text:
    Frank Paskewie by H. C. Gerke, Guardian, Appellant, v. East St. Louis & Suburban Railway Company, Appellee.
    1. Pleading, § 102

      —when plea puis darrein continuance bad. A plea puis darrein continuance of a former adjudication of the same cause of action is had if such plea fails to allege that the former judgment pleaded is either satisfied or is in full force and effect.
    2. Infants, § 34

      —when person bringing suit as next friend presumed to have authority to act. Where an action is brought in the name of an infant by his “next friend,” such person is presumed to have authority so to bring the action.
    3. Infants, § 54

      —when judgment in action by next friend not void. A judgment in an action brought by a “next friend” in the name of an infant is not rendered void at law by the misconduct of the “next friend” and can be set aside only in equity.
    4. Infants, § 56

      —when decree by agreement will be set aside. A decree against an infant by agreement is erroneous but not void and may be set aside on a bill of review.
    5. Jurisdiction, § 69*—when exclusive jurisdiction may be waived. The rule giving exclusive jurisdiction of a cause of action to the court first acquiring jurisdiction of such action may be waived by the parties.
    6. Judgment, § 5

      —when judgment may be taken in county other than one in which first pending. Where the courts of two counties have jurisdiction of the parties and subject-matter of a cause of action, and where an action is . pending- in one of the counties on such cause and between the same parties, the parties may for any reason take judgment in the-other county.
    7. Lis pendens, § 12

      —who may take advantage of pendency of action in another court. Where the courts of two counties have jurisdiction of the parties and subject-matter of a cause of action, and an action thereon is pending in one county, only the defendant can take advantage of the pendency of such action in a second action on the same cause instituted in the other county.
    8. Judgment, § 360

      —when cannot he collaterally attacked. Where the courts of two counties have jurisdiction of the parties and subject-matter of an action, and where an action thereon is pending in the courts of one county, a judgment obtained in a second action on the same cause and between the same parties commenced in the other county during the pendency of the first action cannot be collaterally attacked.
    9. Judgment, § 391

      —how fraud in procuring judgment may he taken advantage of. Where the courts of two counties have jurisdiction of the parties and subject-matter of a cause of action, and an action thereon is pending in the courts of one county, and where a judgment is obtained in an action on the same cause and between the same parties commenced in the courts of the other county during the pendency of the first action, fraud in the procurement of such judgment can only be taken advantage of by appeal or other action directly attacking the judgment.
    10. Judgment, § 6*—when parties hound hy. Where parties voluntarily submit themselves to the judgment of a court they are bound by such judgment, although a prior action involving the same subject-matter be pending between the same parties.
    11. Judgment, § 401

      —when judgment may he pleaded in har. Where the courts of two counties have jurisdiction of the parties and subject-matter of a cause of action, a judgment obtained in one county may be pleaded in bar of a prior action involving the same subject-matter and between the same parties pending in the courts of the other county.
    12. Judgment, § 401

      —when may he pleaded in har. Where the courts of two counties have jurisdiction of the parties and subject-matter of an action, a judgment obtained in one county on such cause in an action brought in the name of an infant by his father as “next friend” may be pleaded in bar of a prior action on the same cause and between the same parties similarly brought in the other county.

      13. Judgment, § 321

      -—when may be directly attacked. A judgment may be attacked directly on the ground of fraud in its procurement.
    14. Courts, § 134

      —when court first obtaining jurisdiction may proceed with cause. If a judgment in an action commenced while an action between the same parties and on the same cause of action is pending in another county is vacated or set aside on the ground of fraud in its procurement, the parties may proceed with the action first commenced, where both counties have jurisdiction of the parties and subject-matter of the action.
    15. Pleading, § 102

      —when demurrer to plea alleging satisfaction of judgment on same cause of action properly overruled. In an action in the name of an infant by his father as “next friend,” where both the court of the county where the action was brought and the court of another county have jurisdiction of the parties and subject-matter of the action, a demurrer to a special plea alleging that during the pendency of the action a judgment was obtained in the court of the other county on the same cause of action, which judgment had been fully satisfied, held rightfully overruled.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Early, Hiles & Simpson, for appellant.
    Williamson, Burroughs & Ryder, 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.

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

   Mr. Presiding Justice Higbee

A declaration was filed in this case for Frank Paskewie, a minor, by his father, as next friend, against the East St. Louis & Suburban Railway Company, on May 15, 1914, charging that on May 4, 1914, while the plaintiff was returning from school, he was knocked down and injured by a car belonging to said company, and that in causing said injury said company was guilty of negligence. Subsequently H. C. Gerke, public guardian of Madison county, was appointed guardian for said minor, the father removed as next friend and such guardian substituted therefor, the declaration being so amended as to show such substitution. To this declaration the defendant filed the general issue and two special pleas. The case had been continued for a term and the first of the special pleas alleged that after the last pleading therein and before the filing of said special plea to wit, on the 10th day of August, 1914, the said minor, then acting by his father and next friend and by E. W. Krietner, his attorney, impleaded defendant in the Circuit Court of St. Clair county, Illinois, at the April term thereof, for and on account of the same wrongs and injuries declared upon in the declaration in this suit, and that said court having jurisdiction of the person of the defendant, did afterwards on the 10th day of August, 1914, enter judgment in favor of said Prank Paskewie, so suing by his father and next friend, John Paskewie, against said defendant for the sum of $444 and costs of suit, which judgment still remains in force and effect and such judgment is thereupon set forth in full in the plea. The second special plea is a formal plea of former adjudication, relying upon the same facts and alleging that said defendant thereafter paid to the attorney for the plaintiff the amount of said judgment. To the special pleas, the plaintiff filed a general and special demurrer. The special causes of demurrer alleged were that the Circuit Court of St. Clair county, Illinois, was without jurisdiction when it attempted to render judgment in said cause, for the reason that this suit was commenced to the May term, 1914, of the Madison county Circuit Court which convened on May 5, 1914; that no declaration or proceeding was filed in the Circuit Court of St. Clair county until August 10, 1914, the April term of said court in Madison county then still being in session; that the judgment in the Circuit Court of St. Clair county was entered August 10,1914, and all of said proceedings of said Circuit Court of St. Clair county were had after the Circuit Court of Madison county had acquired jurisdiction and said cause was still pending and undetermined; that therefore the Circuit Court of St. Clair county could not acquire jurisdiction of said cause and subject-matter for any purpose whatever; that said pleas do not aver that there was a hearing on the merits of the case in which judgment was attempted to be entered; that said E. W. Krietner, to whom the payment is alleged to have been made as attorney for said minor, had no legal or rightful authority to collect and receipt for any moneys due him arising out of said cause of.action or otherwise ; that said H. C. Gferke, who was appointed guardian of said minor by the Probate Court of Madison county, was the only person legally authorized to collect and receipt for moneys due said minor.

Upon a hearing the court overruled said demurrer, whereupon the defendant withdrew its plea of general issue and the plaintiff having elected to stand by and abide his demurrer to the defendant’s special pleas, judgment was entered in favor of the defendant and against the plaintiff in bar of the action. Judgment was also entered against the plaintiff for costs to be paid in due course of the guardianship of his estate. Seeking to reverse this judgment, the plaintiff below has brought the case to this court.

Appellant here claims that the Circuit Court of Madison county had acquired jurisdiction and that it was not deprived thereof by the action of the Circuit Court of St. Clair county in the suit brought by the same parties, for the same subject-matter, especially in view of the fact that the pleadings do not directly allege that there was a hearing in the St. Clair Circuit Court upon the merits of the case. He relies upon Schwarzschild & Sulzberger Co. v. Shapiro, 182 Ill. App. 40, and Miller v. McCormick Harvesting Co., 84 Ill. App. 571, which appear to hold pleas of former adjudication and puis darrein continuance bad for failing to state whether the judgment was satisfied or in full force and effect. It is plainly stated, however, in the pleas in question here that the judgment remained in full force and effect and also that it was fully satisfied by payment to the attorney for the plaintiff.

Appellee claims that an infant is bound by the act of his next friend in bringing suit, so far as any collateral attack on the judgment is concerned, that if there is any fraud the infant must resort to a court of equity to correct it. In Chudleigh v. Chicago, R. I. & P. Ry. Co., 51 Ill. App. 491, it was held that when a suit is instituted in the name of an infant by his “next frjend” the authority of the “next friend” so to do is presumed and that if such friend plays the infant false, the judgment is not thereby rendered void, but that the infant must resort to a court of equity to set the same aside. In Hunter v. Empire State Surety Co., 261 Ill. 335, it is held that even a decree against an infant by agreement is erroneous but not void, and that it may be set aside upon a bill of review. In Plume & Atwood Mfg. Co. v. Caldwell, 136 Ill. 163, it was held by our Supreme Court that “the rule giving exclusive jurisdiction to the court first acquiring it is one that the parties may waive. ’ ’

The parties to the suit in St. Clair county were identical with those to the suit pending in Madison county and the subject-matter was the same. Had there been no suit pending in Madison county, the Circuit Court of St. Clair county would, under the circumstances named, have undoubtedly had jurisdiction of both the subject-matter and the parties to the suit, and if the parties in order to expedite matters, or for other good cause, sought to take judgment in the Circuit Court of St. Clair county rather than to wait until the next term in Madison county, they had a right to do so and the defendant in this suit alone could take advantage of the former suit pending. A judgment so entered could not be attacked collaterally but if there was fraud in obtaining it, advantage thereof could only be taken by appeal or other action directly attacking the judgment. Where parties voluntarily submit themselves to the judgment of a court having jurisdiction of the subject-matter, they are bound by such judgment, though the same matter was pending in a prior suit. 11 Cyc. 987, subsec. C; Gregory v. Kenyon, 34 Neb. 640; Bassill v. Bassill, 207 Mass. 365.

It appears clear to us that if the appellant in this suit had been an adult and had brought suit in St. Clair county after this one was commenced in Madison county, obtained judgment and received the same and receipted therefor, that such judgment could be pleaded in bar to this snit, and there is no substantial reason why the same rule could not apply where an infant brings both suits by his father as next friend. If, however, there is fraud in connection with the procurement of the judgment, such judgment may be attacked directly, and if such attack is successful and the judgment is set aside or declared void, of course there would be nothing to prevent the parties from proceeding with the original suit commenced in another county. In this case according to the statement in the pleading the original judgment is still in force, has never been directly attacked and has in fact been satisfied by payment. It could therefore properly be pleaded in bar. to this action. The court below rightfully overruled the demurrer to the special pleas and its judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Charles R. Bartels, Appellant, v. J. W. Rudloff et al., Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Randolph county; the Hon, William E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action in attachment by Charles R. Bartels, plaintiff, against J. W. Rudloff, August Rudloff and Ed Rudloff, defendants, in the Circuit Court of Randolph county. In his affidavit plaintiff charged that defendant was about to depart from the State with .the intention of having his effects removed therefrom, and that within two years last past had fraudulently conveyed and assigned his effects so as to hinder and delay his creditors. August Rudloff and Ed Rudloff filed interpleader claiming the property attached under a chattel mortgage given to them by defendant to secure an indebtedness of about $3,200. Trial by jury was waived. The court found for plaintiff for the amount of his debt and awarded execution thereon, but found for the interpleaders and quashed the writ of attachment, ordering the release of the property attached.
    From the judgment and order on the interpleader, plaintiff appeals.
    Plaintiff resided in St. Mary’s, Missouri, and owned a farm on Kaskaskia Island in Randolph county, Illinois. J. W. Rudloff had been a tenant on this farm for a number of years handling stock and grain. Plaintiff had taken up a mortgage against the tenant, and through various transactions an indebtedness had accnmulated against him in favor of plaintiff, amounting to $3,588.68. In November, 1913, the parties attempted to reach a settlement as to the amount due plaintiff and, failing to do so, agreed to submit the matter to the interpleaders and John F. Bartels, a brother of plaintiff, as arbitrators. It was further agreed that whatever amount the arbitrators found due to plaintiff should be immediately paid or secured and that possession of the premises should be surrendered. The arbitration was never concluded. On November 26, 1913, J. W. Rudloff executed a note for $3,200 due in one year, payable to August Rudloff and Ed Rudloff, with interest at seven per cent., to secure which he gave a chattel mortgage. The note and mortgage were not satisfactory, and on December 1st he executed a new note to the interpleaders for the same amount and a new mortgage covering the same property. This mortgage was recorded December 5th, and a day or two thereafter the note was delivered to Ed Rudloff. December 13th following, plaintiff filed his affidavit for attachment. There was no proof that J. W. Rudloff was about to leave the State with the intention of removing his effects therefrom.
    Abstract of the Decision.
    1. Fraudulent conveyances, § 111

      —when insolvent debtor may prefer creditors. An insolvent debtor who does not take the benefit of the General Assignment Act (J. & A. If 6234 et seq.) may prefer one creditor to the exclusion of others if such preference is in good faith.
    2. Fraudulent conveyances, § 109

      —when insolvent debtor may prefer creditors. An insolvent debtor may secure certain creditors to the exclusion of others, if he acts in good faith, although such preference may to that extent operate to hinder and delay his general creditors.
    H. Clay Horner, T. B. Whitlege and R. E. Sprigg, for appellant.'
    A. G. Gordon and P. B. Hood, for appellees.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

3. Fraudulent conveyances, § 264 —when evidence sufficient to show bona fide indebtedness. In an action in attachment where the property attached was claimed in interpleader hy the holders of a chattel mortgage of such property given hy defendant, evidence held sufficient to prove that at the time such mortgage was given defendant was in good faith indebted to interpleaders in the amount of the note secured by the mortgage.

4. Arbitration and award, § 20 —what are duties and liabilities of arbitrators. Arbitrators, like jurors, are held to the highest degree of good faith, and can have no secret interest in the subject-matter of the arbitration.

5. Arbitration and award, § 17a*—when arbitrator not disqualified. The fact that one of the parties to an arbitration is indebted to an arbitrator may unfit such arbitrator to act as such in the matter to be arbitrated.

6. Arbitration and award, § 75 —when award may be attacked. An award made by arbitrators may be attacked on the ground of the disqualification of arbitrators to act by reason of the fact that one of the parties to such arbitration was indebted to such arbitrators.

7. Arbitration and award, § 17a —when rules as to qualification of arbitrators apply. Rules as to the qualification of arbitrators apply only to their action as such making an award on the matters submitted.

8. Arbitration and award, § 20 —when arbitrator has right to obtain security for debt. Where a contemplated arbitration is never concluded, the persons selected to act as arbitrators therein occupy the same position towards the parties as though such arbitrators had never been selected to act as such, and if such arbitrators are creditors of one of the parties to the proposed arbitration, such arbitrators have the same right as other creditors to obtain security for their debts.

9. Fraudulent conveyances, § 17*—when mortgage does not constitute fraudulent conveyance to hinder and delay creditors. In an action in attachment, where the goods attached were claimed in interpleader by the mortgagees in a chattel mortgage of such goods given by defendant, held that the giving of such mortgage was not a fraudulent conveyance of effects to hinder and delay creditors within the meaning of clause 7 of section 1 of the Attachment Act (J. & A. If 492), although it appeared that at the time such mortgage was given defendant was insolvent, it also appearing that at such time defendant was in good faith indebted to interpleaders in the amount of the note secured by the mortgage, and that such mortgage was given in good faith.


text:
    J. J. Renner, Appellee, v. St. Louis, Iron Mountain & Southern Railway Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Randolph county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by J. J. Renner, plaintiff, against the St. Louis, Iron Mountain & Southern Railway Company, defendant, in the Circuit Court of Randolph county, to recover for injuries to crops growing on a farm rented by plaintiff, for the years 1910, 1912 and 1913. From a judgment for plaintiff for $1,162, defendant appeals.
    A judgment obtained by plaintiff’s landlord in an action previously brought against the same defendant was reversed by this court in Ufflemann v. St. Louis, 1. M. & S. Ry. Co., 194 Ill. App. 42, on the ground that the suit being for rental values only no recovery could be had by the landlord for injuries to crops since the title to the crop was in the tenant until delivered or paid to the landlord.
    Plaintiff rented the land from year to year, commencing in 1909, and paying as rent one-third the crops, except the hay of which he paid one-half. The farm consisted of about 259 acres and was intersected by defendant’s railroad, leaving 200 acres thereof northeast of the right of way. The natural slope of this 200-acre tract is towards the railroad and through it Modoc Creek flows in a southwesterly direction passing under defendant’s track and into a slough some 500 feet on the other side. This slough nearly parallels defendant’s right of way and carries the water about two miles further on where it empties into the Mississippi River. Modoc Creek formerly spread over all this land but before the railroad was constructed the channel was cleaned out and straightened. Since the construction of the railroad, overflow channels have also been dug and all the water gathered by the channel flows under the railroad track and into the slough through three openings provided therefor by defendant, the main one being thirty-nine feet long, thirteen feet wide and some three feet deep. The embankment across the land in question, upon which the rails are laid, is about three and a half feet in height. Plaintiff claims that by reason of the maintenance of defendant’s embankment, the improper construction of the outlets under it and the fact that materials were permitted to fill up the outlet, the water in times of heavy rains was held back and destroyed his crops.
    Defendant claimed that before the embankment was built the land in question was low, wet, marshy and unfit for cultivation, and that nq( crop could have been raised on it except in excessively dry years; that by the washing down of silt and soil from the bluffs, which filled in east of the railroad, the land was improved instead of injured; that part of the overflow and damage was caused by a failure on the part of appellee to ¡.keep open the ditches on the land; that plaintiff is not entitled to recover because at the time he rented the land and from year to year thereafter, upon the renewal of his lease, he was fully advised of the existence of the embankment and the conditions relating to it. A number of witnesses were produced by the parties whose testimony was conflicting and at great variance.
    The court gave the following instructions on behalf of plaintiff:
    “The Court instructs the jury that if you believe from the greater weight of the evidence that the plaintiff was injured by the overflow waters of the said Modoc Creek, as alleged in the declaration, by the failure of the defendant to construct the necessary culverts or sluices, as the natural lay of the said land requires for the necessary drainage thereof, as alleged in the declaration, then the fact, if it is a fact, that the plaintiff knew before he leased said land, that said Modoc Creek frequently overflowed its banks, and knew of the conditions of the said railroad embankment and bridge, such, knowledge on the part of the plaintiff would not be a bar to his recovery in this suit, and such knowledge of itself would constitute no legal defense for the defendant.
    “The Court instructs the jury that the law of Illinois provides that in no case shall any railroad company construct or maintain its roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof.
    “The Court instructs the jury that the duty of a railroad company to so construct its road across a stream or natural watercourse as not to injure adjacent land by throwing water back upon the same is a continuing one and every continuance of such nuisance is, under the law, a fresh nuisance and injury. Each overflow upon the land of the adjoining owner, caused by the improper construction of a railroad company, in its mode of constructing or maintaining an embankment or bridge over a natural watercourse, creates a new cause of action against the company that built, or the company that may be operating and maintaining such embankment or bridge at the time of such overflow, for injuries thereby caused, to the owner or the lessee lawfully in possession of such land.
    “The Court instructs the jury that although a railroad company may construct a crossing over a natural watercourse in a skilful manner and according to approved principles of engineering, yet if injury necessarily results to the adjoining landowner or to any person lawfully in possession under the owner, the company will be liable.”
    H. L. Browning and L. O. Whitnel, for appellant; Sprigg & Gilster and Edward J. White, of counsel.

      Abstract of the Decision.
    1. Railroads, § §50

      —when evidence sufficient to sustain finding that culverts inadequate to carry off water. In an action against a railroad company to recover for injury to crops by being overflowed by water, where the land in question sloped towards defendant’s railroad embankment and was drained by a river which flowed under such railroad through openings in the embankment constructed and maintained by defendant, evidence held sufficient to warrant a finding that the openings through defendant’s embankment were insufficient to carry off the water from plaintiff’s land within a reasonable time, by reason of which such water was held back on plaintiff’s land, injuring the crops growing thereon.
    2. Railroads, § 353

      —when damages awarded tenant for injury to crops t>y overflow not excessive. In an action by a tenant against a railroad to recover for injury to his crops by overflow, where the lease provides that the rent reserved thereby shall he one-third of the crops raised thereon, a verdict is not excessive where plaintiff confines his proof to two-thirds of the total loss sustained, and where the verdict was for $1,162, while the total loss proved was $1,970.
    3. Railroads, § 345

      —when tenant may maintain action to recover damages for injury to land hy overflow. In case of injury to land by overflow due to inadequacy of railroad culverts to carry off water, the holder of a leasehold interest therein has a right of action to recover the proportion of the damages caused hy such injury which such tenant has personally sustained, unless the land was leased after the wrongful act was done which caused the injury.
    4. Waters and watercourses, § 24

      —when tenant from year to year may not maintain action for damages to crops due to overflow. The general rule is that a tenant from year to year who renews his lease with knowledge of wrongful acts by an adjoining owner which have already caused injury to the crops of such tenant, due to overflow, cannot recover from such adjoining owner for injury to crops caused by such wrongful acts during the year for which such lease has been renewed.
    A. E. Crisler and A. C. Bollinger, for appellee.

      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.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

5. Railroads, § 345 —when liable to tenant for damages due to failure to construct proper culverts. The general rule applicable to tenants who lease property with a knowledge of injury already done to the leased property does not apply where the injury is caused by the construction of a railroad which is controlled by clause 5 of section 19 of the Railroad Act (J. & A. If 8754), providing that “in no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of. the land requires for the drainage thereof.” „

6. Railroads, § 332 —when railroad liable for nuisance, without notice to remove. The rule that one who comes into possession either as grantee or lessee of land on which a nuisance exists cannot be held liable for damages caused thereby prior to notice, and a request to remove the nuisance has been changed by clause 5 of section 19 of the Railroad Act (J. & A. 8754), in so far as applicable to railroads constructed after the passage of the statute.

7. Railroads, § 328 —when must construct necessary culverts and sluices. Under clause 5 of section 19 of the Railroad Act (J. & A. jf 8754), the construction of all culverts and sluices necessary for the drainage of water naturally draining through the land covered by the right of way is a condition precedent to the construction of a railroad after the passage of the act, the statute in positive and express terms prohibiting the construction of the railroad until such requirement is complied with.

8. Railroads—when burden on to show grounds for failure to construct required culverts and sluices. In an action against a railroad to recover for injuries to land caused by the failure of defendant to construct culverts and sluices through its embankment as required by clause 5 of section 19 of the Railroad Act (J. & A. K 8754), the burden is on defendant, where the embankment in question was constructed since the passage of the statute, affirmatively to show facts in excuse of its failure to comply with the statute.

9. Railroads, § 342 —when successive actions maintainable for injury due to improper construction of. Under clause 5 of section 19 of the Railroad Act (J. & A. 8754), the duty of a railroad company to construct and maintain its road across a stream in such manner as not to injure the adjacent land by throwing water back upon it is a continuing one, and each overflow resulting from a neglect to perform the duty required by the statute creates a new cause of action for the injury to land and crops caused thereby.

10. Railroads, § 315 —when tenant may assume that obstruction of drainage will not be continued. A tenant who leases premises with knowledge of the defective construction of railroad embankments on such premises which tend to obstruct drainage from his land, may act upon the presumption that the nuisance occasioned thereby would not be continued and that the railroad company would perform the continuing duty imposed by clause 5 of section 19 of the Railroad Act (J. & A. 1f 8754), to construct such culverts and sluices through its embankments as are necessary to drain adjacent land.

11. Railroads, § 345 —when tenant from year to year may maintain action for injury to crops due to overflow. In an action by a tenant to recover for injury to his crops by reason of the overflow of water on his land due to the imperfect construction of openings through a railroad embankment through which the water drained from plaintiff’s land, held that plaintiff’s action was not barred although it appeared that plaintiff was a tenant from year to year and had renewed his lease with a knowledge of the imperfections in the embankment and that such imperfections might injure such crops by causing an overflow of water thereon.

12. Railroads, § 352 —when instruction in language of statute relative to construction.of culverts and sluices proper. In an action against a railroad corporation- to recover for injury to crops as a result of the failure of defendant to comply with clause 5 of section 19 of the Railroad Act (J. & A. t 8754), providing that “in no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires for the drainage thereof,” an instruction which stated the requirements of the statute held proper.

13. Instructions, § 151 —when may be refused. Requested instructions may be refused where such instructions are covered by other given instructions.

14. Railroads, § 350 —when evidence sufficient to sustain verdict. In an action by a tenant against a railroad to recover for injury to crops due to overflow, evidence held sufficient to entitle plaintiff to recover.

15. Railroads, § 352 —when instruction as to liability of railroad although tenant knew of condition of culverts proper. In an action by a tenant against a railroad company for damages for injury to crops sustained as a result of overflow caused by insufficient culverts, an instruction as to the liability of defendant, although plaintiff knew before he leased the land that the creek frequently overflowed its banks and of the condition of the railroad embankment, approved.

16. Railroads, § 352 —when instruction as to duty of proper construction of road over watercourses being continuing one, and each overflow creating cause of action proper. In an action by a tenant against a railroad company for damages for injury to crops sustained as a result of overflow caused by insufficient culverts, an instruction that the duty of the railroad to so construct its road across a natural watercourse as not to injure adjacent property owners by overflow was a continuing one, and that each successive overflow due to such cause created a new cause of action, approved.

17. Railroads, § 352*—when instruction as to liability to owner or tenant for injury. due to overflow proper. In an action by a tenant against a railroad company for damages for injury to crops sustained as a result of overflow caused by insufficient culverts, an instruction that defendant was liable for injury necessarily sustained by owner or tenant even though construction of road over natural watercourse skilfully done, approved.


text:
    Sylvester Kemp, Defendant in Error, v. Southern Coal & Mining Company, Plaintiff in Error.
    1. Mines and minerals, § 141

      —when declaration sufficiently alleges violation of duty to inspect roof of mine. In an action by a miner to recover for injuries sustained by reason of being struck by a clod which fell from the roof of a mine, a declaration alleging that at the time when' plaintiff was injured a dangerous condition existed in the roof above the place where plaintiff was required “to work and to be,” held sufficiently to allege a violation of section 24 of the Miners’ Act (J. & A. U 7495), requiring the mine examiner to inspect places in the mine where men “are required in the performance of their duties to pass and to work,” and to mark all dangerous roofs in such places.
    2. Mines and minerals, § 179

      —when evidence sufficient to sustain finding that miner was in working place at time of injury. In an action by a miner to recover for injuries sustained by being struck by a large clod which fell from the roof of the room where plaintiff was when injured, where the declaration alleged a violation of section 24 of the Miners’ Act (J. & A. jf 7495), requiring the mine examiner to inspect all places where men were required in the performance of their duty “to pass and to work,” and to mark all dangerous places, evidence held, to show that plaintiff was in his working place at the time of the accident within the meaning of the act.
    3. Mines and minerals, § 173

      -—when evidence sufficient to comply with statute. In an action by a miner to recover for injuries sustained by being struck by a large clod which fell from the roof of the room where plaintiff was when injured, where the declaration alleged a violation of section 24 of the -Miners’ Act (J. & A. If 7495), requiring the mine examiner to inspect all places where men were required in the performance of their duties “to pass and to work,” and to mark all dangerous places, evidence held sufficient to comply with the statute.
    4. Mines and minerals, § 41

      —what is object of Miners’ Act. The object of the Miners’ Act (J. & A. If 7475 et seq.) and of other similar acts is to provide for the safety of those engaged in mining, and the requirement of too literal a compliance therewith will deprive such acts of the power to accomplish their object.
    5. Mines and minerals, § 132

      —when miner failing to sound roof of mine guilty of contributory negligence. In an action -by a miner to recover for injuries sustained as a result of being struck by a large clod which fell from the roof of the room where plaintiff was when injured, where there is a violation of section 24 of the Miners’ Act (J. & A. If 7495) by defendant, a violation by plaintiff of paragraph C of section 23 of the same Act (J. & A. If 7497), requiring miners to sound and examine the roof of their working places before commencing work, amounts merely to contributory negligence.
    6. Mine§ and minerals, § 125

      —when contributory negligence no defense. Contributory negligence is no defense to an action brought under the Mining Act (J. & A. f[ 7475 et seq.).

    7. Mines and minerals, § 176

      —when evidence sufficient to show dangerous condition of roof of mine. In an action by a miner to recover for injuries sustained by being struck by a large clod which fell from the roof of the room where plaintiff was when injured, evidence held to show that at the time of such injury such roof was in a dangerous condition.
    8. Mines and minerals, § 84

      —when owner or operator liable for wilful violation of statutory duty to inspect mine. Under the Miners’ Act (J. & A. jf 7475 et seq.), the owner or operator of a mine cannot excuse himself from liability growing out of a wilful violation of such statute in failing to examine the mine properly and to mark dangerous places therein, which are known to him by showing that his examiner or manager thought the place was not dangerous.

      9. Mines and minerals, § 84

      —what constitutes wilful violation of Mining Act. The phrase “wilful violation” used in section 29 of the Miners’ Act (J. & A. f 7503) means a conscious violation.
    Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Kramer, Kramer & Campbell, for plaintiff in error.
    F. J. Tecklenberg and D. J. Sullivan, for defendant in error.

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

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Sylvester Kemp, defendant in error, was severely injured while working in a coal mine of plaintiff in error, on September 20,1911, and brought suit against the company to recover damages for the injury sustained. Two trials were had by a jury resulting in favor of Kemp, and a third trial was then had before the court without a jury on a transcript of the evidence heard on the former trial. Upon this trial the court found the issues for Kemp and entered judgment against the company for $7,000, and the latter has brought the case here by writ of error seeking to reverse the judgment on the ground that the evidence is not sufficient to support the finding and judgment in favor of Kemp, that he was not entitled to recover even if the injury to him happened in his working place in the mine, because he did not perform the duties enjoined upon him by the statute in making an examination of the roof of the working place and because, as alleged, the court erred in its holdings on propositions of law and fact submitted by plaintiff in error.

There was little controversy on the facts in the case, as shown by the proofs. The company owned and operated a coal mine in St. Clair county, Illinois. One of the rooms in this mine was known as room No. 20, off the northwest entry, and it was in this room that Kemp and his buddy began working. At the time of the injury this room was seventy feet long, thirty feet wide and some six feet high, and had in it a main track for cars running to within about ten feet of the face with points or spurs therefrom close up to the face. In mining the coal it was undercut with a machine and then shot down, loaded into cars and taken out. No shot fixers were employed, the miners themselves both drilling the holes and firing the shots. Kemp and his buddy went to work there September 14th and worked together until the 17th, which was Sunday. On Monday and Tuesday Kemp worked alone, and on the morning of Wednesday the 20th he again went to the room alone to continue his work. He entered the mine about 8 o ’clock, taking with him his dinner bucket and an oil bucket which he placed some eighteen feet from the face, three or four feet from the left side of the room and eight or ten feet from the track. He went to work shoveling up the coal which he had shot down the day before. He cleaned up next to the track and after he had loaded two cars and had shoveled the remaining coal on the left side back towards the face he was compelled to stop until he could get an empty car to load the coal-into. While waiting for a car he went back to his bucket and filled his lamp. He then took a drink from his dinner bucket and was in the act of getting something to eat when a large clod, three feet long, two and a half feet wide, some three and a half inches thick and weighing about one hundred pounds fell from the roof upon him inflicting severe and permanent injuries.

No complaint is made that the amount of the judgment in this case is excessive, so it is unnecessary to refer to the nature and extent of the injuries received by Kemp. The company’s mine examiner, who examined the room on the morning the accident occurred and made a record thereof, stated there were no unsafe roofs or unsafe conditions, and it was shown by the proofs that the place in the roof where the clod was located was not marked as dangerous. At the time of the injury, the Miners’ Act of 1911 was in force, and the provisions of that act in regard to inspecting and marking dangerous places were set out in paragraphs 4 and 6 of section 21 (J. & A. 7495) as follows:

“It shall be the duty of the mine examiner * * * to inspect all places where men are required in the performance of their duties, to pass or to work, and to observe whether there are any recent falls or dangerous roof or accumulations of gas or dangerous obstructions in rooms or roadways. * * * When working places are discovered in which there are recent falls or dangerous roof or dangerous obstruction, to place a conspicuous mark or sign thereat, as notice to all men to keep out; and in case of accumulation of gas, to place at least two conspicuous obstructions across the roadway, not less than twenty feet apart, one of which shall be outside the last open cross-cut.” Counsel for appellant insist that the declaration was insufficient to support a finding and judgment in favor of Kemp and that proof of its allegations does not entitle him to a recovery. Each count of the declaration alleged that there was a dangerous condition in the roof above the place where plaintiff was required to work and to be and that this condition would have been discovered by the mine examiner had he made a reasonable examination of the room, but that he failed to make such an examination of the room and while plaintiff was at his working place waiting for the box which he had loaded to be removed, he was injured by the clod falling upon him. While the charge in the declaration was that there was “dangerous condition in the roof above the place where plaintiff was required to work and to be” and that the same would have been discovered, had the mine examiner “made a reasonable examination of the room,” the Act of 1911 relied on only makes it the duty of the examiner “to inspect all places where men are required in the performance of their duties, to pass or to work, and to observe whether there are any recent falls or dangerous roof or accumulations of gas or dangerous obstructions in rooms or roadways.”

The criticism of counsel for plaintiff in error is that there was no duty under the statute which required the company to mark the place where plaintiff was required “to work and to be,” but that its duty was only to. inspect and mark places where men were required in the performance of their duty “to pass and to work,” and further that it must be such place as one is required to pass and work in the performance of his duty. This distinction does not appear to us to be sound, and while the declaration does not use the exact words of the statute, yet we think the words used were sufficient to warrant a recovery in a proper case, under the statute. Counsel also criticises several -counts of the declaration as being insufficient to support a finding and judgment in favor of defendant in error for the reason that they allege that had the mine examiner made a reasonable examination of the room he would have discovered the dangerous condition, it being' claimed that under the Act of 1911 it was not the duty of the examiner to make an examination of the whole of the room but only of the place where the men ‘ ‘ are required in the performance of their duties to pass or to work.” This criticism of counsel also appears to us to be without sound foundation, especially in view of the fact that the statute directly requires that when working places are discovered in which there are dangerous roofs, the same shall be marked by the examiner. That Kemp was in his working place at the time he was injured, seems to us to be borne out by the proof. It is true he was not engaged in the work of drilling, firing or loading coal at the exact time when he was injured, but at that time he was engaged in filling his lamp and in taking water and food, all of which were necessary in the prosecution of his work at a place in the room as close to his work as the buckets containing the oil, water and food could be placed without actually interfering with his work. In fact it appears from the proof that some of the coal which had been blown down the day before was scattered around the place where the buckets sat and that part of his work was to clear this up. It appears to us that upon these questions, both the declaration and the proof were within the Statute of 1911, and to require a more literal compliance with the statute would be to deprive it of its power of providing for the safety of those engaged in mining, which must be the object of all mining acts. Henrietta Coal Co. v. Martin, 221 Ill. 460.

It is also claimed by counsel for the company that Kemp ought not be entitled to recover because he did not perform certain duties required of him by the Act of 1911. Paragraph C, section 23 of that Act (J. & A. j[ 7497) provides: “Every miner shall sound and thoroughly examine the roof of Ms working place before commencing work, and if he finds loose rock or other dangerous conditions, he shall not work in such dangerous place except to make such dangerous conditions safe. It shall be the duty of the miner to properly prop and secure Ms place for his own safety with materials provided therefor.” Counsel insist that it was Kemp’s duty under the statute to .have sounded and examined the roof before he commenced work and that if he did not do so, and there is no evidence that he did, he should not be permitted to recover. Paragraph A, section 29 of the Act of 1911 (J. & A. 7503) provides a penalty for any wilful neglect, refusal, or failure to do the things required to be done by the several sections thereof, and the question might arise in a proper case as to whether Kemp had made himself subject to pay that penalty, but his omission to perform Ms statutory duty to examine the roof, if he did omit it, couM in a case of this Mnd amount at most only to contributory negligence on his part wMch is no defense to a suit brought under the mining law. Illinois Collieries Co. v. Davis, 137 Ill. App. 15, aff’d 232 Ill. 284; Riverton Coal Co. v. Shepherd, 111 Ill. App. 294, aff’d 207 Ill. 395.

It is again insisted that there was no wilful failure on the part of the mine examiner to inspect the places where plaintiff was required in the performance of Ms duties to pass or to work, and no wilful failure on the part of the examiner to make a proper record of examination. This is based on the fact that the proof showed the examiner did, in fact, make an examination of the mine and made a record of its condition as he claimed to have found it. That record showed that a number of rooms examined by him, including No. 20, were in good condition and that in the same there were no unsafe roofs or other unsafe conditions. The fact is, however, that the proofs show the roof in this room to have been in an unsafe condition. In Actitus v. Spring Valley Coal Co., 246 Ill. 32, it is said: “We do not think the owner or operator of a mine can excuse himself from liability growing out of a wilful violation of the Mines and MiMng Act,—that is, from a conscious violation of the act,—in failing to properly examine the mine and mark dangerous places therein which are known to him, on the ground that his examiner or manager in good faith thought the place was not dangerous.”

The objections made by plaintiff in error to the rulings of the court upon the propositions of fact and law submitted by it do not appear to us to be well founded and relate, so far as they seem to be important, to questions which have been heretofore considered in this opinion and need not be again referred to. The finding and judgment in this case appears to us to be warranted by the evidence and the law. There have been three trials, twice before a jury and once before a court without a jury, all resulting in a finding in favor of defendant in error, and no substantial reason / appearing to us why the judgment should be reversed, the same is affirmed.

Judgment affirmed.


text:
    Nancy Davis, Appellee, v. East St. Louis Lodge No. 4 Loyal Order of Moose, Appellant.
    1. Insurance, § 898

      —when evidence sufficient to show that member of lodge “financially dependent.” In an action to recover funeral expenses under a certificate of beneficial insurance by a lodge of an order, whose by-laws provided for such recovery, where deceased was “financially dependent” on such lodge for such funeral' expenses, an instruction was given at the request of defendant that “the term ‘financially dependent’ as used in the bylaws * * * means that the deceased member has no other source of revenue or funds from which his funeral expenses may be derived but that of the funds of the Lodge,” and where on such instruction the jury found for plaintiff, evidence held sufficient to show that deceased was “financially dependent” within the meaning of the by-laws as defined by such instruction, although plaintiff in fact paid such funeral expenses in part from money received from other insurance.
    2. Witnesses, § 180

      —when question improper as assuming facts. A question asked of a witness on cross-examination, “what was the name of the car repairers’ association to which he belonged to, if you know,’ held improper in form as assuming that the person referred to was a member of a car repairers’ association.
    3. Insurance, § 884

      —when evidence that lodge member belonged to another association incompetent. In an action to recover for funeral expenses under a certificate of beneficial insurance issued by a lodge of an order, whose by-laws provided for the payment of a sum not in excess of a sum named, where deceased was “financially dependent” on such lodge for such funeral expenses, evidencé that deceased was a member of another association held incompetent, where it was uncontradicted that deceased’s estate had no money or property, and received no insurance payable to such estate with which to pay such funeral expenses.
    4. Insurance, § 908

      —when instruction states lodge jurisdiction correctly. In an action against a lodge of a beneficial order to recover funeral expenses under a certificate of beneficial insurance, issued by another lodge of the same order, where the by-laws of the order provided that where a member of a lodge died within the jurisdiction of another lodge, such last-named lodge shall pay the amount due under the certificate, which should be repaid by the home lodge, an instruction that if the lodge of which deceased was a member was liable for the amount sued for, and if deceased died within the jurisdiction of defendant lodge, then the defendant was liable, held to state the question of lodge jurisdiction correctly.
    5. Insurance, § 908

      —when instruction on lodge jurisdiction need not state general conditions under which plaintiff entitled to recover. In an action against a lodge of a beneficial order to recover funeral expenses under a certificate issued by another lodge of the same order, whereby the by-laws of the order provided that where a member of a lodge died within the jurisdiction of another lodge, such last-named lodge should pay the amount due under the certificate which should be repaid by deceased’s home lodge, held that an instruction directed to the question of lodge jurisdiction under the by-laws need not state the general conditions under which plaintiff was entitled to recover where a subsequent instruction correctly instructed the jury on the other conditions of such recovery.
    6. Insurance, § 908

      —when instruction not obnoxious as assuming financial dependency of member on lodge. In an action to recover for funeral expenses under a certificate of benefit insurance, where plaintiff’s right to recover depended on whether at the time of his death deceased was “financially dependent”' for such funeral expenses on the lodge issuing the certificate within the meaning of the by-laws of the order, and where an instruction was given defining the meaning of the quoted phrase as applied to the evidence, an instruction given for plaintiff examined and held not obnoxious as assuming that deceased was so dependent, and that such question was by such instruction plainly left to the jury.
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flanniqan, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.

      Louis Beasley and W. H. Weber, for appellant; Arthur H. Jones, of counsel.
    M. Millard and William P. Launtz, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Thomas P. Davis, deceased, the husband of appellee, had lived in East St. Louis for a number of years, but while working in Boodhouse, Illinois, had joined the Boodhouse Lodge of the Loyal Order of Moose. On November 15th he was injured in East St. Louis, and died the following morning in that city. The by-laws provided that each beneficiary should pay his dues quarterly in advance on the first days of January, April, July and October of each year, the same go be credited on the day actually received by the secretary, and in case a member should be in arrears fifteen days after the expiration of the quarter for which his dues were paid, he should not be “beneficial” until after a period of thirty days immediately after the payment of all arrearages. They further provide that at the next regular meeting, after the death of a benefit member, who is not in arrears for dues and is otherwise in good standing, his lodge shall prepare and draw a warrant for such sum as the by-laws provide and apply the same to the payment of the funeral expenses, which in no case shall be more than $100; that when such member of a subordinate lodge dies beyond its jurisdiction, all necessary expenses of sickness or burial, to the amount allowed by the by-laws of the home lodge of such member, shall be paid by the lodge within whose jurisdiction said sickness or death shall have occurred, which amounts shall be repaid by the home lodge; that in the event that deceased is financially dependent upon the lodge for his funeral expenses, the thirty days’ penalty imposed shall not apply. Davis did not pay his dues, accruing on October 1, 1913, until November 7, 1913, which placed him in arrears more than fifteen days after the expiration of the quarter for which his dues should have been paid, and it is conceded that the right of recovery in this case hing’es on whether he was financially dependent on the lodge for his funeral expenses or not. The jury which tried the case found that he was financially dependent and returned a verdict in favor of plaintiff for $100. A motion for a new trial was denied and judgment entered for that amount.

Appellant complains that the evidence does not sustain the verdict; that it was denied the rig'ht of proper cross-examination and that the jury were improperly instructed on the part of appellee. The only evidence as to the financial condition of Davis at the time of his death was the testimony of appellee, who stated that he was a laborer who worked for a living; that he lived off of the wages which he earned; that he had no property or money at the time of his death; that he was insured in the Prudential Insurance Company and belonged to the Bed Men; that no money was received from any insurance except the Prudential, which was payable to her; that the funeral expenses were paid by her out of the money received from the Prudential Insurance Company, so far as it went, but that she had to borrow $57.50 to complete the payment; that the funeral expenses, amounting to $189, were fully paid by her and none of it came from property or money belonging to deceased. At the request of appellant the jury were instructed: “The term 'financially dependent’ as used in the by-laws of the Loyal Order of Moose, means that the deceased member has no other source of revenue or funds from which his funeral expenses may be derived but that of the funds of the Lodge.” Assuming that this definition is correct, it clearly appeared from the proofs that deceased was financially dependent within the meaning of the bylaws. That appellee received a portion of the money with which the funeral expenses were paid from the Prudential Insurance Company does not in any way affect this question, as the money so derived belonged to her individually and not to the estate of the deceased.

On the cross-examination of appellee counsel for appellant asked her in reference to her husband: “What was the name of the car repairers’ association he belonged to, if you know?” Objection was made to this question by counsel for appellee and sustained by the court. To this ruling appellant excepted and claims here that the same was error. The question was improper in form as it assumed that deceased was a member of a car repairers’ association and for that reason should not have been permitted to be answered; but even if the question had been properly framed, it would not have been competent as the evidence was uncontradicted that there was no money or property of deceased or insurance received belonging to him to -pay his funeral expenses, and the same were not paid out of his money or means. Criticism is made of the first instruction given for appellee, for the reason that it is argumentative and ignores the question whether deceased was financially dependent upon the lodge for his funeral benefit at the time of his death. This instruction, however, was not directed to that question, but only to the question of lodge jurisdiction and told the jury that if the lodge at Eoodhouse was liable for the funeral benefits sued for and appellee’s husband died within the jurisdiction of the defendant lodge, then the defendant lodge was liable for such benefit. This correctly stated the question of jurisdiction under the by-laws of the organization, and it was not necessary to elaborate as to the conditions covering the general right of appellee to recover. The next instruction, however, given for appellee did state, as a requirement to the right of recovery, that the jury must find that deceased was a beneficiary member of the order and dependent upon his lodge for his funeral expenses. Objection is made to the second instruction given for appellee, upon the ground that it assumed that the deceased member was dependent upon the lodge for. his funeral benefit. A reading of the instruction, however, shows that it is not obnoxious to this criticism, as that question is plainly left by the instruction to the jury, to be determined from the evidence.

We are of opinion that under the proof, appellant was clearly liable for funeral benefits to the amount found by the verdict, and as appellee paid the same and no question is raised as to her right to bring suit, the judgment will be affirmed.

Judgment affirmed.


text:
    Interstate Contracting & Supply Company, Appellant, v. Belleville Savings Bank et al., Appellees.
    1. Mechanics’ liens, § 196

      —when evidence sufficient to sustain finding of agreement to waive liens. In a bill by subcontractors to enforce mechanics’ liens, evidence held sufficient to sustain a finding that before the making of the original contract with the owner, contractor verbally agreed to waive all liens for labor and materials.
    2. Mechanics’ liens, § 196

      —when evidence sustains finding that original contract was oral and lien was waived. In a bill by subcontractors to enforce mechanics’ liens, evidence held sufficient to sustain a finding that the original contract was oral and that the right to a lien thereunder was specifically waived by contractor.
    3. Mechanics’ liens, § 38

      —how question whether contract oral or written affects right to lien. Under both the Mechanics’ Liens Act (J. & A. i 7139 et seq.) and the amendments thereof enacted in 1913, no distinction is made between oral and written contracts as to the right to a lien thereon.
    4. Mechanics’ liens, § 38

      —what constitutes verbal contract under act. Under the Mechanics’ Liens Act (J. & A. If 7139 et seq.),
      a contract is in law deemed wholly oral or verbal where it is partly oral and partly in writing.
    5. Mechanics’ liens, § 62

      —when subcontractor not entitled to lien. Under the Mechanics’ Liens Act (J. & A. If 7139 et seq.), a subcontractor’s lien cannot be allowed if the original contract does not create a lien.
    6. Mechanics’ liens,- § 62

      —when subcontractor not entitled to lien by original contract. Under the Mechanics’ Liens Act (J. & A. If 7139 et seq.), a subcontractor is not entitled to a lien where the original contract provides that there shall be no liens upon property for labor or material.
    7. Mechanics’ liens, §, 4

      —to what extent act unconstitutional. In so far as section 21 of the Mechanics’ Liens Act (J. & A. 1f 7159) attempts to give a subcontractor a lien not dependent on the original contract, such section is unconstitutional.
    8. Mechanics’ liens, § 136

      —what is effect of waiver in original contract on right of subcontractor to lien. Under, the Mechanics’ Liens Act (J. & A. 1f 7139 et seq.), a subcontractor is not entitled to a lien where such lien has been waived and released by the original contractor.
    9. Mechanics’ liens, § 135

      —when statute requiring recording of contract waiving liens to render it effective as evidence against subcontractor inapplicable. The Act enacted in 1913 amending section 21 of the Mechanics’ Liens Act (J. & A. If 7159), which amendment requires that the contract waiving liens must be filed in the office of the recorder of deeds to make it effective as evidence against a subcontractor who has no actual knowledge of the waiver, does not apply where the original contract under which the lien is sought was entered into prior to the enactment of the amendment.
    10. Mechanics’ liens, § 68

      —when notice by subcontractor to owner of claim for lien given too late. The notice required by section 24 of the Mechanics’ Liens Act (J. & A. ff 7162), to be given by subcontractors claiming a lien to the owner of the property sought to be subjected to a lien, comes too late to preserve the lien where such notice is given after the contractor has been adjudicated a bankrupt, although such notice was given within the time required by the statute.
    11. Statutes, § 27

      —how construed when in derogation of common rights. Statutes in derogation of common rights must be strictly construed.
    12. Mechanics’ liens, § 66

      —what are rights of subcontractors failing to give timely notice of liens. Where subcontractors lose their liens by delaying to give the notice required by section 24 of the Mechanics’ Liens Act (J. & A. V 7162) until after the contractor has been adjudicated a bankrupt, such subcontractors can only share the proceeds of the estate of the bankrupt with other creditors.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    D. E. Keefe and C. P. Wise, for appellant Samuel B. McPheeters.
    F. W. Merrills, for appellant Cincinnati Mfg. Co.
    Turner & Holder, for appellee Belleville Savings Bank.
    Barthel, Farmer & Klingel, for appellee Samuel B. McPheeters.

      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. Presiding Justice Higbee

delivered the opinion of the court.

The Belleville Savings Bank, a banking corporation hereinafter designated as the bank, doing business in Belleville, Illinois, proposed building a new bank building in that city, and in pursuance thereof asked for bids for work and material to be used in its erection and furnishing. On July 29, 1912, the St. Louis Bank Fixture Company of St. Louis, Missouri, submitted to it a written proposal to erect and furnish certain parts of the building for $9,489. This offer was accepted and parts of the work so contracted for were thereafter sublet by said Bank Fixture Company to certain subcontractors, one of which, the Interstate Contracting and Supply Company, was to furnish all the marble used in the building for $1,950, with extras at the market price. Another, the Cincinnati Manufacturing Company, agreed to furnish the bronze, metal work and steel cage work for $908.80 and still another, the Van Kannel Eevolving Door Company, was to furnish and deliver a revolving door for the hank for $665. The work and materials so contracted for were furnished and used in the bank building, and thereafter notice was served 'on the bank by the respective subcontractors, claiming liens therefor. On July 16, 1913, the contractor, the Bank Fixture Company, was duly adjudged a bankrupt in the United States Court for the Eastern District of Missouri. On July 17, 1913, the Interstate Contracting and Supply Company completed its contract and two days later served the notice of lien on the bank above referred to, claiming the amount of its contract price, and in addition thereto $96.82 for extras, and on July 30, 1913, filed a bill for mechanic’s lien in the Circuit Court of St. Clair county, making as defendants thereto, the bank, the contractor and the other subcontractors above mentioned. The contractor answered setting up the bankruptcy proceedings, and that Samuel B. McPhéeters had been appointed trustee therein, and afterwards said trustee was substituted for said contractor as defendant. The two other subcontractors filed answers, setting up their claims for the amount of their contracts and averring that they had given proper notice to the savings bank. The hank, in its answer, set up and claimed as a complete defense to the action that a waiver of any lien for labor or materials was made by the contractor at the time the contract was entered into. It also further answered saying, that it had paid to the Bank Fixture Company, on account of said contract, the sum of $7,477; that on the 18th day of July, 1913, before the hank received notice of any subcontractor’s lien, the Bank Fixture Company was thrown into bankruptcy and was insolvent, and one Samuel B. McPheeters was appointed trustee in bankruptcy, and that the balance, $2,012, due from the bank to said Bank Fixture Company, became due and payable to the trustee of said company.

The cause was referred to the master to take the proofs and report the same and his conclusions. In his report he found as matters of fact, among other things, that the subcontractors furnished the work and material contracted for by them and that they had received nothing therefor; that they had served their respective notices of liens in apt time; that there was still due from the bank to the contractor $2,012, and that the contractor by oral agreement at the time of the contract had specifically waived any right to the lien. He also found as matters of law that the amendment to section 21 of the Mechanics’ Liens Law of 1913 (J. & A. If 7159) providing: “If the legal effect of any contract between the owner and contractor is that no lien or claim may be filed or maintained by any one, such provision shall be binding; but the only admissible evidence thereof as against a subcontractor or material man, shall be proof of actual notice thereof to him before any labor or material is furnished by him; or proof that a duly written and signed stipulation or agreement to that effect has been filed in the office of the recorder of deeds, etc., ’ ’ is not binding on the bank as to a waiver made before the enactment of said law; that on account of such waiver, none of the subcontractors can maintain their lien and that the bill should be dismissed. Objections were filed to the report, which were overruled by the master and exceptions filed thereto in the court. Upon the hearing the court overruled the exceptions, approved the report and entered an order dismissing the bill at the cost of the complainant. From the decree so entered the Interstate Contracting and Supply Company and the Cincinnati Manufacturing Company appealed, seeking to reverse the same on the ground that there was no sufficient proof of waiver by the contractor, that the court erred in holding said amendment to section 21 of the Mechanics’ Liens Law did not apply to such contract of waiver if proven, and in not holding the $2,012 still due on the contract should be paid pro rata among the subcontractors.

• It is the contention of appellants that the proof relied on by the Belleville Savings Bank to show that there was an oral waiver of right of lien under the Mechanics’ Liens Law of the State, made by the Bank Fixture Company at the time the original contract was entered into, is insufficient to establish such waiver. We find from the .record that Mr. Turner, the president of the company, testified that it was verbally agreed that the “St. Louis Bank Fixture Company would waive any right to any lien it might have under the Mechanic’s Lien Law of this State for payment of any material or labor furnished on that bank building.” This agreement on the part of the Bank Fixture Company referred to statements made by Mr. Ruekauff; the president of the company, and it was stipulated, between counsel for parties concerned, that if Mr. Ruekauff were present he would testify as to the waiver of lien and making the contract the same as Mr. Turner did. Mr. Abend, one of the directors of the bank and a member of the building committee, testified that he was present when the contract was made, and that Mr. Ruekauff said he would waive all right to any lien for labor or material Mr. Hilgard, the cashier of the bank, also stated: “We had no written contract and accepted this bid after Mr. Ruekauff said he would waive all liens as to material and labor. This was before any materials had been furnished or labor done, regarding these fixtures.” Mr. Ceil, also a director of the hank and a member of the building committee, testified that “Mr. Turner asked Mr. Ruekauff whether he would waive' all liens the same as the other contractors had and Mr. Ruekauff stated ‘certainly’ also that before the contract was accepted, Mr. Ruekauff was asked whether he was willing to waive all liens, and he said “Yes sir.” Appellant did not seek to contradict the statement of these witnesses upon this subject and we think they were sufficient to sustain the finding of the master, which was also approved by the court, that “before the acceptance of this proposition the Fixture Company and Euekauff had verbally agreed to waive all right to any lien for labor and material that might be furnished for this building.” Also the finding upon the same subject that the testimony conclusively established ‘ ‘ that the contract of the bank with the Fixture Company was an oral one, and that the right to any claim for lien was specifically waived. ’ ’

In Stepina v. Conklin Lumber Co., 134 Ill. App. 173, it was held “under the Mechanic’s Lien Act of 1903, no distinction is made between oral and written contracts. The rights to a lien under them are the same, ’ ’ and there is no reason why the same rule should not apply to the law as it now stands. In Rittenhouse & Embree Co. v. Barry, 98 Ill. App. 548, it was held in a mechanic’s lien case that where the contract was partly in writing and partly oral, it is as a whole in law, an oral or verbal contract. In Von Platen v. Winterbotham, 203 Ill. 198, the doctrine was laid down that if the original contract did not create a mechanic’s lien under the statute, a subcontractor’s lien could not be allowed. Section. 21 of the Mechanics’ Liens Law of 1903, (J. & A. ]]" 7159) attempted to give the subcontractor a lien which should not be dependent upon the original contract, but since its enactment it has been held by our Supreme Court that the lien of a subcontractor can exist only by virtue of the original contract, and that where the original contract provides there shall not be any liens upon property for labor or material, the subcontractor is not entitled to any lien; also that said section, in so far as it attempts to give the subcontractor such a lien, is unconstitutional. Kelly v. Johnson, 251 Ill. 135; Cameron Co. v. Geseke, 251 Ill. 402. If therefore the rule as laid down in these authorities is to be followed, it would appear that appellants, as subcontractors, would not under the proofs in this case be entitled to a mechanic’s lien under the law for the reason that such lien had been waived and released by the original contractor. It is the contention of appellant, however, that the amendment to section 21 of the Mechanics’ Liens Law of 1913, which is above set forth and which requires that the contract waiving the lien must be filed in the office of the recorder of deeds to make it effective as proof against the subcontractor, where he has no actual knowledge of such waiver, applies to this case and that by reason thereof said amended pleas cannot tal e advantage of such waiver in this case as against appellant. The original contract in this case, however, was entered into prior to the passage of this amendment, and the law, in force at the time when the contract was made, must be held to govern as to the right to a lien. Eisendrath Co. v. Gebhardt, 222 Ill. 113.

It would appear there was another reason why appellants in this case, as subcontractors, would not be entitled to the lien sought by them. It is provided in section 24 of the Mechanics’ Liens Law (J. & A. 7162) as follows: ‘‘Subcontractors, or party furnishing labor or materials, may at any time after making his contract with the contractor, and shall within sixty (60) days after the completion thereof, or, if extra or additional work or material is delivered thereafter, within sixty (60) days after the date of completion of such extra or additional work or final delivery of such extra or additional material, cause a written notice of his claim and the amount due or to become due thereunder, to be personally served on the owner or his agent or architect, or the superintendent having charge of the building or improvement: Provided, such notice shall not be necessary when the sworn statement of the contractor or subcontractor provided for herein shall serve to give the owner notice of the amount due and to whom due.” Appellant served the notice re-

quired by this statute, but prior to the service of the same the St. Louis Bank Fixture Company, the original contractor, on July 16, 1913, was adjudged a bankrupt and Samuel B. McPheeters was appointed its trustee. The service of these notices was therefore too late under the holding of the Supreme Court of this State. In the case of Ryerson & Son v. Smith, 152 Ill. 641, Byerson and Son were subcontractors under the Porter Boiler Manufacturing Company, who contracted to erect a stand pipe and steam drums for the Chicago Bock Island and Pacific Bailroad Company and the World’s Columbian Exposition Company, and before the completion of the subcontract, Byerson & Son filed notice of lien. Prior to" the filing of such notice the contractor became insolvent and made a general deed of assignment for the benefit of its creditors to William P. Smith, who, under the instruction of the County Court, proceeded to finish the work. At the completion of the subcontractor’s contract, the railroad and exposition companies refused to pay the amount due. It was thereafter agreed the money should be deposited with the assignee and the subcontractors filed their petition for it in the County Court. The assignee filed a demurrer to the petition, which was sustained by the court and the petition dismissed. On appeal to the Appellate Court [51 Ill. App. 270], the order of the County Court was affirmed, and on further appeal the Supreme Court affirmed the judgment of the Appellate Court, stating in the opinion: “It is hardly necessary to say, that statutes in derogation of common right should be strictly construed. Plaintiffs in error (Ryerson & Son) could have had no liens .until service of notices as required by section 30 (Shaw v. Chicago Sash, etc., Mfg. Co., 144 Ill. 520; Butler v. Gain, 128 id. 23). Prior, however, to such service of notices, the Porter Boiler Manufacturing Company made an assignment for the benefit of its creditors. The notices, therefore, were insufficient to create liens; and especially is this so, since it does not appear that anything was dne from either the Chicago, Bock Island and Pacific Bailroad Company or the World’s Columbian Exposition Company at the date of the assignment. It is true that the assignee took the insolvent’s estate subject to existing liens and equities, but at the time of the assignment no liens or equities existed in favor of plaintiffs in error. The persons intended to be benefited by the statute must comply strictly with all its requirements before they can have any lien.” The notice required of a subcontractor by section 30 referred to in the case quoted from was in some respects similar, and the requirement in no wise stronger than that provided-for by section 24 under the present law above quoted.

By their failure to serve their notice of lien prior to the contractor’s assignment in bankruptcy, the subcontractors lost their right to enforce a mechanic’s lien against the. bank property and can only share with other creditors the proceeds of the bankrupt estate. The decree of the court below dismissing the bill filed in this ease will be affirmed.

Decree affirmed.


text:
    Rolla M. Treece, Appellee, v. Reinhart-Smith Grocer Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. Carl E. Sheldon, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Rolla. M. Treece, plaintiff, against the Reinhart-Smith Grocer Company, defendant, in the Circuit Court of Williamson county, to recover both actual and punitive damages for a wrongful attachment of personal property alleged to have been caused by defendant. The action was tried by jury which found a verdict for plaintiff for $430. The court required a remittitur of $180. From a judgment for plaintiff for $250, defendant appeals.
    It appeared that J. W. Bradley owned a grocery store in Herrin, Illinois, the stock being worth about $1500, and on February 8, 1913, traded it to Rolla M. Treece, defendant taking in exchange cash and a house and two lots of land. At that time Bradley was indebted to defendant in the sum of $475.94 for goods sold him. The trade was made on 'Saturday and defendant learned of the transfer by one of its salesmen. On the following Monday defendant sent W. E. Welge its credit man and treasurer from Marion, where it carried on a wholesale grocery store, to Herrin to try to collect the account. When Welge arrived at Herrin he found plaintiff in possession of the stock and that Bradley had gone. After talking with plaintiff, who had been a customer of defendant for a number of years, he returned to Marion. The next day he returned to Herrin in company with Walter W. Scaggs, a young attorney who was occasionally employed by it to collect accounts but was not its general attorney. The two saw plaintiff at the store and the accounts do not agree as to what occurred. Plaintiff stated that Welge said to him, “I brought Mr. Scaggs with me, you can fix this matter up,” and further said, ‘ ‘you.can insure these accounts or agree to pay them, or see that they are paid and we won’t attach them; if .you do not, we will attach the goods and we will make what we can out of the goods”; that in the course of the conversation Scaggs said, “Eolia, you got yourself in bad; you have yourself in where you cannot pay out. If you keep out of the penitentiary you will do well.” Welge and Scaggs denied making these statements and testified that they went there to find out about the trade and see if there was any way the account could be collected, but Scaggs admitted that he said, ‘ ‘ surely this is not a fraudulent transaction; if it is, these goods are liable to attachment.” Welge and Scaggs ascertained what Bradley had received, and plaintiff agreed to furnish them a description of the house and lots that evening. They also learned that Bradley had certain household goods in Herrin. They afterwards called on A. D. Morgan, an attorney, and then returned to Marion, where a writ of attachment was sworn out against Bradley by Welge, the papers being prepared by Scaggs. The writ was delivered that night to the office deputy sheriff by Scaggs, who instructed him to levy it on the household goods of J. W. Bradley. The office deputy delivered it to the sheriff, who sent it to A. Gas away at Herrin, the deputy sheriff there. Next morning the sheriff went to Herrin and in company with Gas away went to plaintiff’s store about eight o’clock, levied on his stock, obtained the keys of the store from plaintiff, and locked it up after putting a notice of the levy on the door. The sheriff then returned to Marion and later saw Scaggs, and after talking to him, telephoned Gasaway to take down the" notice, release the goods and give np the keys. Gasaway accordingly took down the notice and attempted to deliver the keys, bnt found plaintiff had left the city and he was unable to deliver them until nearly noon the next day, when plaintiff returned. Plaintiff testified that during the time his store was closed, certain fruits and vegetables froze and the rats destroyed some meal by gnawing through the sacks containing it, and that his damages amounted to $30 or'$40. The deputy sheriff testified that Scaggs called him up over the telephone the evening before the levy was made and told him to levy on the stock of goods; that the next morning Scaggs called him again and when informed the stock of goods had been levied upon, stated that was what he wanted done. On cross-examination, however, he stated that somebody called him up in the evening over the telephone, and he understood it was Mr. Scaggs and he assumed the second conversation was also with him. Scaggs testified he did not talk to the deputy sheriff either before or after the levy, until the afternoon of the day when the levy was made, and did not tell him before or after the levy that he wanted the stock levied on; that when he learned from the sheriff the levy had been made he ordered the goods released.
    Defendant attempted to prove by Welge, Scaggs and Morgan that when they were in consultation in Morgan’s office, Welge told Scaggs to have the writ of attachment levied on Bradley’s household goods and not to levy on the stock, but the court refused to admit this testimony. Defendant also offered to prove by "several witnesses that Welge had given Scaggs positive instructions immediately before the issuance of the attachment writ, to have the same levied on the household goods of Bradley and the court excluded this testimony.
    Denison & Spiller, for appellant.

      Abstract of the Decision.
    1. Principal and agent, § 149

      —when principal not liable for tortious act of agent. If an agent commits a tort by an act in excess of his authority, the principal is not liable although the tortious act was done for the supposed benefit of the principal.
    2. Principal and agent, § 151

      —when principal not liable for malicious prosecution of suit by agent. Where an agent has authority to bring suit on behalf of a principal, the principal is not liable for the malicious act of the agent in setting in motion the criminal process of the State, where such principal could derive no benefit from the legitimate result of invoking criminal process.
    3. Attorney and client, § 61

      —what attorney employed to sue and collect debt without express authority may do. An attorney at law employed to sue for and collect a debt without express or specific authority cannot lawfully do more than to obtain judgment, order execution, receive and receipt for the money collected on such execution.
    4. Attorney and client, § 83

      —when attorney may not compromise claim nor receive anything but money in satisfaction. An attorney at law employed to sue for and collect a debt without express or specific authority cannot take less than the amount due in satisfaction of the debt, nor receive anything except money in satisfaction.
    5. Attorney and client, § 61

      —implied authority of attorney. An attorney at law has no implied authority.
    6. Attorney and client, § 14

      —when client liable for acts of attorney in collecting debt. A client who employs an attorney at law generally to collect a debt is bound to answer for the acts of the attorney which are necessary for the collection of such debts.
    7. Attorney and client, § 14

      —when client not liable for wrongful acts of attorney in collecting' debt. A client who employs an attorney at law to collect a debt and gives such attorney specific instructions as to the acts to be done is not liable for the wrongful acts of such attorney in collecting such debt which are contrary to his instructions and are not necessary for such collection.
    8. Attorney and client, § 14

      —when attorney personally liable for wrongful acts in collecting debt. An attorney at law who is employed to collect a debt and receives specific instructions as to the acts to be done is personally liable for any wrongful acts done contrary to such instructions or not necessary for the collection of such debt.

      Neely, Gallimore, Cook & Potter, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

9. Trespass, § 48 —when evidence as to instructions to attorney to attach goods other than those actually attached improperly excluded. In an action of trespass to recover for injury sustained as a result of a wrongful attachment of plaintiff’s personal property in a suit against a third person alleged by defendant to have conveyed such property to plaintiff fraudulently, where there was evidence that the officer making the attachment received telephonic instructions from one supposed to be defendant’s attorney and which directed such officer to make the attachment in question, evidence that the attorney in question was specifically instructed by defendant to make an attachment of goods other than those actually attached held improperly excluded, such evidence being competent as tending to show the extent of the authority actually conferred on such attorney by defendant.

10. Trespass, § 58 —when evidence that client instructed attorney to make attachment in different way competent on question of damages. In an action of trespass to recover for injury sustained as the result of a wrongful attachment of plaintiff’s personal property in an action against a third party, and where there was evidence that the attachment was made by direction of defendant’s attorney, plaintiff claiming punitive as well as actual damages, evidence that defendant specifically instructed such attorney to make an attachment different from that actually made, held competent on the question of punitive damages.