the estate of Alexene G-. Murray, deceased. If it can be said that a judgment rendered against Paul Murray “admr., etc.,” is against the estate of which he is administrator, it would be wrong for the reason that a recovery against an administrator should be adjudged to be paid in due course of administration (Watts v. Hoffman, 77 Ill. App. 411), and no execution should be awarded. Bull v. Harris, 31 Ill. 487.

The court erred in not holding propositions numbered two, three and four as law in the decision of the case. The judgment rendered is also erroneous, and is reversed and this cause remanded.

Reversed and remanded.


author: Mr. Justice Waggoner Mr. Presiding Justice Graves,

text:
    Lotus Grain & Coal Company, Appellant, v. L. E. Zimmer, Appellee.
    1. Contracts, § 190

      —how instruments constituting contract construed. Where two instruments are executed as evidence of one transaction they should be construed as one instrument.
    2. Salk,s, § 15*—when contract not invalid for want of mutuality. In a contract for the purchase of corn at a certain price “to be received- at * * * in good condition, on or before (at our option) Dec. 31, 1917,” the words “at our option” modify “on or before” and not the phrase “to be received” and consequently the contract is mutual, the purchaser not being given an option to receive the corn but an option as to the time of its delivery.
    Appeal from the Circuit Court of Champaign, county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed.
    Opinion filed April 27, 1920.
    Dobbins & Dobbins, for appellant.
    Green & Palmer, for appellee; William G. Palmer and Oris Barth, of counsel.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

Appellant, Lotus Grain & Coal Company, entered into a written contract with appellee, L. E. '’Zimmer, under date of August 20, 1917, for the purchase of 2,000 bushels of corn at $1.00 a bushel to be delivered on or before (at the option of the company) December 31, 1917. Appellee having failed to deliver the corn on demand of appellant made about the middle of December, appellant brought an action in assumpsit in August, 1918, to recover damages for a breach of the contract and produced evidence showing that corn had advanced to $1.68 a bushel at the time of the breach. At the close of appellant’s evidence the court directed a verdict for appellee, overruled a motion for a new trial, and entered judgment in bar of the action.

The contract consists of two parts. A.t the time it was signed it was on. one sheet of paper with a vertical perforated line through, the center of it. The left side was the sale portion and was signed by appellee. The right side was the purchase portion signed by appellant. After it was signed by both parties it was torn in two along the perforated line. Appellee took and retained the portion signed by appellant. The portion signed by appellee was retained by appellant. Both parts were set out in the second count of the declaration as constituting the contract and were admitted in evidence without objection. Appellee suggested that the record show that he produced the part signed by the company in response to a notice from the appellant. A copy of the material parts of the writing is as follows :

Lotus, Ill., August 20, 1917.

‘ ‘ This is to certify that I have sold to Lotus Grain & Coal Co., two thousand bushels of No. 4 yellow corn inspection at $1.00 per bu., to be delivered in good condition at Lotus, Ill., on or before Dec. 31, 1917. * * * In case of failure to deliver any or all of said grain I agree to recompense buyer for loss resulting from such failure.

L. E. Zimmer.

Lotus, Ill., August 20, 1917.

“This is to certify that we have bought from L. E. Zimmer two thousand bushels of No. 4 yellow corn inspection at $1.00 per bu., to be received at Lotus, Ill., in good condition, on or before (at our option). Dec. 31, 1917. And we agree to pay for the above grain at time of delivery as above specified * * *.

Lotus Grain & Coal Co.”

Appellee contends that, under a proper construction of the contract, appellant was not bound to receive any com; that the parenthetical expression “at our option” modifies and limits the words “to be received”; that the contract means that the grain •company “promised to receive the corn at its option;” that the contract was not mutually binding on both parties and was therefore void for want of mutuality.

Appellant contends that the words “at our option” refer to the time of delivery and gives the grain company an option to specify the time of delivery between the date of the contract and December 31, 1917. Appellant demanded delivery of the corn about the middle of December and appellee failed to deliver it.

The object of courts is the enforcement of contracts rather than their evasion. (Miedema v. Wormhoudt, 288 Ill. 537, 540). “A contract should be construed in such a way as to make the obligation imposed by its terms mutually binding upon the parties, unless such construction is wholly negatived by the language used. Bishop on Contracts, sec. 417; Bangor Furnace Co. v. Magill, 108 Ill. 656.” Torrence v. Shedd, 156 Ill. 194, 211. “The rule is, that where the terms of a contract are susceptible of two significations, that will be adopted which gives some operation to the contract, rather than that which renders it inoperative. (Thrall v. Newell, 19 Vt. 202; Evans v. Sanders, 8 Port. (Ala.) 497.) A contract should be construed in such a way as to make the obligations imposed by its terms mutually binding upon the parties, unless such construction is wholly negatived by the language used. Torrence v. Shedd, 156 Ill. 194, 211.” Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, 94. See also, Dreiske v. Davis Colliery Co., 156 Ill. App. 291, 296.

No rule of interpretation is more familiar than that when two instruments are executed as the evidence of one transaction, they should be construed as one instrument. Gardt v. Brown, 113 Ill. 475, 478. It is said in Illinois Match Co. v. Chicago, R. I. & P. Ry. Co., 250 Ill. 396, 400: “Where two written instruments are executed as the evidence of one transaction, they -will be read and considered together as one instrument in arriving at the intention of the parties. (Gardt v. Brown, 113 Ill. 475; Crandall v. Sorg, 198 Ill. 48; Gould v. Magnolia Metal Co., 207 Ill. 172; 1 Greenleaf on Evidence, sec. 283.) Under that rule the shipping order delivered by the plaintiff to defendant and the bill of lading delivered by defendant to plaintiff constituted the contract between the parties for the carriage of the matches.”

The rule of grammatical construction of language is that a qualifying word or phrase ordinarily refers to its' nearest antecedent. Perry v. J. L. Mott Iron Works Co., 207 Mass. 501.

Approaching the construction of the writing with the foregoing principles in mind, we do not look at it as two conflicting instruments, but as one contract, which, construed as a whole, gives the grain company the option of specifying the time for delivery between the date of the contract and December 31, 1917. Grammatically the words “at our option” modify “on or before” and to contend that they modify the words “to be received” would violate the rules of grammar as well as render the contract invalid.

Instead of the construction that makes it mutual being wholly negatived it is the construction that good English and the foregoing rules of construction require. This is tacitly admitted by appellee in his brief as he always rearranges the words so that the words “at our option” follow the words “to be received” instead of the words “on or before.” For example, he states the buyer promised “to receive it at its option.” If this were permissible then it would be permissible to rearrange the words so that “at our option” would immediately follow the word “bought.” The court might well disregard grammar and punctuation to reach a construction that would render the contract valid but it would not do this in order to reach a construction that would render the contract invalid. 6 R. C. L. 845-846. The circuit court erred in construing the contract to be invalid for want of mutuality. Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, 92-94; Phelps v. McGee, 18 Ill. 155, 158; Dreiske v. Davis Colliery Co., 156 Ill. App. 291.

The evidence of willingness and ability to perform was sufficient for the case to be submitted to the jury. Galena & C. U. R. Co. v. Rae, 18 Ill. 488, 491; Pahlman v. King, 49 Ill. 266, 269; Wolf v. Willits, 35 Ill. 102. It is only where there is no evidence that a verdict may be directed. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Killough v. Chicago, B. & Q. R. R. Co., 158 Ill. App. 152.

The judgment rendered in this case is reversed and the cause remanded.

Reversed and remanded.'

Mr. Presiding Justice Graves,

specially concurring.

Specially concurring contracts should always be construed and enforced according to the manifest intention of the parties, if the same can lawfully be done without doing violence to the language employed in them. It is obvious that the contract here involved was intended to be and in fact was for the purchase and sale of corn at a specific price to he delivered at a specific place on or before a specific time, with the option on the part of appellant to require delivery at an earlier date if it should so elect. There is nothing-in the language employed, the evidence offered, or the experience of. men to suggest a contrary meaning. The attempt to distort this contract so as to mean something else is, to my mind, a subterfuge which would not have been resorted to by or for appellee if the price of corn had not advanced. Appellee should he held liable for his failure to perform his contract.


text:
    George L. Banks, Appellee, v. Walker D. Hines, Director General of Railroads, and Wabash Railroad Company, Appellants.
    1. Carriers, § 248

      —what are matters of common knowledge as to shipment■ of live stock. It is a matter of common knowledge that railroad companies are advised of approaching storms and of changes in weather conditions, and that when weather conditions are such that railroad companies are unable to transport stock to market, shipments are refused.
    2. Carriers, § 71*—when carrier of goods is negligent. A carrier is guilty of negligence in accepting a shipment when it knows, or ought to know, that it cannot handle the shipment to its destination.
    3. Carriers, § 181*—when knowledge Of limitations in Mil of lading must he shown. Even if the shipper signs a bill of lading containing limitations on the carrier’s liability, the burden is still on the carrier to show by evidence aliunde that the restrictions or limitations of the common-law liability contained therein were understandingly assented to by the shipper.
    4. Carriers, § 178*—lohen shipper’s assent to limitations is not shown. Evidence of a shipper that he signed one of the contracts for shipment and the other was signed by his agent, that he has been engaged in shipping cattle about six years and has had in his possession contracts of this character signed by him in duplicate when shipping cattle, does not establish that he assented to the restrictions of the carrier’s liability contained in such contracts.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    John E. Hogan, for appellant.
    John J. Burlington and James L. Drennan, for appellee.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

On December 9, 1917, appellee delivered to the Wabash Railroad Company, at Taylorville, Illinois, three carloads of cattle to be transported by it to the National Stock Yards at East St. Louis, for market, and on Januáry 9, 1918, three carloads of hogs to be transported to the Union Stock Yards in Chicago, also for market. It is not disputed that both of these shipments were delayed en route, arriving at their respective destinations later than they should have arrived, and that by reason of such delays appellee sustained losses.

It is the contention of appellee that the delays were the results of negligence and carelessness of appellant. The latter claims that there was no negligence on the part of the railroad company in the operation of its trains engaged in taking either the cattle or hogs to market, but that the delay, in each case, was occasioned by an act of Cod; that on December 9, 1917, and on January 9, 1918, severe blizzards interfered with transportation preventing prompt deliveries of appellee’s stock, and thereby caused whatever losses he sustained.

The evidence shows the issuance and, delivery to appellee, by the railroad company, of a shipping contract at the time each shipment was made. Both contracts contained the following clauses:

“It is agreed that neither the party of the first part, or any connecting line, should be responsible for any delay caused by storm, failure of machinery or cars, * * *

“In consideration of the rate aforesaid, it is further agreed that no claim for damages which may accrue to the party of the second part under this contract shall be allowed or paid by the party of the first part, or sued for in any court, by the party of the second part, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the party of the second part, or his or their agent, and delivered to the Freight Claim Agent of the party of the first part, at his office in the City of St. Louis, within ten (10) days from the time said stock is removed from said cars; * *

On the trial of this ease by the court, a jury having-been waived, judgment was entered in favor of appellee for $1,045.75 and cost. Appellant submitted, at the conclusion of the evidence, propositions to be held as law, and the same were denied. The denial of the propositions and rendition of the judgment are the errors complained of. The evidence shows the cattle should have reached East 'St. Louis about nine o’clock Monday morning, December 10, but did not do so until about two o’clock in the afternoon of the following day; that the hogs should have gotten to Chicago Thursday morning, January 10, instead of the next morning at eleven o’clock; that it was cold and snowy when the cattle were loaded and the weather bad all the next day. Henry Buesinger, who shipped cattle from Taylorville on the same train with those of appellee, testified that he went on a train to East St. Louis Monday morning. On account of the cattle not getting there that day he returned home at night, and again went to East St. Louis Tuesday morning, -thus showing that there had not been a storm sufficient to stop the operation of trains, not only prior to the time the cattle should have arrived, but up to the time they did arrive. The records of the Illinois Weather Bureau showed that on December 11, the day the cattle got to East St. Louis, twenty-eight hours late, a blizzard- swept over Illinois, with stormy winds, drifting snow and rapidly falling temperature, causing the most general and complete transportation paralysis in many years, if not in the history of Illinois. Notwithstanding this alleged transportation paralysis, the train with the cattle in question reached its destination in the afternoon, and this storm certainly furnishes no excuse for the delay that had taken place prior to its occurrence.

The evidence shows nothing as to weather conditions at the time of shipment of the hogs, but that on the next day, being the day on which the shipment should have .gotten to Chicago, the temperature ranged from twenty degrees above to ten degrees. below zero, and that the next day it stormed. Appellant proved the weather conditions as above stated, which was not controverted, and then argues that the delays complained of were caused thereby. No witness testified as to the cause of either delay. The reasons, if any, for the delays in the shipments are known to the trainmen who had charge of the trains that handled the stock, but none of them were called as witnesses or their absence accounted for. It is a matter of common knowledge that railroad comp anies are ádvised of approaching storms and of changes in weather conditions, and that when weather conditions are such that railroad companies are unable to transport stock to market, shipments are refused. A carrier is guilty of negligence in accepting a shipment when it knows, or ought to know, that it cannot handle it to its destination in a reasonable time. Mueller Grain Co. v. Lake Erie & W. R. Co., 213 Ill. App. 114-115, and cases cited.

The writer of .appellant’s brief says that “we understand the rule of law to be that the burden is upon us to establish the contract and knowledge of its contents on appellee’s part.' We believe, in this case, that we are fully up to the requirements of the law in this regard and show that the signature to the contract was authorized by appellee; that he waf* familiar with the terms of the contract and is bound thereby,” and then particularly calls attention of the court to the case of Black v. Wabash, St. L. & P. Ry. Co., 111 Ill. 351 (361). To be within the rule laid down in that case avails nothing, since the Supreme Court in a later case (Illinois Match Co. v. Chicago, R. I. & P. Ry. Co., 250 Ill. 396 [401], referring to it, says: “That decision was overruled in Wabash R. Co. v. Thomas, 222 Ill. 337, where it was held that even If the shipper signs the bill of lading containing limitations on the liability of the carrier, the burden is still on the carrier to show by evidence aliunde that the restrictions or limitations of the common-law liability contained therein were assented to by the shipper. Of course, this does not mean that there must be a verbal contract in addition to the written one, but means that the evidence must show that the contract was understandingly entered into by the shipper and its limitations assented to.”

The only testimony in regard to the execution of the contracts or knowledge of their contents was that given by appellee when called as a witness by appellant. Appellee testified that he signed the contract in reference to the shipment of the cattle; that the other contract was signed by some one authorized by him to ship the hogs; that he has been engaged in the shipping of stock about six years, and has had in his possession contracts of this character gigned by him in duplicate when shipping hogs. This testimony does not establish that appellee assented to the restrictions, upon appellant’s liability, contained in the contracts. Baltimore & O. S. W. R. Co. v. Fox, 113 Ill. App. 180 (187).

The judgment entered in the circuit court was right, and is affirmed.

Judgment affirmed.


text:
    S. C. Van Horn, Appellee, v. William A. Stautz, Appellant.
    1. Sales, § 401

      —when evidence shows breach of warranty. In an action to recover damages alleged to have been sustained by breach of an express warranty of the soundness of hogs bought by plaintiff from defendant, evidence examined and held, though conflicting, to support a verdict for plaintiff.
    2. Sales, § 404*—what is measure of damages for breach of warranty. In an action to recover damages for breach of an express warranty of the soundness of hogs bought by plaintiff from defendant, if there is a fair cash market value for the hogs diseased as they were shown to have been when delivered to plaintiff, the correct measure of damages is the difference between such value and the fair cash market value of sound hogs.
    3. Sales, § 404*—when commodity has marhet value. For a commodity to have a market value, there must be a market for it, that is, a demand therefor and an ability from such demand to sell the commodity when a sale thereof is desired.
    4. Sales, § 404*—how damages may be proved. In an action to recover damages for breach of an express warranty of hogs, if the hogs are shown to have been diseased and, in such condition, had no market value, plaintiff’s damages can be established by showing the actual value and deducting it from the fair cash market value of the hogs if they were sound.
    5. Sales, § 404*—what is amount of damages where goods are of no value. In an action to recover damages for breach of an express warranty of soundness of hogs sold to plaintiff by defendant, where plaintiff's evidence that the hogs were of no value is uncontroverted, he is entitled to recover the amount paid for them.
    6. Appeal and errob, § 1575

      —when amount of recovery cannot he objected to. Appellant cannot complain that the appellee was awarded a less sum than that to which he was entitled under the evidence.
    7. Appeal and erbor, § 493*—when judgment cannot be objected to on appeal. In an action to recover damages for breach of an express warranty of the soundness of hogs, while plaintiff should not be permitted to recover the full amount paid for the hogs and at the same time to retain such of the hogs as lived, where the case is meritorious and the evidence shows that plaintiff was entitled to recover and the excessiveness of the verdict was not urged below as a reason for setting aside the verdict and granting a new trial nor assigned as error on appeal, the judgment permitting him to do so will be affirmed.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    A. E. and R. C. De Mange, for appellant.
    Frank Gillespie and Livingston & Whitmore, for appellee.

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

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

   Mr. Justice Waggoner

delivered the opinion of the court.

This is an action in assumpsit brought by appellee to recover damages alleged to have been sustained on account of a breach of an express warrant of soundness of one hundred and sixty-four hogs bought by him from A. R. Hollis, a salesman of appellant.

The hogs were sold and delivered at the railroad stock pens at Funks Grove, Sunday, September 29, 1918. The next morning after the sale they were hauled in wagons to appellee’s farm. Several of them were sick that afternoon. Tuesday morning fifty or sixty were sick and an additional twenty-five or thirty refused feed and water. A veterinarian was called and pronounced the herd infected with a disease known as mixed infection. As a result of the disease sixty-two of the one hundred and sixty-four hogs died, and the remainder, treated for mixed infection, lived. Ninety-six of the hogs, after being fed eighty-eight days, showed a gain of thirty-five and one-half pounds. The defense is, not that the hogs were sound, but that there was no warranty.

The testimony of the parties to the sale is diametrically opposed each to' the other. The salesman denied having warranted the soundness of the hogs, but insisted that no statements were made by him as to their condition other than expressions of opinions in reference thereto; that appellee-.bought the hogs relying on his own judgment after an inspection of them, together with an examination of an official health certificate issued by W. N. Bussell, a Deputy State Veterinarian, to the effect that he had inspected one hundred and fifty of the hogs contained in the car in which those in question had been shipped from West Plains, Missouri, to Punks Grove, Illinois, and found them to be free from symptoms of contagious, infectious or communicable disease, and that he (the salesman) had no information other than that so acquired by appellee.

Appellee testified that on September 21, 1918, Hollis asked him if he wanted to buy a load of feeding hogs ; that he (appellee) said that he wanted immune, healthy hogs weighing about one hundred pounds, and asked the price; that Hollis told him twenty cents a pound; that appellee said he would give that for good healthy immune hogs and Hollis said he would get them for him; that on Sunday morning, September 29, Hollis telephoned him that the hogs had arrived at Punks Grove that night; appellee asked if the hogs were all right; Hollis replied they were; appellee said that if they were not all right he did not want them; Hollis again said they were all right. After the telephone conversation appellee went to Funks Grove, where he met Hollis, and they together looked at the hogs,. Appellee further testified that after seeing the hogs he told Hollis he did not like the looks of them; that they looked gaunted up; Hollis said the appearance was caused by having been in the ear so long; that Lawrence Funk and Dean Funk had gotten hogs like them which were doing fine. Appellee said if they were not all right he did not want them at any price. Hollis again said they were all right. The hogs, to be taken by appellee, were then selected, a computation made, and a check given by him for $3,198 in payment for them.

Appellee is corroborated by two witnesses, who claim to have heard what was said to him by Hollis over the telephone, and by circumstances shown on the trial.

The jury accepted appellee’s version of what transpired prior to and at the time of the sale, and we would not set aside the verdict on the ground that it is against the weight of the evidence.

In the first instruction, given on behalf of appellee, the jury were told that if they found facts to be as therein indicated their verdict should be in favor of the plaintiff for such damages, if any, as they believed from the evidence he had sustained by reason of the hogs being diseased at the time of the sale. In appellee’s ninth instruction the jury were told that if they found for the plaintiff that they might fix the damages, if any, at such sum as from the evidence they found to be the difference between the fair cash market value of the hogs in question if they had been all right at the time they were delivered to .the plaintiff, and their fair cash market value as they actually were at the time of the delivery.

Appellant, in his brief, argues that the correct measure of damages is as stated in this last instruction, but that there "was no evidence before the jury to sustain it. Appellee, when testifying as a witness in his own behalf, was asked whether from his experience in handling and marketing hogs, he had an opinion whether the hogs in question had any market value on the day they were delivered to him. To this question appellant interposed an objection that it was incompetent, and improper, and the objection was sustained. Appellee was then asked whether he had an opinion as to the value of the hogs in question, on the day they were delivered, in the condition they were in. Appellant interposed the same objection and it was sustained. Appellee was again asked as to the market value, and as to their value on the day of the delivery. The same objection to each of these questions was made and sustained. So there is no proof of market value or value on the day of the delivery because of a general objection made, when such proof was offered, and sustained by the court. Appellee was asked as to the market value on Monday, the day following the sale and delivery of the hogs, the same objection was overruled, and he answered that they were not worth anything. On cross-examination he said he based his opinion' that they had no value on the ground that nobody woujd buy a sick hog to feed; that he based his opinion'that they had no cash market value on Sunday or Monday because they had no value as feeders; did not think they had a market value; nobody would buy them. L. M. Morin, veterinarian, testified the hogs, on Wednesday and Thursday following the sale, were all sick and had practically no market value. Appellant called no witness on the question of the value of the hogs, and appellee called none other than the veterinarian and testified himself. It is not controverted that if the hogs had been sound their fair cash market value would have been from eighteen to twenty cents a pound, and the latter price was paid for them.

The evidence shows the hogs were diseased at the time they were delivered to appellee, and if there was a fair cash market value for such hogs, the correct measure of damages would be the difference between it and the fair cash market value of sound hogs. In order to say of a thing that it has a market value, it is necessary that there should be a market for such commodity, that is, a demand therefor, and an ability from such demand to sell the same when a sale thereof is desired. (8 R. C. L. 488.) If the hogs, in the condition they were shown to be in, had no market value, then appellee’s damages could be established by showing the actual value (8 R. C. L. 488; 13 Ency. of Evidence, page 510), and deducting it from the fair cash market value of the hogs if they had been free from disease.

The evidence submitted to the jury was that the hogs were of no value, and appellant did not controvert it. If they were of no value, appellee would have been entitled to a verdict for $3,198, and that he was awarded a,less sum would be a matter that he alone (not appellant) could complain of, but the evidence shows that one hundred and two of the hogs lived, and appellee should hot have received the full amount paid for the hogs and have one hundred and two of them.

The evidence in this case discloses that appellee has a meritorious cause of action, and was entitled to recover. That the damages awarded by the jury are excessive was not assigned for error in this, court, and was not urged as a reason for setting aside the verdict and granting a new trial in the court below.

We believe that substantial justice has been done; that a retrial of the case would résult in a verdict for appellee, and while the record in this case is not free from error, we find none requiring a reversal, and the judgment will be affirmed.

Judgment affirmed.


text:
    S. C. J. Russell, Appellant, v. J. W. Sammons, Appellee.
    Auctions and auctioneers, § 6

      —when sale is complete. Where, under the terms of a public sale as stated in the bills advertising it and by the auctioneer before commencing the sale, on all amounts in excess of $10 a credit of three, six or nine months will be given the purchaser giving a bankable note drawing six per cent interest from the date of the’ sale before removing the property, and two heifers are struck off to a purchaser at $50 each, such sale became complete on the fall of the hammer, and the seller could not thereafter resell notwithstanding he retained possession of them until the purchaser could tender security for the purchase price as required by the terms of sale and notwithstanding such purchaser failed to furnish the price on the day at which he stated he would.
    Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed April 27, 1920.
    Samuel Naylor and O’Harras, Wood & Walker, for appellant.
    Scofield, Hartzell & Califf, for appellee.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

Appellant brought an action of replevin, before a justice of the peace against appellee, to recover possession of two Holstein heifers. The case was taken, by appeal, to the circuit court, where a jury returned a verdict for appellee and a judgment was entered thereon.

Appellee held a public sale, on his farm, in Hancock county, Illinois, on Friday October 12, 1917. Two Holstein heifers, one belonging to appellee and the other to his son, were struck off to appellant at fifty dollars each.

Appellant testified that after the sale he had a talk with appellee and made arrangements whereby he was to leave the heifers with appellee, and return for them on the next Sunday or the first of the week following the day of the sale, with a note for one hundred dollars signed by himself, together with William Dailey, Richard Wright or E. Y. Lenix, as sureties ; that he did return on Tuesday' October 16, with a note signed by himself and William Dailey, but did not find appellee at home; that he left the note with appellee’s wife who refused to let him have the heifers ; that he told the wife that he would come back for the heifers on Sunday October 23 ; that he did go back on that day, saw appellee, demanded the heifers and on such demand being made the only answer he received was, “Here take your note and go to hell with it”; that he refused to take the note, left the place and two days later brought this suit.

Appellee testified that appellant merely asked to leave the heifers until Sunday October 14; that he (appellee) consented to it, remained at home all that day and appellant did not come for them; that on Tuesday October 16, he sold his heifer to his son; that on Sunday October 21, he told appellant he had sold them because he did not think he (appellant) was going to take them; that he offered appellant the note, told him to go to hell with it, but appellant would not take the note.

Appellee’s sale was advertised by bills posted in the vicinity. The terms of the sale, as stated in the bills, and by the auctioneer prior to the commencement of the sale, were that all sums of ten dollars and under were to be cash. On all amounts in excess of ten dollars a credit of three, six or nine months would be given, by the purchaser giving a bankable note drawing six per cent interest, from the date of sale, before removing property.

Appellee, in his brief, says: “The sale did not become complete at the fall of the auctioneer’s hammer as appellant contends. * * * ' In this case the terms of sale were ‘all sums of $10.00 and under, cash; over that amount a credit of 3, 6 or 9 months will be given, purchaser giving a bankable note drawing 6 per cent interest from date of sale, before removing property.’ And the further terms agreed upon between appellant and appellee which the* jury have by their verdict determined were as follows, ‘that the appellant agreed to return and accept the property on the Sunday following the sale. ’ The sale was not complete until all these terms had been complied with by both parties. Morgan v. East, 126 Ind. 42.”

The case of Morgan v. East is not in point. In that case the purchaser was to give a note, with security, drawing interest and offered to pay cash in lieu of giving a note. His offer was not a compliance with the terms of the sale, and he was, for that reason, not entitled to possession of the property.

In the case of Wade v. Moffett, 21 Ill. 110, Moffett had a public sale at which a mule was struck off -to Wade for eighty-nine dollars. The terms of sale were a credit of nine months with approved security. Wade did not comply with the terms of the sale and never took possession of the mule. Moffett brought assumpsit to recover the price of the mule and secured a judgmentfor-eighty-nine dollars. On error the judgment was affirmed and’the court said: “The questions presented are, do the facts proved amount to a sale of the mule, and were the instructions given for the plaintiff proper, and those asked by the defendant, properly refused. It is a general rule of the common law as to sale of chattels that, as between the vendor and vendee no actual delivery, symbolical or otherwise, is necessary—the completion of the bargain being all that is requisite to pass the title, though not the possession, until the price be paid or satisfactorily arranged. In Noy’s Maxims, as quoted by Lord Ellenborough, C. J., in Hinde v. Whitehouse and Galen, 7 East, 558, it is said: ‘If I sell my horse for money, I may keep him until I am paid; but I cannot have an action of debt until he be delivered; yet the property of the horse is by the bargain in the bar-' gainor or buyer. But if he do presently tender me my money, and I do refuse it, he may take the horse, or have an action of detainment. And if the horse die in my stable between the bargain and delivery, I may have an action of debt for my money, because by the bargain, the property was in the buyer.’ So in 2 Blackstone’s Com. 448, citing Noy’s. Kent says (2 Com. 491): When the terms of sale are agreed on, and the bargain is struck, and everything that the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer.”

The court here commented on a large number of authorities to the same effect and continuing said: “In this case, the sale was at auction on nine months’ time, the purchaser giving bond and security. At the time of bidding,'the mule was struck off to Wade at eighty-nine dollars, and his name was entered by the witness as the purchaser, in the memorandum kept by him. The witness saw the mule about the plaintiff’s premises for two or three weeks after the gale, sometimes in the field and sometimes in the road. Another witness stated that he was present at the sale, and had a conversation with Wade, in which he proposed to purchase a mule of him. WTade told him if he did not buy a mate for his mule at the sale, he would sell him his, and after the sale Wade declined selling. This was all the testimony for the plaintiffs, and it appears from it, there was a complete agreement to• buy on the terms proposed—‘a bargain was struck,’ and there can be no doubt, had Wade tendered the security and demanded the mule, he could have recovered in trover or replevin on refusal by Moffett to deliver it up. * * * The property was Wade’s, but he had no right to the possession of it until he had complied with the terms of the sale, or otherwise satisfied the price. Moffett had a right to keep the mule until they were paid or made secure, but had no right to sell to another without first having notified Wade that they should do so, if he did not comply with the terms of the sale. But it would seem they could not have an action against Wade for the price, even after the term of credit had expired, according to the rule in Hoy’s Maxims, until they had delivered the mule to Wade, or tendered him, and the case of Potter v. Coward, Meigs (Tenn.) 26, proceeds on this ground. The other cases do not, and we think as the sale was perfect between the Moffetts and Wade, the Moffetts could sue for the price, after the credit expired, without a delivery or offer to deliver, because the law giving them a lien on the mule, it wbuld be unreasonable to require them to relinquish it before they were paid the price agreed. According to the cases cited, had the mule died, or been lost, Wade would have to bear the loss. It is argued that the Moffetts should have given Wade notice to take the mule, and give his bond and security by a day named, and if he did not, they would sell the mule at public sale, and charge him with the difference in the price if the sale was at a loss, and so, too, after the terms of credit had expired. This the plaintiffs might have done. Chitty on Contracts, 431. They had an option, and having chosen to sue, and the instructions to the jury being right, we cannot interfere,”

It follows that the sale was complete at the fall of the hammer. True, appellee had the right to retain possession until the purchase price was paid or secured as required by the terms of the sale. Lucas v. Wallace, 42 Ill. App. 172-174. Nevertheless the sale was complete and the. risk of loss was on appellant. Sidwell v. Lobly, 27 Ill. 438, 439-440. The sale being complete, the appellee had no right to sell to another without first notifying appellant. Wade v. Moffett, supra. Instead of doing this, he made the sale and then notified appellant.

The trial court having adopted the theory of appellee in the trial of the case, it follows that the judgment should be reversed.

It is not necessary to consider other matters presented by the assignment of errors.

Reversed and remanded.


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    Jennie L. Hardinger, Appellee, v. E. B. Gaines, Appellant.
    1. Pleading, § 131

      —what is effect of filing replication. By filing a replication to a plea, plaintiff admits that the plea is good in law and raises an issue on the facts alleged therein.
    2. Judgment, § 502*—what matters are concluded by divorce decree. Though the defendant wife in a divorce proceeding brought in a Minnesota court denies all the charges made in the bill and alleges that the husband is indebted to her in large sums for money loaned him by her and for money of hers converted by him, to which the husband replies denying indebtedness to her and setting up the statute of limitations, the fact that a decree is entered granting the husband a divorce and finding that the allegations in the husband’s reply were true and that the wife’s allegations as to the husband’s indebtedness were untrue and that the wife is not entitled to any relief “in this action,” such decree is not an adjudication by the court upon promissory notes given by the husband to the wife while the marital relation still existed, so as to bar an action by the wife on such notes in Illinois, especially where one of such notes did not become due until long after the decree was" entered, and the transcript of the record of the Minnesota decree was properly excluded.
    3. Divorcie, § 58

      —-what may he included in decree. The court has not jurisdiction in a divorce proceeding by a husband to pass upon the wife’s contention that the husband is indebted to her for money loaned and for money of hers converted by him nor upon the reply thereto denying indebtedness and setting up the statute of limitations.
    4. Conflict of laws, § 14*—what may he presumed as to foreign decree of divorce. In the absence of proof it will be presumed that the limits on a court’s jurisdiction in divorce proceedings are the same in Minnesota as in Illinois.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, .presiding. Heard in this court at the October term, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 27, 1920.
    Stephens & Wicks, for appellant.
    O. M. Jones, for appellee.

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

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The declaration, filed in this case, consists of the common counts and a special count upon two promissory notes given by appellant to appellee, who at the time of the- execution and delivery of such notes was his wife. Appellant filed a bill for divorce in the district court of Lyon county, Minnesota, to which an answer was filed denying all the charges therein contained in regard to any cause existing for a divorce; alleging that appellant was indebted to app ellee for large sums of money paid out by her for him; for money loaned him and for the payment of which appellee held his notes; and for money belonging to appellee converted by appellant to Ms own use. In such answer appellee asked that an accounting, between her husband and herself, be had and that all claims of appellee be fully determined, adjusted and settled. Appellant replied to the answer, derned being indebted in any way to Ms wife, and alleged that all the claims set forth in her answer were barred by the statute of limitations.

A decree was entered in the divorce suit finding that all the allegations in appellant’s reply were true; that all the allegations of appellee’s answer' relating to indebtedness were untrue; that the court had jurisdiction of the subject-matter of the action' and of the parties thereto; that appellant was entitled to judgment against appellee dissolving the marriage relation, granting a divorce, and that appellee was not entitled to any relief in that action.

To the declaration appellant filed a plea of general issue and a further plea alleging appellee ought not to maintain her action because she had heretofore impleaded him in the district court of Lyon county, Minnesota, in an action for divorce “for the nonperformance of the identical promises averred and mentioned in the said declaration filed herein,” and after-wards by the consideration and judgment of said district court it was adjudged that the marriage relation between the plaintiff and defendant in said action be dissolved, and that appellee was not entitled to any relief in said action; that such decree was in full force and effect, not vacated, annulled or reversed, and concluding with a verification.

Appellee filed a replication to this plea alleging “it is not true that the matters involved in this case were adjudged by the court of Minnesota in any such manner as to constitute a bar or estoppel in tMs case,” concluding to the country. Issue was joined on this plea. Evidence was heard on behalf of appellee, after which, as part of Ms case, appellant offered in evidence a certified copy of the decree of such district court, properly authenticated under the provisions of an act of Congress, and on the objections of appellee interposed to its ádmission in evidence, (1) that it was immaterial because it did not show an adjudication of any matter in issue in this case, and (2) that there was no proof of the law of Minnesota as to whether a court in a divorce case had jurisdiction of a matter of that kind, the record was not admitted.

Judgment was rendered, in the circuit court, in favor of appellee for $2,000, and the only error argued is the refusal of the court to admit the record of the decree of the district court in evidence.

No demurrer was interposed to the plea, but appellee having filed a replication to it thereby admitted that the plea was good in law, and raised an issue on the facts alleged in it. Garden City Sand Co. v. Christley, 289 Ill. 617, 622; Perry v. U. S. School Furniture Co., 135 Ill. App. 1.

The decree of the district court of Lyon county, Minnesota, as it appears from the transcript offered in evidence is as follows:

“It is ordered, adjudged and decreed, that the marriage relation and contract of plaintiff and defendant in this action, be and the same is hereby dissolved and the plaintiff and defendant be, and they are hereby, divorced from the bonds of matrimony, and that the defendant is not entitled to any relief in this action.”

So much of the decree as dissolved the contract of marriage and granted a divorce can, of course, have no possible bearing on the present case. The remaining portion “that the defendant is not entitled to any relief in this action” obviously does not amount to an adjudication, by the court, of the claims made by appellee in her declaration in this case. On the contrary it is a refusal by the district court of Lyon county, Minnesota, to take jurisdiction of the subject-matter involved in the present ease. A good reason for the refusal of the Minnesota court to take jurisdiction is apparent from the fact that the three thousand dollar note now sued on was not due until after the death of the father of appellant, who, the record shows, died in January, 1917. The Minnesota decree was entered December 4,1906, and the note was therefore not due at the time of the entry of the decree. Further, in Illinois, a court in a divorce proceedings would not have jurisdiction of the matters set up in appellee’s declaration. It is probable that the same is true as to the law in Minnesota. In the absence of proof-, the presumption is that the law of a sister State is the same as that of Illinois. Nehring v. Nehring, 164 Ill. App. 527, 530. But, whatever the reason, it is plainly evident that the decree of the Minnesota court did not adjudicate the present claim made by appellee in this case. The trial court was right in refusing to admit the transcript of the record of the decree of the Minnesota court in evidence, for the reason that it was wholly immaterial and irrelevant, as it did not show an adjudication of the matters set up in appellee’s declaration and did not prove or tend to prove the appellant’s plea.

The judgment of the circuit court was right and is affirmed.

Judgment affirmed.


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    A. J. Sellers, Appellee, v. Puritan Product Company, Appellant.
    1. Courts, § 31

      —when record does not comply with rules of Appellate Court. Record considered and held not to comply with the rules of the Appellate Court as to the arrangement of the record according to the chronological order of the parts nor as to the manner of preparing the record with regard to numbering of the pages, references, etc.
    2. Appeal and error, § 893*—when judgment not shown by abstract. Where the abstract fails to show any judgment was entered by the trial court except by two references, one of which states “Page of Record, 10, Judgment,” on which page of the record no judgment appears, and the other of which merely contains the words “Judgment or Verdict,” there is no judgment whereon to base a review.
    3. Appeal and error, § 1096*—what matters are improperly included in brief. It is improper, under rule 23 of the Appellate Court, for an appellant to incorporate in his brief errors assigned upon the record which are not argued.
    4. Appeal and error, § 1712*—whey, error assigned is waived. Errors assigned which are not argued in the brief filed are waived.
    Appeal from the Circuit Coirt of De Witt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    Herrick & Herrick and E. B. Mitchell, for appellant.
    A. F. Miller and Gray & De Boice, for appellee.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The several parts of the record, filed in this case, are not arranged according to their chronological order and rules nine and ten of this court in reference to the manner of preparing records of inferior courts have been wholly disregarded.

The pages of the record are not numbered, but the abstract, except the last ten pages thereof, purports to contain references to various pages of the record by numerals on the margin. In the last ten pages of the abstract no references whatever are made to the record.. The bill of exceptions is first set out in the record and covers more than, two hundred pages. The abstract refers to pages, from one to ten both inclusive, as showing the placita, copy of process, pleadings, verdict of jury and judgment of the court, none of which appear on such pages, and then again refers to pages six, seven, eight and ten as being parts of the bill of exceptions. It does not appear from the abstract that there was a judgment against the appellant, for the rendition of which it has assigned error. The only attempts to show a judgment are on pages two and ninety-four of the abstract. On page two appears the words, “Page of Record,. 10, Judgment.” No judgment appears on such page of the record. On page ninety-four of the abstract, appears the words, “Judgment on Verdict,” with no reference to a page in the record. Words like “Judgment” or “Judgment on verdict” are a mere index, and do not furnish material upon which to base grounds for reversal. Where the abstract fails to show any judgment was entered by the trial court, there is nothing to review. People v. Shapiro, 203 Ill. App. 292; Flaningham v. Hogue, 59 Ill. App. 315; Amundson Printing Co. v. Empire Paper Co., 83 Ill. App. 440.

Rule twenty-three requires appellants to make a statement, in their briefs, of the errors relied upon for a reversal. No others are to be stated. There are twenty-three errors assigned upon this record, many of which are without merit, and instead of assigning the errors it intends to argue and rely upon for a reversal, as required by the rule, appellant incorporated in its brief the twenty-three errors assigned upon the record, and then argues but few of them; All errors assigned and not argued in the brief filed are waived. (Harvester Co. v. Industrial Board, 282 Ill. 489, 492.) There is no point in stating alleged errors in a brief that are not to be argued and relied upon, unless it be to show a disregard for the rule of court or to increase the compensation of the printer of such a brief.

For the reasons above indicated the judgment of the trial court will be affirmed.

Judgment affirmed.


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    Daniel Cohen et al., trading as David Cohen and S. E. Wolf, trading as Goodman & Wolfe, Appellants, v. City of Danville, Appellee.
    1. Appeal and bbbob, § 1718

      —what is waived by appeal to Appellate Court. The constitutionality of a municipal ordinance is for the determination of the Supreme, Court, and such question is waived hy taking an appeal to the AppeUate Court.
    2. Municipal cobpobations, § 93*—when ordinance is presumed valid. The presumption is in favor of the validity of a municipal ordinance, and the burden is on one who attacks it as unreasonable to show affirmatively and clearly that it is so.
    3. Municipal cobpobations, § 847*—when ordinance regulating ¡unit dealers is not unreasonable. The fact that the ordinance establishing the territory in which junk stores and junk yards may be located includes in the prohibited area some territory which would be suitable and proper for conducting such business and practically restricts the lawful location of such business to the residential portion of the city does not render such ordinance unreasonable.
    4. Municipal cobpobations, $ 91*—what court may determine invalidity of ordinance. The legality or illegality of an ordinance is purely a question of law which a common-law court is competent to decide.

      5. Injunction, § 92

      —when court of equity will not enjoin ordinances. A court of equity will not restrain a prosecution for the violation of a municipal ordinance except to prevent irreparable injury or a multiplicity of suits.
    6. Injunction, § 92*—-when irreparable injury is not shown. The allegation in a bill to restrain the enforcement of the provisions of an ordinance regulating the location and licensing of junk stores and junk yards, that under such ordinance complainants would be required to move their business outside of the prescribed boundaries before a certain date and to erect buildings and equipment at a cost of .not less than $15,000, and that by reason of a federal embargo there is a shortage of material and labor which will make the removal in the time fixed practically impossible is not a sufficient showing of irreparable injury where the ordinance does not contain such requirement and complainants further allege that they do not intend to move their business but intend to retain their location.
    7. Injunction, § 92*—when ‘multiplicity of suits warranting restraining of ordinance does not appear. A bill to restrain the enforcement of a municipal ordinance regulating the location and conducting of junk business which alleges that there are other firms, corporations and property owners affected by the purported ordinance and that the suit is brought on behalf of the complainants as well as all other persons, firms or corporations similarly situated and doing business in said city and the owners of property included in the district described in the ordinance in which the conduct of junk business is prohibited, but not alleging the business in which the other firms, corporations and owners are engaged, nor how thé ordinance affects, nor making any claim that they are being prosecuted, threatened with, or liable to, prosecution for violation of the ordinance, does not make such a showing of a multiplicity of suits as to warrant the court in restraining the enforcement of the ordinance on such ground.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    Swallow & Bookwalter, for appellants.
    W. O. Edwards, O. M. Jones and A. A. Johnson, for appellee.

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

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The City of Danville, appellee, passed an ordinance to regulate the location of junk stores and junk yards and the licensing thereof outside of certain limits. Section one, of the ordinance, provided that “on and after January 1, 1919, it shall be unlawful to locate, build, construct, keep, conduct, operate or maintain a junk store or junk yard, either at wholesale or retail within one hundred feet of any church, public or parochial school or hospital in the city or in the following described territory,” and then describes the territory. Section two declares it to be .unlawful, after January 1, 1919, to locate, build, construct, keep, conduct, operate or maintain any junk store or junk yard in any other territory in said city than such as it described in section one of such ordinance, without first having obtained a license therefor. The two remaining sections of the ordinance are in reference to the contents of an application for a license and the penalty for violations of the provisions of the ordinance.

At the time the ordinance was passed four of the appellants, in the name of one of them, and the remaining appellant, under a firm name, were operating two junk stores and junk yards within the. limits prohibited by the first section of the ordinance.

Appellants filed a bill" in equity seeking to enjoin the enforcement of the provisions of the ordinance asking that it be decreed, by the court, to be invalid, null, void and of no force or effect. A demurrer was interposed to the bill on the ground that appellants had a complete and adequate remedy at law. The demurrer was sustained. The bill was dismissed for want of equity. Appellants assign as error the action of the court in dismissing the bill; deny that they have a complete and adequate remedy at law and insist that a court of equity should take, jurisdiction for the purpose of preventing a multiplicity of suits and irreparable injury, and determine whether or not the ordinance is constitutional and reasonable. So the question of the constitutionality of the ordinance and whether or not it is reasonable is presented for determination.

If there is a question of the constitutionality of the ordinance to be determined, that would be a matter for the Supreme Court and was waived by,the appeal to this court. Pittsburg, C., C. & St. L. Ry. Co. v. City of Chicago, 242 Ill. 178, 185.

The presumption is in favor of the validity of the ordinance and it is incumbent upon appellants, who are attacking it as being unreasonable, to show affirmatively and clearly that it is so. (People v. Village of Oak Park, 266 Ill. 365, 370.) The allegations of the bill, filed in this case, to show wherein the unreasonableness of the ordinance consists are, “that the boundaries fixed in section one within which it is declared to be unlawful to operate a junk yard on and after January 1, 1919, is unreasonable in this that it includes territory within said ■ boundaries which is suitable and proper for conducting said business and at the same time makes the residential portion of said city practically the only territory in which a junk store can be legally located.”

Appellee has a right, under power conferred by clause ninety-five, of section sixty-two, chapter twenty-four of Hurd’s Revised Statutes (J. & A. ¶ 1334) to direct the location of junk stores and junk yards and it would be a difficult matter to establish a boundary in which such stores and yards might not be located that did not include some territory suitable and proper for said business. The fact alone that some of such territory is so included within the prohibitory boundary would not render the ordinance unreasonable nor could it be said, as a matter of law, that the ordinance was unreasonable in making the residential portion of the city practically the only territory in which such business could be conducted. Proof of the facts as they exist might result in a different conclusion. The legality of illegality of an ordinance is purely a question of law, which the common-law court is competent to decide. (Poyer v. Village of Des Plaines, 123 Ill. 111, 115.)

Appellants recognize the rule that courts of equity will not interfere to restrain a prosecution for the violation of a municipal ordinance except to prevent irreparable injury or a multiplicity of suits and to bring themselves within the first exception the bill, after setting out the ordinance in full, alleges that “under and by virtue of the terms of said ordinance it is provided that the complainants must move their business so established * * * fr0m their present respective locations to some point outside the boundaries prescribed in said ordinance on or before January 1, 1919, or be subject to a fine”; that the business of complainants is such that it would require buildings with certain appliances and equipment to be erected at a cost of not less than $15,000; that there existed an embargo by the U. S. Government, on the construction of business buildings and the shipping of building materials of all kinds from the date of the passage of the ordinance to the first day of December following; that there is a shortage of building materials and of labor both skilled and common making it physically impossible to remove their business to some location outside the limits prescribed within the required time.

The ordinance does not contain the above quoted provision. While the existence of such an embargo and difficulty in procuring labor and materials would seriously affect persons desiring to construct buildings, it certainly would have no effect on any one not intending to do so, and we take it, from the allegations in the bill, that complainants are in the latter class, as they not only allege no disposition on their part to remove their places of business, if the same could be done, but do allege that they intend to con-, tinue in their present locations after January 1, 1919, for the reason that the ordinance is null and void.

The question that confronts appellants, as a result of the passage of the ordinance, is not the difficulties and expense of the removal of theii; places of business to another part of the city but whether or not they can continue in their present locations. Appellee with power so to do has ordained that they cannot do it.

Appellants to bring themselves within the second exception, above noted, allege that there are other firms, corporations and property owners affected by the purported ordinance, and that this suit is brought for and on behalf of the complainants as well as all other persons, firms or corporations similarly situated and doing business in the City of Danville and the owners of property included in the district described in the first section of the ordinance.

There is no allegation as to the business in which the other firms, corporations or property owners are engaged, nor how they are affected by the ordinance in question, or any claim that they are being prosecuted or threatened with a prosecution for its violation, or liable to any prosecution.

The allegations of the bill in reference to irreparable injury or multiplicity of suits would not justify a court of equity in enjoining appellee from enforcing the provisions of the ordinance, nor in declaring it to be invalid and of no force or effect. There is no reason apparent to us why the validity of the ordinance may not properly be determined by a court of law.

Decree affirmed.


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    Illinois Coal Operators Mutual Employers Liability Insurance Company et al., Appellees, v. Chicago, Wilmington & Vermilion Coal Company et al., Appellants.
    1. Insurance, § 30

      —how statute as to liability of member is construed. Hurd’s 1915 Rev. St. ch. 73, par. 309 et seq. [Callaghan’s 1916 Stat. If 6607(1) et seq.] cannot be construed as making the members of an insurance company organized thereunder not liable for losses existing at the time policies were issued to them.
    2. Statutes, § 207*—what construction of statute will not be adopted. A construction which will make it practically impossible to administer an act will not be adopted unless such construction was the plain meaning and intent of the legislature.
    3. Insurance, § 30*—what is extent of liability of member of mutual company. Under Hurd’s 1915 Rev. St. ch. 73, par. 317 I Callaghan’s 1916 Stat. f 6607(9)], which makes premiums paid and dues constitute the capital of insurance companies organized thereunder, the promise of one who becomes a member of such a company to pay premiums for one year constitutes his contribution to its capital and he is liable to the full amount thereof where it is necessary to pay creditors and cannot avoid payment of the remainder of the premiums by securing the cancellation of hij policy.
    Appeal from the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the October term, 1919.
    Oertiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 27, 1920.
    William E. Wheeler, for appellants.
    Stuart Brown, for appellees.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The Illinois Coal Operators Mutual Employers Liability Insurance Company was organized in the year 1905, under an act of the legislature approved May 26, 1905, for organizing mutual insurance companies to furnish insurance against loss to members in consequence of accidents to employees. [Chapter 73, par.’s 309-334, Hurd’s Statute 1915, Callaghan’s 1916 Stat. [¶] 6607(1) et seq.] It was dissolved in April 1915, leaving debts unpaid, and afterwards filed an amended bill in the circuit court of Sangamon county against one hundred or more policyholders and former policyholders. The prayer of such amended bill was for an accounting, marshaling of assets, judgments against the various defendants for such amounts as may be ascertained to be due the company, the appointment of a receiver, the ascertainment and payment of debts.

An interlocutory decree was entered, in the cause, in which the court construed the statute, and laid down the method whereby the master in chancery should make computation and report to the court. After this was done a final decree was entered in which it was decreed, among other things, that the Big Muddy Coal & Iron Company pay $3,000; the Lumaghi Coal Company, $4,436.62; the Moffat Coal Company, $345.93, and the Williamson County Coal Company, $1,877.03. These four companies have appealed.

Appellants concede that if the court properly construed the statute, the evidence justifies the amounts of the decree against them. Each appellant held a policy or policies in the Insurance Company for a term of one year. The premium specified, in each policy, was a certain rate per hundred on the pay roll of the insured during the time the policy was in force. At the instance of the appellants the Insurance Company canceled the policies prior to the expiration of the year.

The circuit court held that the total premium for the entire year was liable for the losses of the company occurring before appellants became members of the Insurance Company, even though the policies were canceled at the instance of appellants prior to the expiration of the year. The assignments of error question this ruling. Appellants make two claims, (1) that they are not liable for the debts existing at the time they became policyholders; and (2) that they are not liable after the policies were canceled. They contend that by section six, of the act, they are liable only so long as they shall continue to be insured, and during the period of insurance only are bound to pay such expenses as may accrue in the management of such company. They further contend that as losses occur, under section six, the Insurance Company would be compelled to make assessments; that if the losses were more than the premium notes, then the losses must be prorated; that what would otherwise be carried as a deficit would be avoided by charging it off after prorating the loss. Hence appellants claim they are not liable for the losses existing at the time policies were issued to them.

We believe that such a construction would make it practically impossible to administer the act. Claims cannot be settled promptly. Many of them must necessarily be delayed for several months or even longer in making settlements. It would practically be impossible to make every claim a period for a prorata settlement of the accounts. No fiscal year or other period for settlements and prorating of claims is fixed by the statute. Before adopting the construction, asked for by appellants, it should be clear that such was the plain meaning and intent of the legislature. We cannot say that such was the plain meaning and intention.

By-section nine, of the same act of the legislature, the premiums paid and dues constitute the capital of the company. It follows that when appellants became policyholders their promises to pay premiums for one year constituted their contribution to the capital of the Insurance Company. The policies might have heen canceled so as to relieve appellants from future payments, if the rights of creditors did not intervene. Appellants are liable, to the full amount of their subscriptions to the capital, where the same is necessary to pay creditors. Therefore, under the "facts existing in this case, they could not cancel their policies and thereby avoid payment of the remainder of the pre.mium stated therein.

The decree of the chancellor is affirmed.

Decree affirmed.