text:
    John J. Simonich, Appellee, v. Chicago and Alton Railroad Company, Appellant.
    Gen. No. 6,723.
    1. Appeal and error, § 1595

      —when defect in pleading is cured by verdict. Where there is a defect or imperfection in a pleading, whether of form or substance, which would have been a fatal objection on demurrer, yet of such, a character that if issue be joined thereon, it would necessarily require, on the trial, proof of the facts defectively or imperfectly stated or omitted, and without which proof it is not to be presumed that the trial judge would direct the jury, or the jury would have given the verdict, then such defect, imperfection or omission is cured by the verdict.
    2. Appeal and error, § 1611*—when defect in failing to allege manner of injury is cured by verdict. In an action under the Federal Employers’ Liability Act to recover for personal injuries alleged to have been received through the negligence of another employee of defendant in causing or permitting a bale of cotton, which such employees were unloading from defendant’s car, to faU upon plaintiff, any defect or omission in tailing to state in the declaration the particular fact or circumstance under which the employee caused or permitted the bale of cotton to fall and strike plaintiff is cured by the verdict.
    3. Master and servant, § 697
      —when negligence of coemployee is established. In an action under the Federal Employers’ Liability Act to recover for injuries received from the fall of a bale of cotton alleged to have been caused through the negligence of another employee charged with the duty of watching the cotton, which plaintiff was unloading, and keeping it from falling, evidence held to warrant a finding that such employee was charged by the foreman with such duties and that he was negligent in performing them.
    4. Master and servant, § 737*— when negligence of coemployee is question of fact. In an action under the Federal Employers’ Liability Act to recover for injuries received from the fall of a bale of cotton, alleged to have been caused by the negligence of another employee who had been charged by defendant’s foreman with the duty of watching the cotton and keeping it from falling, it is for the jury to determine .whether or not such employee had been charged with such duties and was negligent in performing them.
    5. Master and servant, § 206*—when master is liable for negligence of fellow-servant. While, under the Federal Employers’ Liability Act, the servant assumes all the ordinary and usual risks incident to the employment in which he is engaged, the' master is made liable not only for his own negligence but also for the negligence of a fellow-servant which may result in injury to his employees.
    6. Master and servant, § 206*—when negligence of fellow-servant is negligence of master. In an action under the Federal Employers’ Liability Act," the neglect of a duty with which a fellow-servant is charged by the master to assure the safety of his coemployees must be regarded as the master’s negligence.
    "7. Damages, § 128*—when damages for injury to foot are not excessive. In an action under the Federal Employers’ Liability Act, where there is evidence warranting a finding that plaintiff’s foot was permanently injured, and has become atrophied, deformed and practically useless for the rest of his life as a result of the injury and that he also suffered intense pain for a long period of time and from which he may never be entirely free, a verdict for $10,000, while large, cannot be justly regarded as excessive.
    8. Appeal and error, § 1631*—when prejudicial effect of improper remarles of counsel is obviated by withdrawal. A judgment for plaintiff in an action to recover for personal injuries will not be reversed on account of statements in the closing argument of plaintiff’s counsel as to the amount paid by defendant to procure the services of one of its witnesses as an expert, though such remarks were improper, since there was no evidence that defendant paid such witness, anything, where an objection was sustained to such remarks and plaintiff’s counsel withdrew them and admitted before the jury that he was in the wrong in referring to a matter as to which there was no proof.
    9. Appeal and eebob, § 1652

      -—when error in instruction as to negligence is cured, by other instructions. That an instruction given at plaintiff’s request in an action to recover for personal injuries does not limit to the declaration the negligence for which it states a recovery may be had is not ground for reversal where, by defendant’s instructions, the jury are expressly told that they have no right to find against defendant on any ground of negligence other than that stated in the declaration.
    10. Instructions, § 159*—how instructions are construed. In passing upon the correctness of instructions, the several paragraphs thereof must be considered together.
    11. Damages, § 200*—when instruction is not erroneous as incomplete. In an action under the Federal Employers’ Liability Act, it is not error, in an instruction which relates merely to the question of damages, to add, after defining the measure of damages “and if you believe from the evidence that the plaintiff was not guilty of any negligence which contributed to bring about his injury,” without further instructing the jury that they must also find from the evidence that defendant was guilty of the negligence as charged.
    12. Master and servant, § 430*—what is effect of contributory negligence in action under Federal Employers’ Liability Act. In actions under the Federal Employers’ Liability Act, contributory negligence, while not a defense, is a proper element to be considered by the jury in reduction of the amount of damages and may properly be adverted to in instructions concerning the measure of damages.
    13. Instructions, § 151*—when refusal of instruction is proper. The refusal of an instruction upon a question sufficiently and correctly covered in other instructions is not error.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 21, 1920.

      O’Donnell, Donovan & Bray, for appellant; Winston, Strawn & Shaw, of counsel.
    Snapp, Heise & Snapp, for appellee.

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

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This is a suit brought by the appellee, John J. Simonich, in the circuit court of Will county, under the Federal Employers’ Liability Act, against the appellant, Chicago & Alton Railroad Company, for personal injuries which he claims he suffered while in the employ of the appellant. The appellee was employed in the company’s yard at Joliet as a freight handler. On the day of the injury, the appellant had received a freight car loaded with 63 bales of cotton, which had been shipped from Little Rock, Arkansas; there were -22 bales in the car to be transferred, and sent to Janesville, Wisconsin. The freight car in question had been placed upon a sidetrack in the freight yards of the company for the purpose of having the 22 bales of cotton for Janesville taken out; the balance of the cotton was to be forwarded in the car to Shelboume Falls, Massachusetts. The car stood on the third track, near the freight house of the company, and west of the freight house platform; the tracks intervening were, occupied by vacant cars. In order to make the transfer, runways were laid down, connecting the car containing the cotton, with other cars alongside of it, and these intervening cars with the platform. The bales of cotton were approximately 5 feet long by 2 feet wide, and 2 feet in thickness. In loading the car, the bales had been packed standing up on end in rows of four, and a bale had been placed on the top of each row of four. The bales were heavy, weighing about 600 pounds apiece, covered with some kind of rough material, and bound with steel hoops. Those for Janesville were marked on the outside, to show their destination. The freight handler’s crew, which had charge of the work of taking out the bales for Janesville, consisted of a foreman by the name of Samuelson, and four other men, namely, Tony Saliese, Albert Von Esch, Lawrence' Von Esbh and the appellee. Under the instructions of the foreman, 'the crew went to work on the day appellee was injured to take the Janesville bales out of the car and transfer them by means of trucks to the freight house platform. The crew started to work about 11 o’clock in the forenoon, put in the runways, and opened the east car door, and immediately began to remove the bales, first talcing out those that were near the car door. The bales to be taken out were mixed to some extent with the other bales, so in order to get room to work, the crew under the direction and supervision of the foreman took out all the bales, which were in the space between the two doors of the car; and the bales thus taken out, which were for Janesville, were trucked over to the platform, and the others temporarily placed into one of the empty cars. Of the four men who constituted the crew, two had steel hooks to better enable them to handle the bales in pullihg them out, and putting them onto the trucks. The other two, namely, Lawrence Von Esch and the appellee, were doing the work of trucking, to transfer the bales as indicated. The bales in the space between the doors of the car and some bales from the south end of the car had been taken out in the forenoon. Among the bales which had been left in the car, however, was one bale which had been left standing in its original position at the east side of. the car immediately south of the east door. About noon the crew quit work, after getting out about 10 of the 22 bales of the Janesville shipment; some of the bales remaining in the car had been left standing singly without support.

The evidence tends to show that just before they quit their work at noon, the foreman directed Lawrence Von Esch to watch these bales and keep them from falling over. Apparently in order to comply with the foreman’s direction, when the men returned in the afternoon about pne o’clock, Lawrence Von Esch did not resume the work of trucking, but remained in the car to watch the bales and keep them from falling. Tony Saliese and Albert Von Esch went to work to pull out the bales, and the appellee alone did the trucking. Appellee had just transferred a bale of cotton.to the platform and had come back Avith his empty truck, and according to the testimony of Tony Saliese, who Avitnessed the injury, appellee had entered the car, and the bale which had remained standing alone next to and south of the east door fell on the appellee, and at the time it fell, appellee was facing toAvards the north where Saliese and Von Esch Avere at work in the car, and apparently was in the act of going to assist them. He was knocked doAvn, and his leg was caught and his foot crushed. This Avitness also testifies that when the bale fell on appellee; Lawrence Von Esch, who had been charged with the duty of watching the bales and keep them from falling, Avas standing in the. car near the bale that fell, and near the appellee, but had his face turned looking in the opposite direction, that is, towards the west; and it is a reasonable inference from this testimony that at that time he was not paying any attention to, or watching this bale which was apparently in danger of falling. There was a trial by jury, and a verdict and judgment for appellee for $10,000 damages, from which this appeal is prosecuted.

One of the contentions made by appellant concerns the declaration. The original declaration filed consists of two counts. Afterwards two additional counts were filed. It is claimed by the appellant that the case was tried on the negligence charge in the first count of the original declaration, and the first of the two additional counts; and that neither of these two counts state a cause of action. The allegations of negligence in the two counts are substantially the same, and they aver that at the time of the injury the appellee was at work for the appellant, in conjunction with other employees, in unloading from a certain freight car of the appellant, certain bales of cotton then being transported by the appellant in interstate commerce; and that while so at work with the other employees, and while the appellee was in the exercise of due care for his own safety, one of the other employees or servants of the appellant carelessly, negligently and wrongfully caused or permitted one of these bales of cotton to strike or fall upon and against the appellee with great force and violence, which caused his injury. It is trae that the particular fact and circumstance under which the employee caused or permitted the bale of cotton to fall and strike the appellee is not stated, but any defect or omission in the count in that regard is cured by the verdict. The general rale is, that where there is a defect or imperfection in a pleading, whether of form or substance, which would have been a fatal objection upon demurrer, yet of such a character that if issue be joined thereon, it would necessarily require, on the trial, proof of the facts defectively or imperfectly stated or omitted, and without which proof it is not to be presumed that the trial judge would direct the jury to give, or the jury would have given the verdict, then such defect, imperfection or omission is cured by the verdict. Hinchliff v. Rudnik, 212 Ill. 569; 1 Chitty’s Pleading 673; Keegan v. Kinnare, 123 Ill. 280; Western Stone Co. v. Whalen, 151 Ill. 472; City of East Dubuque v. Burhyte, 74 Ill. App. 99, and 173 Ill. 553; N. K. Fairbank Co. v. Bahre, 213 Ill. 636; O’Rourke v. Sproul, 241 Ill. 576; Mueller v. Phelps, 252 Ill. 630. And this court so held in Jacobson v. Ramey, 200 Ill. App. 96; Paden v. Chicago, R. I. & P. Ry. Co., 200 Ill. App. 100.

It is also contended by the appellant that the proof is insufficient to show negligence as charged. We are of opinion, however, that from the evidence the jury were warranted in finding that Lawrence Von Eseh, who was a fellow-servant and working in conjunction with the appellee at the time of the injury, was charged by the foreman with the duty of watching the bale of cotton which fell on appellee, and to keep it from falling, and that he was neglecting his duty in that regard at the time the appellee was injured. It was the province of the jury to pass upon this question of fact, and under the circumstances here presented, this court would not be justified in disturbing the finding of the jury, on that question.

It is insisted by the appellant that the negligence of a fellow-servant is one of the risks which the appellee assumed by his employment, and that therefore the appellant is not liable. While, under the Federal Employers’ Liability Act, the servant assumes all the ordinary and usual risks incident to the employment' in which he is engaged, the master is made liable not only for his own negligence but also for the negligence of a fellow-servant, which may result in injury to his employee or servants. Kusturin v. Chicago & A. R. Co., 209 Ill. App. 55, and 287 Ill. 306; Boldt v. Pennsylvania R. Co., 245 U. S. 441. But the neglect of a duty with which a fellow-servant is charged by the master, to assure the safety of coemployees, must be regarded as the negligence of the master. Chicago & A. R. Co. v. Maroney, 170 Ill. 525.

It is also contended by the appellant that the verdict is excessive. If the testimony of Dr. Krohn were the only medical testimony in the case concerning the nature, extent and character of the appellee’s injury, this point might be regarded as well taken; but there is other evidence in the case which the jury undoubtedly considered in connection with Dr. Krohn’s testimony. We are of opinion that the jury were warranted, from all the testimony on this subject, in concluding that appellee’s foot was permanently injured, and has become atrophied, deformed and practically useless for the rest of his life as the result of the injury he received; and that the appellee also suffered intense pain for a long period of time, and from which he may never be entirely free. Under these circumstances the amount of damages fixed, while large, cannot be justly regarded as excessive.

Complaint is made of certain remarks of appellee’s counsel in his closing argument concerning the amount of money paid • by appellant to procure the services of the witness Dr. Krohn. as an expert. There is no evidence to show that appellant paid anything, and these remarks were therefore improper; but an objection was sustained to them by the court, and the counsel withdrew his remarks, and in the presence of the jury admitted that he was in the wrong, in referring to a matter about which there was no proof. Under these circumstances, whatever prejudicial effect the error might have had was practically eliminated, and the point made is not now of sufficient gravity to justify a’ reversal of the judgment. Chicago & J. Elec. Ry. Co. v. Herbert, 115 Ill. App. 248.

Complaint is also made concerning the instructions given and refused. Appellant contends, that the sixth instruction given for the appellee does not correctly define the liability of a carrier for injuries suffered by a person employed in interstate commerce; that it contains an abstract proposition of law, and does not limit the negligence for which a recovery can be had to that charged in the declaration; and was in that respect misleading. We are of opinion that the instruction is a substantially correct statement of the law; and while it is true that the negligence for, .which it states a recovery may be had was not limited to the declaration, the instruction must be considered in connection with instructions Nos.' 17 and 25 given for the appellant, in which the jury are expressly told, that they have no right to find "a verdict against the appellant on any ground of negligence other than that stated in the declaration. The seventh instruction for the appellee, which is complained of, is an instruction concerning measure of damages. The objection urged is, that it contains after the definition of the measure of damages the following sentence, “and if you believe from the evidence that the plaintiff was not guilty of any negligence which contributed to bring about his injury.” It is insisted by the appellant that in this instruction, to make it a complete statement of the law, the court should have told the jury that they must also find from the evidence that the appellant was guilty of the negligence as charged. This instruction, however, related merely to the question of damages; and under the Federal Employers’ Liability Act, the matter of contributory negligence, while not a defense, is a proper element to be considered by the jury in the reduction of the amount of damages,. and it was therefore proper to call attention to this feature in the instructions concerning the measure of damages.

The appellant also complains, on account of refusal of instructions “A” and “B” concerning the questions of assumed risk. But it is apparent that the matter of assumed risk, and the question relating thereto, were sufficiently and correctly covered by other instructions; and there was no error therefore in the refusal of these instructions.

The record does not disclose any error in the rulings of the court on the admission or rejection of evidence. For the reasons stated, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Niehaus

license: Public Domain

text:
    Alfred P. Veroni, Appellee, v. Jesse E. Smith, Appellant. Citizens’ State Bank of Watseka, Appellee.
    Gen. No. 6,744.
    1. Venue, § 2

      —what is proper venue of action for accounting. Un a bill in equity for an accounting against one who is a resident of another county and a bank which is a resident of the county where the suit is brought, where, though the main object of the suit is to compel such nonresident defendant to make payments to defendant bank, it also appears that complainant has a vital interest in the accounting, as payments which may be made to the bank under a decree therein will reduce or even discharge his indebtedness to the bank, the suit is properly brought in such county instead of in the county where such nonresident defendant resides, notwithstanding the bill prays no decree against the defendant bank.
    2. Account, § 19*—when - equity has jurisdiction. On a bill in equity for an accounting against an individual and a bank as defendants which seeks to compel the individual defendant to make certain payments to the bank whereby complainant’s indebtedness to the bank will be extinguished or reduced, held that complainant could not have a complete and adequate remedy in any suit at law in the enforcement of his right to an' accounting.
    3. Account, § 24*—who are necessary parties to suit in equity. Where the agreement which is the basis of the accounting is tripartite in character, the three parties thereto are necessary parties to a bill in equity for an accounting.
    4. Venue, § 2*—what is effect of residence of defendant in suit for an accounting. A bill in equity for an accounting is properly brought in any county where one of the defendants, parties to the tripartite agreement whereon such accounting is based, resides.
    5. Insurance, § 64*—lohen officer of insurance company waives priority rights to agent’s commissions by assignment. An agreement was entered into by the manager of an insurance company, an agent of such company and a bank—to which such agent was indebted, whereby such agent authorized the manager, and the manager agreed, to pay over to the bank renewal commissions becoming due the agent under his contract, the bank paying to. the manager an indebtedness due him from the agent. It was held that under the principles of equitable estoppel, the manager, by the execution of the assignment agreement, waived any right of priority to the agent’s commissions which he may have had under the agent’s contract of employment, and also waived his right to forfeit these commissions under the contract.
    Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 21, 1920.
    Pallissard & Benjamin and Hoyne, O’Connor & Irwin, for appellant.
    J. W. Kern and C. G. Hirschi, for appellees.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case a bill in equity for an accounting was filed, in the circuit court of Iroquois county, by the appellee, Alfred P. Yeroni, as complainant, against the appellant, Jesse E. Smith, manager of the Prudential Insurance Company, a resident of Cook county, and'the Citizens State Bank of Watseka, Iroquois county, as defendants. The appellant Smith was served with summons and thereupon filed a special appearance in the case, and made a motion to dismiss the bill for want of jurisdiction, on the ground that he is a residentxof Cook county and could not properly be sued in Iroquois county concerning the matters set up in the bill; that it appeared from the averments in the bill that the suit was brought to recover money from appellant under an alleged contract; that no judgment or decree was prayed against the other defendant who resided in Iroquois county; that there was no joint liability or several liability of the defendants apparent on the face of the bill; and that it was evident from the allegations in the bill, taken as true, that the complainant had an adequate remedy at law, and that the purpose of joining appellant with the other defendant, the Citizens State Bank of Watseka, was to compel the appellant to litigate the matters in controversy in Iroquois county instead of Cook county. The court denied the motion, and this ruling is assigned as error. Taking the averments of the bill as true, the suit was properly commenced in Iroquois county. While it is apparent that the main object of the suit ip to compel the appellant to malee payments to the Watseka bank, yet it also appears that in the accounting to be had the complainant in the bill had a vital interest, inasmuch as the payments of the money which the bill seeks to compel to the Watseka bank would, to the extent thereof when made, reduce the complainant’s indebtedness to the bank; and if the amounts were sufficient to pay all of the indebtedness, he would thereupon be relieved entirely from any further obligation to the bank. It is equally clear that he could not have a complete and adequate remedy in any suit at law in the enforcement of his right to an accounting. The agreement which is the basis of the accounting is tripartite in character, and the three parties thereto were therefore all necessary parties in the suit. It is proper to commence á suit in equity of this kind in any county where one of the defendants resides. Section 3, ch. 22, Hurd’s Rev. St. (J. & A. ¶ 883).

After the issues had been made up, there was a hearing before the court concerning the matters averred in the bill, to determine the question of the appellee’s right to enforce an accounting'; and the court found from the evidence heard that the appellee was entitled thereto, and in accordance with such finding entered a decree to refer the cause to a special master for that purpose. Appellant prosecutes this appeal from the decree.

. The evidence clearly tends to establish the following facts: That on the 6th day of February, 1909, the appellant, as manager of the insurance company mentioned, made a contract with the appellee under which he was appointed as an agent to procure insurance policies for the company, and by the terms of the contract he was to receive as. compensation certain commissions on policies procured by him, and certain other commissions on renewal premiums paid for the same policies. The clause for this additional compensation is section 17 of the contract, and follows: “The manager agrees to pay the Agent a commission of five per cent on renewal -premiums collected by the Agent in the second to the tenth year of insurance, inclusive, on Non-Participating policies, except Endowment policies requiring less than twenty annual premiums and Guaranteed- Five per cent. Twenty-Year Endowment policies and Five-Year Term policies, on which a commission of three per cent on renewal premiums collected by the Agent in the second to the tenth year of insurance, inclusive, shall be paid; provided that such policies shall have been secured by or through the Agent under this contract. ’ ’

The contract also contains the following provisions which have a bearing on the matters in controversy, namely: Section 13. “That if this contract be terminated, the compensation paid to the Agent, with the amount then due under this contract, shall be in full settlement of all claims and demands in favor of the Agent under this contract, and that all compensation which a continuance of this contract might have secured to him shall be forfeited, except as herein provided.” And section 16, which is as follows: “That if this contract shall be terminated, any indebtedness due the Manager from the Agent, under this or any previous contract, shall be a first lien upon the amounts due or to become due to the Agent, his executors, administrators or assigns by the terms of this contract, until the amount of such indebtedness with interest at the rate of five per cent per annum is fully paid.”

The appellee i worked for the appellant as agent under his contract for a period of' over 8 years preceding May 29, 1912, and had procured for the appellant a large number of insurance policies, under which he was entitled to receive commissions on the premiums paid for renewals from the second to the tenth year of their issuance in accordance with section 17 of his contract. In the meantime, the appellee had become indebted to the Watseka bank in the sum of $3,387.22; and the bank was insisting on a payment of the indebtedness, or that security be given for such payment. The appellee thereupon offered to assign to the bank his interest in the commissions which would become payable to him on the renewal premiums mentioned. The bank was willing to accept this security, and George E. Lee, the cashier of the bank and as a representative of the bank, with the appellee, called upon the appellant at Chicago to see if a satisfactory arrangement could be made with him concerning the matter of the assignment of the renewal commissions to the bank; and Lee testified that in the conversation which they had with the appellant at that time, the appellant stated that these renewal commissions would amount to something less than $9,000. The appellant at first refused to sanction the assignment, but finally agreed to it on the condition that the amount of the indebtedness which the appellee owed him, which he claimed was $1,477.78, was paid to him; the bank acceded to this, and the $1,477.78 was paid to the appellant in two checks which were drawn upon the bank. In consideration of this payment, the following assignment agreement was made between the parties:

“Chicago, Ill., May 29, 1912.

Mr. J. E. Smith, Manager,

The Prudential Insurance Company,

Chicago, Ill.

Mv Dear Sir:

You are hereby authorized and instructed to pay to the Citizens State Bank of Watseka, Ill., any and all renewal commissions which may become dne and payable under my contract with you, dated February 6, 1909. This order to remain in full force and effect until such time as it shall be released by the Citizens State Bank.

Tours very truly,

Ahfred P. Veroni,

District Manager.

“The above order is hereby made a matter of record and all renewal commissions due Mr. A. P. Veroni, District Manager, under his contract dated February 6, 1909, as they may become due and payable, will be turned over to the Citizens State Bank of Watseka, and their receipts for such commissions shall be binding upon said A. P. Veroni,. District Manager.

J. EL Smith,

Manager. ’ ’

Under this assignment agreement the appellant made two payments of the commissions thereby assigned to the bank: $25 on July 15, 1912, for renewal premiums collected in June, 1912; and $67.22 on August 15, 1912, for renewal premiums collected in July, 1912. On September 9, 1912, the appellee resigned his position as agent, to take effect September 16, 1912. After the resignation of the appellee, the appellant refused to make any further payments. Appellant claims that a few days before he received a notice of appellee’s resignation he had discovered that the appellee for some time before that had been collecting insurance premiums and appropriating them to his own use; and the evidence shows that an indictment was found against the appellee on that account for embezzlement; and that he pleaded guilty to the indictment and was sent to the penitentiary. It is appellant’s contention that under section 16 of appellee’s contract with him he has a prior right to the commissions embraced in the assignment agreement for the indebtedness of the appellee to him arising from the embezzlement; also that under, section 13 these commissions were forfeited by the appellee, and that hence he is no longer legally obligated to pay them to the bank, because under the assignment agreement he obligated himself to pay to the bank only such commissions as would become due and payable to the appellee under the terms of the contract. We are unable to take this view of the legal obligation which the appellant incurred by the assignment agreement under the circumstances under which it was made. It is obvious that the purpose and object of the assignment agreement was to give the bank security for the payment of appellee’s indebtedness to the bank, and it appeared from appellant’s own statement at that time that the amount of the commissions- which would thereafter become due and pay-ale would be ample for that purpose; all the parties understood this. It would be unreasonable to assume that the bank would have paid $1,477.78 to the appellant unless it had this understanding of the matter, and it would be unreasonable, to assume that the appellant would have exacted payment of that amount unless he had the same understanding; and the inference from the evidence is practically conclusive that the bank-paid the money to the appellant which forms the consideration for the assignment agreement, and that the appellant received it with the understanding that the renewal commissions were pledged by the agreement to be paid to the bank when collected, to the extent of the bank’s indebtedness, and that the appellant exacted the consideration and received the same with that end in view. Under the well-recognized principles of equitable estoppel, the appellant by executing the assignment agreement waived the right of priority to the commissions in question which he may have had under the contract with appellee; and also waived his right to forfeit these commissions under the contract, because the exercise of such rights would be inconsistent with carrying into effect the assignment agreement and its purposes in good faith, and would work an injury to the bank in the rights which they acquired thereunder. It was said in Smith v. Newton, 38 Ill. 230, that “a much broader scope has been given to the doctrine of estoppel in pais, both in this country and in England, than formerly obtained, and have established that whenever an act is done, or a statement made by a party, which cannot be contradicted or contravened without fraud on his part and injury to others whose conduct has been influenced by the act or admission, the character of an estoppel will attach to what would otherwise be a mere matter of evidence.” And in Commercial Ins. Co. v. Ives, 56 Ill. 402, it is held that an estoppel in pais arises, “when a party, either by his declaration or conduct, has induced a third person to act in a particular manner, he will not after-wards be permitted to deny the truth of the admission, if the consequence would be to work an injury to such third person.” The principle underlying the doctrine of estoppel is also stated in Noble v. Christian, 88 Ill. 186, as follows: “Estoppel rests, in all cases, upon the-position that, under the circumstances, the party to be estopped ought to have acted differently, if he did not intend to waive his right. The circumstances must be such that good faith required him to do otheiwise, if he was not willing that the other party should act upon the faith of the supposed waiver of his right.”

Applying the principles announced in the foregoing decisions to the present case, it is apparent that the appellant is estopped to do any act or exercise any right which would be inconsistent with the position taken by him, at the time the assignment agreement was executed with reference to its value, or which would injuriously affect the benefit the bank acquired thereby as a security for the payment of appellee’s debt. The decree is affirmed.

Affirmed.


text:
    Henry Eberhart, Trustee, Appellee, v. Aetna Insurance Company, Appellant.
    Gen. No. 6,757.
    1. Appeal and ebbob, § 1702

      —when objection to finding is waived. Where, ih an action to recover on a fire insurance policy, at defendant’s request the court submits to the jury a special interrogatory as to what amount of damage Was caused to the insured property and the jury makes a special finding which defendant does not move to set aside, and to which he does not refer as a ground for new trial, the objection that the damages are excessive cannot be urged on appeal, notwithstanding an objection below that the verdict was excessive, such objection going to the general verdict and not to the special finding.
    2. Insueance, § 71*—what is sole ownership of property. ■ Unconditional and sole ownership is such ownership as would carry the loss of the property insured if destroyed.
    3. Insueance, § 71*—when solé ownership of property is not affected by agreement as to sales. Unconditional and sole ownership of property, within the meaning of a fire insurance policy, is not lost by an agreement of the owner whereby a third person is given control of the proceeds of sales of such property.
    4. Insueance, § 120*—when rule against forfeitures is applied. The rule that the law does' not favor forfeitures applies to the construction of an insurance policy.
    5. Insueance, § 120*-—how policies are construed. A contract of fire insurance must be most strongly construed against the insurer.
    6. Insurance, § 455*—when statements of agent operate as waiver of proof of loss. Statements of an insurance company’s representatives to the owner of the insured property to one assisting the insured in selling the insured property and to an attorney representing the creditors of the insured, made within 60 days after the fire, that the matter of the fire was in the hands of the State Fire Marshal for investigation, afford sufficient evidentiary. basis for an instruction as to the waiver by defendant of the provision of the policy requiring proof -of loss in 60 days, and stating that if before the expiration of 60 days after the fire, defendant’s adjuster informed insured that the fire was being investigated by the State Fire Marshal and if insured was thereby led to believe that proofs of loss would not be required by defendant, defendant waived such proofs and cannot avoid liability on the ground that they were not furnished.
    7. Insurance, § 693

      —when instruction as to waiver of proofs of loss is erroneous. In an action to recover on a policy of fire insurance in which plaintiff alleges a waiver by defendant of proofs of loss, defendant’s requested instruction that, as a matter of law, waiver is an intentional relinquishment of a known right, and that unless the jury find from all the evidence that defendant intended to excuse insured from giving proofs of loss and by the conduct of its agents made such intention known to insured, it cannot be held that proofs were waived, is properly refused since waiver of such proofs might not only be express, but could also be inferred from such conduct on the part of defendant as would justify the belief that such proofs would not be required.
    8. Instructions, § 138*—when instruction■ is properly refused as unnecessary. It is not error to refuse an instruction which is merely an abstract proposition of law and as to which there is no evidence in the case applicable.
    Appeal from the Circuit Court of Will county; the Hon. Arthur W. De Selm, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 21, 1920.
    Charles B. Obermeyer and Murphy & Anderson, for appellant.
    John W. Downey and John H. Savage, for appellee.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court;

This is an action in assumpsit brought in the cir-' cuit court of Will county by Henry Bberhart, trustee in bankruptcy of the estate of August F. Salow, against the Aetna Insurance Company, to recover on an insurance policy for $3,000 issued by the Aetna Company to August F. Salow.

In the year 1916, Salow was engaged in the retail hardware and'farm implement business in Manhattan, Illinois. Henry Eberhart, who is a resident of Manhattan, was agent for the Aetna Company, and wrote the policy in question for said company on December 14, 1916. Two days later, on December 16, 1916, a fire took place, completely destroying the property insured. The evidence shows that during the fall of 1916, Salow’s creditors placed their demands in the hands of Fred W. Walter, an attorney of Joliet; and shortly before November 26, 1916, several of the creditors, either in person or by attorney, met in the offices of Fred W. Walter, with Salow, and plans were there discussed as to the best way for Salow to provide for payment of his indebtedness; and it was finally decided that it would be best to have some reliable person go out and assist Salow in the store, and," as the stock was sold out, to take charge of the proceeds of such sales and conserve them for the creditors; and Eberhart was empowered to carry out this arrangement, and went to work in the store about November 26, 1916. He and Salow each had a key to the store, and to the cash drawer, and they worked together. Salow was especially energetic. He was the first one there in the morning and the last one to leave at night, and he directed the sales and the purchases-, and when Eberhart was in doubt as to the price at which any article was to be sold, he always conferred with Salow, and upon some occasions was directed by Salow not to sell. At night, after the close of business, they would count up the money, and Eberhart would then take it and place it in the bank in his name as trustee.

The policy insurance sued on is a New York Standard form of fire insurance, and contains, among other provisions, the one that the policy shall be void if the interest of the insured be other than unconditional and sole ownership; and it also provides that the insured shall file proofs of loss within 60 days after a fire, unless the time is extended in writing. The fire referred to occurred in the early morning of December 16, 1916, and that same morning Eberhart notified the insurance company by telephone of the loss. Two or three days later, a representative of the company went to Manhattan and investigated the loss. He talked with Eberhart and Salow, and told Eberhart that he would let them know what they would do about it. On January 17, 1917, a represenlative of the company wrote Walter stating that the matter was in the hands of the State Fire Marshal for investigation and report. No report in fact was ever made to Walter or any one for Salow. Some months after the fire, however, a representative of the company also told Eberhart that the matter was in the hands of the State Fire Marshal for investigation.

On the trial of the case and at the conclusion of all of the evidence offered on behalf of the plaintiff, the defendant moved the court to instruct the jury to find the issues for the defendant, and thereupon the plaintiff asked for and was granted leave to amend the declaration, by striking out the allegations and averments that Salow had furnished proofs of loss, as required by terms of the policy, and to insert in lieu of such allegations and averments other allegations to the effect that the defendant had waived the furnishing of said proofs of loss, and refused to pay such loss on the ground that the fire was being investigated by the State Fire Marshal. The defendant objected to the court granting leave to file said amendment to the declaration, and moved for a continuance on the ground of surprise, but the court allowed the amendment to be made and refused to grant a continuance. The trial by jury resulted in a verdict in favor of the appellee for $3,025, upon which judgment was rendered. And this' appeal is prosecuted from the judgment.

It is urged by appellant that the damages are excessive. With reference to this contention it must be pointed out, however, that at the' request of the appellant the court submitted to the jury a special interrogatory, as to what amount of damage was caused to the property covered by the policy of insurance. The jury in the special finding fixed the amount of the damage at $7,000. No motion was made by the defendant in the court below to set aside this special finding, and this question is therefore not properly before us for consideration. The objection that the amount of the verdict is excessive applies only to the general verdict, and not to the finding on the special interrogatory; the special finding is not referred to as a ground for a new trial, and cannot be urged as error on appeal. This court discussed and upheld the rule referred to in Kristel v. Michigan Cent. Ry. Co., 213 Ill. App. 518, and the cases sustaining it are there cited. It was also sustained in Todd v. Louisville & N. Ry. Co., decided by the count in 197 Ill. App. 141, and reversed in 274 Ill. 201.

It is also urged by appellant that the evidence shows that the interest of the insured in the property destroyed was not unconditional, and sole ownership, by reason of the arrangement with Eberhart. We are of opinion that the evidence shows no change in Salow’s ownership of the property by the arrangement with Eberhart. Unconditional and sole ownership is such ownership as would carry the loss of the property insured if destroyed. National Fire Ins. Co. v. Three States Lumber Co., 217 Ill. 115; Lycoming Fire Ins. Co. v. Jackson, 83 Ill. 303; Phenix Ins. Co. v. Caldwell, 187 Ill. 73. It is not disputed that Salow was such an owner prior to the meeting of the creditors; and the change made at that time, was not of ownership but had reference only to a control of the proceeds of the sales, and the loss occurring by the destruction of the property necessarily fell on Salow.

Appellant assigns as error, also, the giving of the second instruction for appellee and insists that there was no evidence on which to base it. The substance of this instruction is, that the provision relating to the furnishing of proof of loss is inserted for the benefit of the insurance company, and that the company can waive it if it sees fit; and that if the jury believe from the evidence that, before the expiration of 60 days from the date of the fire, an adjuster for the company informed the insured that the fire was being investigated by the State Fire Marshal, and that the insured was thereby led to believe that proofs of loss would not be required by the defendant, then that the defendant waived the necessity of such proofs of loss, and cannot avoid liability on that ground. The law does not favor forfeitures, and the contract issued and prepared by the insurance company was made for its own protection, and must be construed most strongly against it. National Fire Ins. Co. v. Three States Lumber Co., 217 Ill. 127, and cases cited. And under the holding in O’Connor v. Maryland Motor Car Ins. Co., 287 Ill. 210; Kimmel v. Pinckneyville Couny Mut. Fire Ins. Co., 161 Ill. 43; Aetna Ins. Co. v. Jacobson, 105 Ill. App. 283; Insurcunce Co. of North America v. McDowell, 50 Ill. 130, we think the statements by appellant’s representatives to Eberhart, Salow and Walter, are a sufficient evidentiary basis for the giving of this instruction.

Error is also assigned by appellant for the refusal of the court to give the first and third refused instructions. The first refused instruction is to the effect that, as a matter of law, waiver is an intentional relinquishment of a known right; and that unless the jury find from all the evidence that the appellant intended to excuse the insured from furnishing* proofs of loss, and by the conduct of its agents or officers made known its intention to the insured,, it cannot be held or found that such conditions were waived. We are of opinion that this instruction was properly refused. A waiver may be an express waiver of proofs of loss, but could also be inferred from such conduct on the part of the company as would justify the belief that proofs of loss would not be required. Gray v. Merchants Ins. Co., 113 Ill. App. 546. There was no error in the refusal of the third refused instruction because it is merely an abstract proposition, and there is no evidence in the case to which it could properly be applied. The record does not disclose any reversible error. The 'judgment is affirmed.

Judgment affirmed.


text:
    Emma L. Johnson et al., Appellees, v. Carl Lind, Appellant.
    Gen. No. 6,761.
    1. 'Rtt.t.s and notes, § 62

      -—when note is executed under duress and is without consideration. On a bill in equity to enjoin defendant from, assigning, transferring or pledging a certain note and mortgage executed by complainant and her deceased husband and to have the same canceled and annulled, evidence held to reasonably warrant the inference that the instruments were executed by complainant’s husband by reason of fear of an impending prosecution for the larceny of money which defendant charged him with having stolen, and that such note and mortgage were without consideration.

      2. Bills and notes, § 62

      —what is sufficient to establish duress. Sufficient duress to avoid a note is shown by proof that it was executed under the fear of a criminal prosecution and in order to avoid such prosecution.
    3. Cancellation of instruments, § 12*—when equity has jurisdiction because of lack of consideration and duress. Where a note is involved which is negotiable and not due, and there is good reason to believe that it may be transferred or negotiated before maturity and thereby come into the hands of an innocent purchaser, equity on this ground alone will take jurisdiction to prevent such negotiation and transfer, if the note should be canceled and annulled for lack of consideration, or on account of duress.
    Appeal from the Circuit Court of Winnebago county; the Hon. Rohhrt K. Welsh, Judge, presiding. Heard in this court at, the October term, 1919.
    Affirmed.
    Opinion filed April 21, 1920.
    Knight & Mohr, for appellant.
    Reynolds & Reckhow, for appellees.

      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. Presiding Justice Niehaus

delivered the opinion of the court.

The appellee, Emma L. Johnson," in her own right and as next friend of Le Roy Johnson and Carl S. Johnson, legal heirs of G-ustav D. Johnson, deceased, filed a bill in equity to enjoin the appellant, Carl Lind, from assigning or transferring or pledging a certain note and mortgage for the sum of $2,000, executed by herself and her deceased husband, G-ustav D. Johnson, and praying to have said note and mortgage canceled and annulled. A temporary injunction was issued pursuant to the prayer of the bill, and this was made perpetual upon the final hearing. The court also decreed that the note and mortgage in question be canceled and annulled in aceordancé with the prayer of the bill, and, appellant’s appeal is prosecuted from this decree.

There appears to be very little controversy about the facts in the case, and practically no dispute about the evidence bearing upon the execution of the note and mortgage in question, and the circumstances under which it was executed and delivered to the appellant.

The appellee and her husband, Gustav D. Johnson, at the time the note and mortgage were made, had been conducting a large rooming house in the City of Rockford, where fifteen or sixteen people were continuously housed, some for short periods of time, and some longer. The appellant roomed there and was a brother of the appellee. His room was on the top floor, or attic, and occupied by him alone. On the 8th day of July, .1918, according to the testimony of the appellee, the appellant came down stairs and said he had lost some money, and then went out doors and later came back with appellee’s husband, and took him upstairs. Appellee went up later, and found them upstairs in appellant’s room, with appellant’s trunk open, and all of appellant’s things on the bed. Appellant said he lost $4,000 in money. Appellee testified that this was the first knowledge she had that appellant had money about the house. Afterwards the appellant accused appellee’s husband of taking the money and later on insisted that he should give a mortgage for half of the amount, which he claimed he lost, namely for $2,000. The day afitér appellant made his claim for the loss of money, he had officers come to the house, and, after that, to examine the appellee and the premises, and also appellee’s husband, concerning the money which he claimed was taken from his trunk. And appellant was persistent in his demand on appellee’s husband to make good his loss, or at least a part of the same, and especially on the day before the mortgage was executed, which was about the 11th day of July, 1918, when the appellant appeared to be very much excited, and insisted that be must have a mortgage, and that appellee’s husband was responsible for the house anyway. After a discussion about the matter, appellee’s husband agreed to give the note and mortgage in question, and said to the appellant: “I will have a note drawn, and you go to the telephone and ask the police department not to come here any more”; and thereupon the appellant rang up the department, and told them his brother-in-law and he had settled. The next day the note and mortgage were drawn up by a notary public, and first signed and executed by her husband, and appellee testified that he thereupon compelled her to sign the same, contrary to her wishes. The giving of the note and mortgage, however, did not end the prosecution of the case. The State’s Attorney sent for appellee’s husband, and two police officers accompanied him to the office of the State’s Attorney, and were in waiting at the door while he was being examined about the matter, and at the close of the examination by the State’s Attorney that day, he was told that he must again appear for further examination the next evening at 7:30. This he avoided by committing suicide, which ended the matter. The appellee contends that the note and mortgage are void, because they are without consideration, also that they were executed under duress. There is no evidence from which a reasonable inference can be drawn that Johnson took any money from appellant’s trunk, and there is no evidence that there was $4,000 in money in appellant’s trunk outside of appellant’s own assertion that he had it there, which was made at the time he claimed it was stolen. Appellant also claimed at that time that he had withdrawn this money from the bank, at the suggestion of appellee’s husband, and placed, it in his trunk, but no witness was called to show that.appellant had such an amount on deposit, or had drawn out of any bank at any time, and no witness testified that he had any knowledge that the appellant ever had that amount of money. In this state of the record, we are of opinion that the court was fully warranted in finding that the note and mortgage were without consideration. The evidence also tends to show that they were executed under duress. The reasonable inference from the evidence is that Johnson was impelled to execute the note and mortgage because he was in fear of an impending prosecution for the larceny of the money, which appellant claimed he had stolen. The disgrace and probably imprisonment likely to follow such a prosecution must have borne heavily on his mind, and that it did cause a tremendous distress and excitement in Johnson’s mind is sufficiently evidenced by the fact that he finally committed suicide. If these notes were executed under the fear of a criminal prosecution, and in order to avoid such prosecution, this is a sufficient showing of duress to avoid them. Joyce on Defenses to Commercial Paper, sec. 112; Bane v. Detrick, 52 Ill. 19; Henderson v. Palmer, 71 Ill. 579. The appellant insists, however, that the defenses set up by the appellee against the note and mortgage could be made at law, and that therefore a court of equity should not take jurisdiction of the matter. Where a note is involved which is negotiable, and not due, and there is good reason to believe that it may be transferred or negotiated before maturity, and get into the hands of an innocent purchaser for value, a court of equity on this ground alone will take jurisdiction to prevent such transfer and negotiation, if the note ought to be canceled and annulled for lack of consideration, or on account of duress. Pomeroy’s Equity Jurisprudence, see. 685; Joyce on Defenses to Commercial Paper, sec. 106; Kingsley v. Kingsley, 130 Ill. App. 53.

For the reasons stated, we are of opinion that the decree canceling the note and mortgage in question was proper, and it is therefore affirmed.

Decree affirmed.


author: Mr. Justice Dibell

text:
    Mary E. Stauber, Appellee, v. Leo Stauber et al., Appellants.
    Gen. No. 6,647.
    1. Appeal and ebrob, § 1845

      —when rehearing will he granted after amendment of hill of exceptions. Where the absence from the bill of exceptions of a plea which had been stricken from the files below was not raised by the appellee when amendment could have been made before the cause was submitted and the appellant procures an amendment of the bill of exceptions in the lower court so as to include the plea in the bill of exceptions, the Appellate Court will grant a petition for a rehearing so that the lower court’s ruling may be reviewed.
    2. ' Pleading, § 148*—when affidavit of claim is sufficient. Where the nature of the cause of action is fully disclosed by the affidavit of claim when considered in connection with the declaration and copy of a bond thereto attached, the refusal to strike the affidavit from the record is proper.
    3. Pleading, § 153*—iohen affidavit of merits is insufficient. Since the enactment of section 55 of the Practice Act of 1907 (J. & A. 1f 8592), affidavits of merits filed with a plea of non est factum which merely state that the plea is true are properly stricken from the files.
    4. Pleading, § 153*—when affidavit of merits does not show meritorious defense. In an action of debt upon a bond given for the payment of instalments of alimony, defendant’s affidavit of merits examined and held, when taken in connection with the record and with the matters to which it omits reference, not to establish a meritorious defense and to have been properly stricken from the files.
    5. Appeal and erbob, § 968*—when hand will not he considered on review, record being incomplete. In an action of debt on a bond given by plaintiff’s former husband for the payment of the instalments of alimony provided for in the divorce decree, it is not ground for reversing a judgment for plaintiff that the bond embodies a condition not required by the decree, where the order requiring the bond is not embodied in the record and it is not sought, in the action, to enforce the supposedly superfluous condition.
    6. Pleading, § 362*—lohat is effect of order to strike affidavit of merits. The fact that the court orders “the affidavit of merits” stricken from the files, whereas there were three affidavits of merits on file does not prevent the cause from proceeding to judgment.
    7. Pleading, § 362

      —when affidavit of merits should he stricken from files. Under section 55 of the Practice Act (J. & A. If 8592) it is not required that an insufficient affidavit of merits be stricken from the' files before judgment can be ^rendered for plaintiff. '
    8. Pleading, § 153*—what is effect of affidavit to portion of plaintiff’s claim. Section 55 of the Practice Act (J. & A. j[ 8592) authorizes a judgment for plaintiff if defendant’s affidavit set out a defense to only a part of plaintiff’s claim.
    9. Pleading, § 362*—when affidavit of merits cannot he stricken. Where defendant’s affidavit of merits sets out a defense to a part of plaintiff’s claim, it cannot be stricken.
    10. Pleading, § 362*—when striking of plea operates as default. Where, in an action of debt on a bond, defendant’s plea of non est factum is stricken from the files, a default will follow, even though his affidavit of merits is not stricken.
    11. Depositions, § 34*—when motion to strike deposition is properly denied. A motion to suppress and strike from the files the deposition of the plaintiff in an action of debt on a bond who had moved out of the state, held properly denied.
    12. Judgment, § 108*—what is effect of striking plea as to default. In an action of debt on a bond, after defendant’s' plea of non est factum has been stricken, it is not necessary for plaintiff to offer any proof on the hearing on the default, except on the matter of computation.
    13. Appeal and ebbob, § 1703*—when error as to amount of judgment is waived. Where defendant did not move for a new trial, but moved to set aside the assessment of damages, assigning several special grounds therefor, and after judgment moved to set aside the judgment “upon the grounds hereintofore stated,” and none of said grounds, all of which are preserved in the bill of exceptions, refer to the fact that the assessment of damages and the judgment exceeded the ad damnum in the declaration, such objection is waived and cannot be raised on appeal.
    14. Appeal and ebbob, § 1703*—when judgment will not he reversed because in excess of amount claimed. A judgment should not be reversed because the ad damnum is exceeded by interest accruing during a long delay where a written motion for a new trial specifies the grounds relied on and such excess is not therein alluded to and the point is not raised in the court below.
    Appeal from the Circuit Court of La Salle county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 21, 1920.
    Browne & Wiley and Butters & Clark, for appellants.
    Boys, Osborn & Griggs, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

This was an action of debt by Mary E. Stauber upon a bond given by her former husband, Leo Stauber, for the payment .of instalments of alimony provided for in a decree of divorce which Mrs. Stauber obtained against her husband in the circuit court of La Salle county. The sureties on the bond were the father, two brothers and a sister of Leo Stauber. The sister was not served with' summons and an entry of her appearance by attorneys was found to have been by mistake and was withdrawn by permission of the court and she was not included in the further proceedings. There was an affidavit .of claim with the declaration. Defendants filed a plea of non est factum, and notice of special matter and certain affidavits of merits, which were stricken from the files, and there was a default and proofs and judgment against the defendants, from which they prosecute this appeal. Upon examining the record, we found that the plea which had been stricken from the files was not preserved in the bill of exceptions, and we held that in that condition of the record the plea was not before us and therefore the action of the court in striking the affidavits from the files could not be reviewed. Our opinion then filed (by Carnes, J., now deceased) was based upon Barger v. Hobbs, 67 Ill. 592; Blair v. Ray, 103 Ill. 615; Harmon v. Callahan, 286 Ill. 59; and Witteman Co. v. Goeke, 200 Ill. App. 108. We decided the other questions agáinst appellants and affirmed the judgment. Defendants procured an amendment of the hill of exceptions in the court below so as to include the plea in the bill of exceptions, and asked leave to file an additional record containing that amendment to the bill of exceptions. As the absence of the plea from the original bill of exceptions had not been raised by attorneys for appellees when the amendment could have been made before the cause was submitted, we concluded tli at the ends of justice required us to permit the amended record to be filed, and, this being done, we granted a petition by appellants for a rehearing, so that the ruling of the court below on those affidavits might be reviewed.

Defendants moved to strike the affidavit of claim from the files. That motion was denied, and it is argued here that that ruling was erroneous. Appellee in said affidavit stated that her demand is for alimony due her by virtue of a decree of a certain date in a certain cause then pending, wherein she was complainant and Leo Stauber was defendant, and the affidavit gave the dates when the four instalments here sued for became due, and stated that said decree was in full force and effect, and stated the amount due to plaintiff from defendants after allowing them all just credits, deductions and set-offs. The affidavit is perfect in form, except that it fails to state that' the defendants are liable by virtue of a bond given to secure the payment of said alimony. It was held in Haggard Bros. v. Smith, 76 Ill. 507, and in Gottfried v. German Nat. Bank, 91 Ill. 75, that an affidavit of claim is sufficient if, in connection with the declaration, it shows the nature of the cause of action. Here, .when the affidavit of claim is considered in connection with the declaration and copy of bond thereto attached, the nature of the cause of action is fully disclosed, and we hold that the court did not err in denying the motion to strike the affidavit of claim from the record.

The original affidavits of merits filed with the plea of non est factum were only that the plea was true. Prior to July 1, 1907, those affidavits would have been sufficient, but all the proceedings here involved were since that date, and by section 55 of the Practice Act of 1907 (J. & A. ¶ 8592) the affidavit of merits with the plea was required to specify the nature of the defense, which these affidavits did not do, and therefore they were properly stricken from the files. Thereupon Leo Stauber filed a lengthy affidavit, in which he attempted to state as a defense that the execution of the bond was procured under duress, and his father filed an affidavit of merits, repeating in part what the affidavit of Leo Stauber stated, and the brothers filed another affidavit of like tenor. It will be sufficient to consider the affidavit of Leo Stauber. By way of history it may be stated that appellee and Leo Stauber were before this court in relation to some of the matters involved in this appeal in 1912, in Stauber v. Stauber, 168 Ill. App. 179. The affidavit of Leo Stauber contained many words, such as “wantonly,” “wilfully,” “wrongfully,” “fraudulently,” “unlawfully,” “illegally,” which are expressions of opinion only and not statements ■ of fact. A large part of the affidavit is devoted to an indictment returned against him by the grand jury of La Salle county, charging him with embezzlement, under which indictment the Governor of Illinois issued a warrant for the extradition of Leo Stauber from Iowa and said warrant was honored by the Governor of Iowa and Leo Stauber was arrested and removed to the county jail of La Salle county. The affidavit alleges that appellee, his former wife, appeared before said grand jury and untruthfully testified before said grand jury, with the result that an indictment was returned against him, charging embezzlement, and it is charged that she, through other persons acting for her, fraudulently procured the warrant of extradition and fraudulently procured it to be honored by the Governor of Iowa. There is no statement showing that . the circuit court of La Salle county or the grand jury or the State’s Attorney acted fraudulently or improperly in regard to said indictment. The affidavit does not state what appellee testified before said grand jury nor what appellant regarded as untrue/ in her testimony. It is not stated that appellee was the only witness before said grand jury. Affiant states that he was not guilty of embezzlement. The fact which he states, and upon which he seems to rely as showing that he was not guilty of embézzlement, was that the embezzlement was alleged to have been on July 10, 1910, at which time the decree of divorce had'not yet been granted and therefore he was still the husband of appellee, the implication of the affidavit being that he could not legally be guilty of embezzlement from his wife while che divorce proceedings were pending. He does not say that he had not done that with his wife’s funds which would have been embezzlement if done after the divorce had been granted. He complains in said affidavit that appellee induced him to leave his home in Clinton, Iowa, and go to Davenport, Iowa, where he was arrested and removed to La Salle county. It is not claimed that it was any further from Clinton, Iowa to the State of Illinois than from Davenport, Iowa to the State of Illinois, and no fact is shown by which he was harmed by going from Clinton to Davenport. It further appears in said affidavit that after the affiant reached Ottawa he gave bail on the charge of embezzlement before this bond was executed, and therefore he was not in duress under said charge of embezzlement when he executed the bond sued on. The only harmful effect to him of the indictment and extradition of Leo Stauber was that it brought him within the jurisdiction of the circuit court of La Salle county in other matters. The affidavit states that after this bond was executed the indictment was discontinued. Appellee had no power to procure the abandonment of the indictment and the affidavit does not charge that she did. That was the act of the State’s Attorney and of the court, which must be presumed to have been for sufficient reasons, which may have been that the State’s Attorney concluded' that he had not sufficient evidence to convict or that it would be a defense that the marriage relation had not been dissolved when the supposed offense was committed, or that the State’s Attorney concluded that the indictment was not sufficient in form. The affidavit set out that two attachments were issued against him by the circuit court of La Salle county and under which attachments alone he was under arrest when this bond was given. One attachment was for violating an injunction issued May 13, 1910, and the other for violation of an order of June 23, 1910. He claims there was a defect in these orders, in that he was not given proper notice thereof. He does not state the nature of either of these orders and does not claim that he had complied with them. It is obvious from the decision in Stauber v. Stauber, supra, that he was represented by counsel at many stages of the proceeding, though not the counsel now representing him here. For aught that appears in this affidavit he may have been represented in those proceedings by counsel having full authority to act for him. He says he was sentenced to jail for one year on March 27, 1910, for contempt of court. If that proceeding was in any way irregular or improper, he had a complete remedy by appeal or writ of error. He does not state any fact which would show him not guilty of contempt of court. It is obvious that he was guilty of contempt of court. The decree of divorce required him to pay certain sums as alimony. He did not pay them. He does not claim in this affidavit that he was poor or unable to pay. He removed from the State, which may have been for the purpose of avoiding payment. This order fixing alimony was discussed by us in Stauber v. Stauber, supra, and we there held that said order was in effect requiring him to return to appellee the rest of her property, which he had misappropriated to his own use and which he ought to return. We indicated that when he had returned the principal of what he had received, very likely the allowance of alimony should be materially reduced. The affidavit charges that appellee informed said defendant, Leo Stauber, that this bond was the only way in which Leo Stauber could obtain his release from said imprisonment, and that she agreed that if they gave this bond, he would be released from 'the county jail and that the charge of embezzlement would be dismissed. It is apparent from the decision in Stauber v. Stauber, supra, that he had solicitors during all this time acting for him. He does not state in his affidavit that he was without legal counsel. For aught that appears they may have advised him to execute this bond. It is not to be presumed that when the family council was held in which it was decided to give security for the payment of this alimony the family entered into a bond to pay $10,000 without legal advice. If an imprisonment for contempt of court, of which the defendant is clearly guilty and to which he does not claim to have any meritorious defense, is to be regarded as duress, invalidating the bond by which he secured relief from the imprisonment, then we do not see why in any chancery or criminal case, one securing release from such imprisonment by giving a bond may not invalidate it. We are of the opinion that when this affidavit is considered in connection with the record and with the things which it fails to refer to, it does not show either duress or a meritorious defense, and therefore it and the affidavits of the father and brothers were properly stricken from the files.

It is said that there is one condition in the bond which was not required by the decree and it is argued that therefore the bond is void. The order requiring the bond is not in the record and therefore we cannot know that the bond contains conditions not required by the decree. If it had been shown that this bond contained a provision not required by the decree, still it is not shown that appellee or her solicitors prepared this bond. It is the bond of the defendants and in the absence of proof, the presumption must be that they or their solicitors prepared it. If so, the bond should not be rendered invalid because defendants inserted something in it that was not required by the decree. Moreover, this is not a suit to enforce that supposedly superfluous condition. It cannot now be known that any occasion to enforce it will ever arise. If, hereafter, appellee shall seek to enforce that condition, its validity may then be open to question; otherwise not.

It is said that “the affidavit of merits” was stricken from the files, whereas there were three such affidavits and it cannot be known which was stricken from the files, and therefore it was error to proceed to judgment. Section 55 of the Practice Act (J. & A. ¶ 8592) provides that plaintiff with an affidavit of claim shall be entitled to judgment unless defendant files with his plea the affidavit of merits therein provided for. It does not require that an insufficient affidavit be stricken from the files. It authorizes a judgment for plaintiff if defendant’s affidavit of claim only sets out a defense to a part of plaintiff’s claim. Henry v. Meriam & Morgan Paraffine Co., 83 Ill. 461. Of course, in such a case, the affidavit of merits must still remain on file. The case just cited holds that the court may, without striking the plea from the files, disregard it and render judgment as in case of default. In Braidwood v. Weiller, 89 Ill. 606, it is said that the usual way of taking advantage of the want of an affidavit of merits accompanying a plea is' by motion for a judgment as in case of default or by motion to strike the plea from the files. To the same effect is Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, pp. 521, 522, and Reddig v. Looney, 208 Ill. App. 413. The plea here was strickén from the files and it is obvious that a default would follow whether the affidavits were stricken or not.

Appellee’s counsel took the precaution to procure her deposition as she had removed to the State of Washington. Appellants moved to suppress it and to strike it from the files. Those motions were denied and those rulings are assigned for error. We do not find any valid reason why those motions should have been granted. The ruling is therefore approved.

The bond sued on and the deposition of Mrs. Stauber were not offered in evidence upon the hearing on the default. Under the statute above quoted it was not necessary that appellee offer any proof after the plea was stricken from the files, except upon the matter of computation. New York Nat. Exch. Bank v. Reed, 232 Ill. 123; Cramer v. Illinois Commercial Men’s Ass’n, supra; Braidwood v. Weiller, supra.

This suit was begun on September 22, 1913. The ad damnum in the declaration was $2,500. The affidavit of claim stated that the suit was to recover four instalments of $500 each, or $2,000, with interest at 5 per cent from the dates stated when they legally became due. The judgment was rendered June 29, 1918, and was for $2,517, being $17 more than the ad damnum. It is argued that the judgment is erroneous because it exceeded the ad damnum in the declaration. This_ question was not raised in the trial court. Defendant did not move for a new trial, but did move to. set aside the assessment of damages and assigned several special grounds therefor; and after judgment, moved to set aside the judgment “upon the grounds hereintofore stated.” All said grounds are preserved in the bill of exceptions, and they do not refer to the fact that the assessment of damages and the judgment exceeded the ad damnum, in the declaration. The point was therefore waived. Leathe v. Thomas, 218 Ill. 246; Jones & Laughlin Steel Co. v. Graham, 273 Ill. 379. The affidavit of claim called for interest at 5 per cent on the several instalments from the dates when they became due. The excess of the judgment over the ad damnum was caused by the interest accruing during the latter part of the delay of nearly 5 years between the commencement of the suit and the judgment. We said in Kewanee Nat. Bank v. Ladd, 175 Ill. App. 151, on p. 158, that in case of judgment where the ad damnum was exceeded by interest accruing during a long delay, the judgment should not be reversed for such excess. We are of opinion that the statement was not entirely correct, but should be modified by adding to it, “where a written motion for a new trial specifies the grounds relied on and such excess is not therein alluded to, and the point is not raised in the court below.”

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

Affirmed.