text:
    Russell Brownell, by his Guardian, Appellee, v. Village of Antioch, Appellant.
    Gen. No. 6,681.
    1. Municipal corporations, § 1111*—when declaration in personal injury action against village is sufficient after verdict. After a verdict for the plaintiff, in an action against a village to recover for personal injuries, it will be held on appeal that the averment in the declaration that due notice of said injury and of plaintiff’s claim resulting therefrom was given to said village as required by law, is sufficient, even assuming that it inadequately alleged notice in the premises.
    2. Municipal corporations, § 1111

      —when declaration in personal injury action against village is good after verdict. In an action against a village to recover for personal injuries received by a child while playing with a gasoline engine standing in the street, a declaration alleging that the engine had been in such specified street for more than 3 months before the accident; that, with the knowledge and consent of the village authorities, children were daily permitted to congregate and play on such street and were attracted by the engine, describing in detail how the engine’s cogwheels could be moved by turning the flywheel, and alleging that by reason thereof the engine attracted the children and caused them to turn the flywheel and play with the engine; that the engine was dangerous to children and was unguarded; that defendant well knew the premises, and disregarded its duty and negligently permitted the engine to remain in such street for a year or more, held good, after verdict for plaintiff as against the contention that it did not allege that defendant knew that the engine was in the street and that it was attractive to children.
    3. Municipal corporations, § 1225*—when statute requiring notice of personal injury complied with. The statute requiring one about to bring an action against a municipality on account of any personal injury to file in 6 months from the date of the injury, a statement concerning the accident in the office of the city attorney, if there is a city attorney, and also in the office of the city clerk, is sufficiently complied with by one who, having been injured in the street of village having no city or village attorney, and the office of village clerk therein having no incumbent and there being no office of village clerk, caused a proper notice to be served upon the village president, each of the trustees and the temporary secretary, delivering it to the latter at the only office which he had, and requesting him to file it in his office, and also causing such notice to be served on the attorney employed by the village, as he was informed by trustees of the village, though no notice was served- on other attorneys representing the village in a pending suit, as to which employment such person was not informed.
    4. Municipal corporations, § 1224*—who need not comply with statute requiring notice of personal injury. A child a few days short of 5 years old is not required to comply with the provisions of the statute (Hurd’s St. 1917, p. 1663, J. & A. jf 6190) requiring one about to bring an action against a municipality for damages on account of personal injury to serve notice within 6 months of the date of such injury on certain officers.
    5. Municipal corporations, § 1098*—when evidence sufficient to show that place where gasoline engine stood was part of street. In an action against a village to recover for personal injuries alleged to have been received by a child from a gasoline engine standing in a street of the village, evidence held to show that the place where the engine stood was part of a street of the village.
    6. Municipal corporations, § 963*—when gasoline engine in street is attractive nuisance. A gasoline engine which stood in a street near where children congregated and the cogwheels of which could be caused to turn by the children’s turning the flywheel, held to be attractive to children of tender years.
    7. Municipal 'corporations, § 992

      —what sufficient to put village authorities on notice of danger of gasoline engine as attractive nuisance. That the officers of a municipality frequently passed along a street in which a gasoline engine, of such size that they could not have failed to have noticed it, had been left standing for more than 3 months, that children often played around it and had frequently been warned away from it because of danger, is sufficient to put the village authorities on notice of the danger.
    8. Negligence, § 96*—as not imputed to child under 5 years of age. Negligence is not imputable to a child less than 5 years of age.
    9. Negligence, §§ 106, Ul*^-when negligence of parents and brother not chargeable to child. In an action by a child less than 5 years old to recover for personal injuries, the negligence of his parents and brother is not chargeable to him.
    10. Municipal corporations, § 963*—when municipality liable for injuries caused by attractive nuisance in streets. A municipal corporation is liable for injuries caused by an attractive nuisance maintained or permitted by it in its streets.
    11. Municipal corporations, § 963*—when city liable for injuries caused by attractive nuisance. An obstruction allowed to remain in the street, though not dangerous to1 public travel, yet may be attractive to children of tender age and dangerous to them, and in such case the city will be liable for injuries caused thereby, if the attractive nuisance has been in the street for so long a time that the officers of the city, in the exercise of reasonable care, should have ascertained its existence there and that it was dangerous to children of tender years.
    12. Appear and error, § 1691*—when appellant cannot complain of admission of evidence. One cannot complain of the admission of evidence where another witness testified as to the same matter without objection and the party complaining also brought out evidence in regard thereto.
    13. Appeal and error, § 1698a*—when error in refusing instructions is waived. Errors in refusing instructions not pointed out in the brief and not argued are regarded as waived.
    14. Instructions, § 138*—when refusal of instructions is not reversible error. Refusal to give instructions upon principles covered in other instructions is not reversible error.
    15. Damages, § 133*—when damages for loss of fingers not excessive. A verdict for $1,716.75 is not excessive where plaintiff, a child less than 5 years old, lost one or two fingers of his right hand to the first joint.
    16. Evidence, § 44

      —when pain and suffering inferred. The law infers pain and suffering from an injury by which two fingers are lost to the first joint. "...
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.
    Rehearing denied November 21, 1919.
    Cooke, Pope-& Pope, for appellant.
    J. K. Orvis, for appellee; Paul MacGueein, of counsel.

      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 sind 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.

Appellee, a child of tender years, was injured on August 21, 1914, while he and other children were playing with a gasoline engine said to have been located in a street in the Village of Antioch. He brought suit against the Village of Antioch to recover damages for such injury. He filed a declaration and defendant demurred thereto. The demurrer was overruled and defendant pleaded the general issue. On a trial, plaintiff had a verdict and a judgment for $1,716.75, and this is an appeal by defendant therefrom.

The demurrer was special. One ground was that the notice of the injury and’of plaintiff’s claim did not appear from the declaration to be such a notice as is required by law to be given, and also that the authority of the guardian to bring the suit is not alleged. As to notice, the declaration averred that due notice of said injury and of plaintiff’s claim resulting therefrom was given to the said village as required by law. Assuming that that was an inadequate allegation of notice, still defendant did not abide by its demurrer, but pleaded over, and we are of the opinion that after verdict the allegation in the declaration on that subject is sufficient. Western Stone Co. v. Whalen, 151 Ill. 472; Cribben v. Callaghan, 156 Ill. 549; Gerke v. Fancher, 158 Ill. 375; Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 535; 1 Chitty’s PI. 673. The issue of letters of guardianship was sufficiently averred and was proven. The declaration is now attacked on grounds not set up in the special demurrer. It is now alleged that it will not support a judgment because it does not state that defendant knew the engine was in the street and knew that it was attractive to children of tender years. The declaration alleges that said engine had been in said street called Eailroad street or Depot street for a long time prior to the month of August, 1914, to wit, for more than 3 months; that, with the knowledge and consent of the officers and authorities of the village, children were permitted to daily congregate and play on said street and were attracted by said engine; and the declaration described in detail how the cogwheels of said engine could be moved by turning the flywheel, and that on that account the machine attracted the curiosity of children and caused them to turn the flywheel and play with the engine; and* it alleged that the engine was dangerous to children and was unguarded; and that the defendant well knew the premises, and disregarded its duty, and negligently permitted said engine to be and remain in said public street for a long period of time, to wit, for one year or more. We are of the opinion that these allegations, not questioned by the special demurrer, are good after verdict.

The statute required the person about to bring an action against a municipality on account of any personal injury, within 6 months from the date of the injury, to file in the office of the city attorney, if there is a city attorney, and also in the office of the city clerk, a statement setting forth certain things concerning the accident. This village had no city or village attorney, and there was therefore no office of a city or village attorney where it could be filed. The village clerk was dead and his place had not been supplied, except that one E. E. Brook acted as temporary secretary whenever the village trustees held a meeting. There was no office" of village clerk in which notice could be filed. Plaintiff caused a proper notice to be served upon the president of the village and unon said temporary secretary and upon each of the village trustees and requested the secretary pro tern to file it in his office, and the place where it was handed to him was at the bank, which was the only office he had. Plaintiff’s attorney also inquired of some of the trustees Xvho was the last attorney the village had employed and learned that it was E. L. Clarke of Waukegan in that county, and notice was therefore served upon him. At the trial it turned out that there had been pending in the Circuit Court of Lake county for a number of years a suit against the village, in which Cooke, Pope & Pope appeared as attorneys for the village. This fact was unknown to plaintiff’s attornéy and no notice was served upon that firm. There is nothing to show that either of that firm held the office of village attorney. We are of the opinion that plaintiff’s counsel did all that they could do to comply with this statute, and that the notice the}7 served upon the president and trustees and acting clerk should be deemed sufficient, if notice was required. But, plaintiff was born August 27, 1909, and this injury occurred August 21, 1914, so that plaintiff was then 4 years, 11 months, and 24 days old, and we are of opinion that, under McDonald v. City of Spring Valley, 285 Ill. 52, this plaintiff of tender years was not required to comply with that statute in regard to notice.

Appellant contends that the proof is insufficient to show that this engine stood in the street. Upon this traveled highway there were hydrants and water mains and sidewalks put in by the village. The villag’e marshall had cleaned the street and the sidewalks. It was the only street by which the people could reach the railway station. The village board and officers traveled on that street. People traveled there every day. . The street was graveled by the village authorities. There is a picture of the place in question in evidence, and it shows an ordinary village street with a sidewalk on each side, and the engine was stationed between these two sidewalks—in other words, in the central part of the street. It Was directly opposite the village school. We are clear that it is shown that this was a street and that where this engine stood was a part of the street.

The injury happened in this way: School was not in session in August, but the school children gathered there at that time daily and played about the grounds and played in the street in front of the schoolhouse. The children played often about this engine, and a part of them would start the flywheel which set the mechanism in motion. At another part of the machine were cogwheels which enmeshed, and while some children were turning the wheel other children often put hay or straw into the cogs to see them drawn in, and this little fellow was engaged in that business when the fingers of his right hand were caught and the ends of two of them were injured so that two of them had to be amputated at the first joint. This was a child of tender years. The evidence makes it very clear that this machine was attractive to children of tender years. It had been repaired by the owner of a neighboring shop and had been set out into the street for the owner to take it away, and it had been there for a time which was in dispute, but it was more than 3 months. The city officers frequently passed along this street, and this was so large an object that they could not fail to see it, and the fact that the children often played around it and had frequently been warned away from it because of danger was sufficient to put the village authorities upon notice of the danger. They did nothing to remedy it. It is suggested that the parents of plaintiff were negligent in permitting him to play about this machine, and an older brother of plaintiff sometimes saw him playing there. Negligence is not imputable to this child less than 5 years old, nor is the negligence of his parents or brother chargeable to him where he brings the action. Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, on pages 420 to 427; Richardson v. Nelson, 221 Ill. 254; Perryman v. Chicago City Ry. Co., 242 Ill. 269; Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424.

A municipal corporation is liable for an attractive nuisance maintained by it (City of Pekin v. McMahon, 154 Ill. 149) or permitted in its streets. The latter proposition was held by us in Linnberg v. City of Rock Island, 136 Ill. App. 495, and in the same case when again before us in 157 Ill. App. 527, where a judgment in favor of the administrator of the estate of such a child was sustained. The attractive nuisance there was inside of a street when the child went upon it. It was upon the face of a pond and children pushed it away from the street and the child was afterwards drowned some distance from the street. That report shows that a certiorari was denied by the Supreme Court. Of course, no two cases are exactly alike, but we think these authorities are sufficient to show that in this State an obstruction allowed to remain in the street, though not dangerous to public travel, yet may be attractive to children of tender age, and may be dangerous to them, and that in such case the city will be liable if the attractive nuisance has been in the street for so long a time that the officers of the city in the exercise of reasonable care should have ascertained its existence there and that it is dangerous to children of tender years. In McKim v. City of Philadelphia, 217 Pa. 243, 19 L. R. A. (N. S.) 506, it is held that city streets are required to be kept free of dangerous impediments, and there is a note there on obstructions to streets by things foreign to the street. In Elam v. City of Mt. Sterling, 132 Ky. 657, 20 L. R. A. (N. S.) 512, there is a very extensive note on this particular subject covering about 250 pages, and the storage of vehicles in streets is covered on pages 612 and 613.

Appellee introduced in evidence a picture of the street and of the engine (taken after this injury) which showed a boy standing on a spoke of the flywheel, and this raised a question how the boy could stand on the wheel.without its turning around, and plaintiff’s counsel asked the witness why the wheel did not turn around when he stood on it at the time the picture was taken, and he answered: 1 ‘ They had stopped it and fixed it so it wouldn’t turn.” Defendant’s counsel moved to strike out the answer as seeking to establish negligence by proof of what occurred after the injury, and that motion was denied, and it is urged that that ruling was reversible error. It was not stated or suggested that defendant had anything to do with tightening up the machine, and the question was only asked by way of explaining that feature of the picture, but the fact that the 'machine could be tightened so that the wheel could not turn had been proved by another witness some time before this witness was examined, and that without objection. It was also the subject of subsequent testimony drawn out on a thorough examination by defendant’s counsel. The ruling of the court was not reversible error.

Appellant’s brief says that the rulings of the court in refusing instructions for defendant were erroneous. This point is not argued. The supposed errors are not pointed out in the brief and we regard that point as waived. The court gave at the appellant’s request all the instructions to which it was entitled. The instructions requested by appellant which the court refused were most of them lengthy, involved and argumentative. Some of them stated correct rules of law which would have been important if this had been a case of a traveler on the highway injured by an obstruction in the street, hut had no bearing on the case stated in the declaration, and to which the proofs were addressed. If anything can be found in any of these refused instructions which was proper and applicable to this case, we think it sufficiently covered by the given instructions.

It is argued that the verdict was excessive. Plaintiff lost at least one finger of his right hand to the first joint, and as we understand the attending physician, plaintiff lost two fingers to that joint. It is obvious that this disables him for many employments in life. He was too young to be able to describe his pain and suffering, but the law infers pain and suffering from such an injury, and no direct proof thereof is required. Pratt v. Davis, 224 Ill. 300. We are of opinion that the damages are not excessive.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Charles W. Kuhlmeyer et al., Executors, Appellees, v. George J. Butz et al., Appellants.
    Gen. No. 6,697.
    1. - Appeal and ebbob, § 1662*—when objection to incompetency of witness is waived. When no objection is made to the incompetency of the witness in the trial court, such objection is waived and is not available on appeal.
    2. Mobtgages, § 244*—when check is not invalid as payment of interest to mortgagee’s executor. That a mortgagor, in paying interest on the mortgage, makes the check payable to the mortgagee’s widow, or bearer, governed by the fact that the income of the estate had been left to the widow for life, does not invalidate the check as a payment to the executors, who were to receive the payment as they had debts and expenses to pay from the estate.
    3. Mobtgages, § 249*—what constitutes sufficient tender of ‘interest. Where it is shown that it has been the custom between a mortgagor and a mortgagee for several years for the mortgagor to pay the interest by leaving his check therfor at a certain bank for the mortgagee, such evidence is sufficient to show a verbal contract to pay the interest in such manner at such place, or at least to prevent the mortgagee from being permitted in equity to claim that a tender of succeeding interest at the same place and in the same manner was not a valid and sufficient tender, without his having first notified the mortgagor that he would no longer accept payment there and in that manner, and by depositing there a check on that bank for the amount of the interest, payable to the mortgagee’s widow, or bearer, to meet which check he had on deposit there sufficient available funds, the mortgagor makes sufficient tender of the interest.
    4. ■ Mobtgages, § 249

      —when valid tender of interest is made and kept good. Where, pursuant to the custom practiced for several years between him and the mortgagee, the mortgagor leaves at a certain bank a check for the amount of the interest on the mortgage, payable to bearer, the mortgagee’s executor who handles his business knowing of it, and at all times keeps on deposit sufficient money to cover it, there was a valid tender made and kept good which will prevent a court of equity from declaring due for. nonpayment of such interest the note which the mortgage secures and the maintenance of a bill to foreclose the mortgage even for such interest.

      5. Bills and notes, § 240*—executors not purchasers for value. Executors to whom a note passes as a part of property of the estate are not purchasers thereof for value, but have no greater rights than the testator would if living.
    6. Forfeitures, § 7

      —when equity will enforce forfeiture. Executors of a mortgagee who resort to a court of equity to procure the acceleration of a large note, which the mortgage secures, the payment of increased interest, a solicitor’s fee and costs, are seeking to impose upon defendant mortgagor the equivalent of a forfeiture, and before it will be enforced by a court of equity, they must make out a clear case appealing to the principles of justice.
    Appeal from the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1919. Reversed and remanded with directions.
    Opinion filed October 14, 1919.
    Rehearing denied November 21, 1919.

      Certiorari

    denied by Supreme Court (making opinion final).
    Albert H. Manus and R. R. Tiffany, for appellants.
    Burrell & James, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game 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.

On March 1, 1910, George J. Butz and his wife executed a purchase money mortgage upon a farm in Stephenson county, securing their three notes, each payable to the order of Simon Kuhlmeyer; one for $1,500, due 2 years after date with interest at 5 per cent per annum, one for $1,500, due 4 years after date with like interest, and one for $10,000, due 10 years after date with interest at 4% per cent per annum. The mortgage made the interest payable annually, though the notes did not. The first and second notes were paid, and all interest prior to March 1, 1918, was paid on the $10,000 note. The mortgage contained a provision that if default in payment of any principal or interest continued for 30 days, said principal and accrued interest should immediately become due and the mortgage might be foreclosed as if all said indebtedness had matured. Simon Kuhlmeyer died in December, 1917, and bis three sons, Charles W., Samuel H. and Adam Kuhlmeyer, became executors of his will, and on April 11, 1918, they filed a bill in equity to foreclose said mortgage for the full amount of the principal and interest of said $10,000 note on the theory that one year’s interest was due on March 1, 1918; that Butz and his wife were in default for nonpayment thereof; that said default had continued for 30 days, and that thereby they had acquired tlie right to foreclose for the full amount. Butz answered, denying nonpayment of interest, denying default, denying the right to foreclose, and also setting out his version of certain transactions concerning said interest. The cause was tried and there was a decree foreclosing the mortgage for the full amount of the note and interest and for costs and for $750 solicitor fees. This is an appeal from that decree.

The note was dated at Pearl City and was payable at Pearl City by its terms, but the place of payment iii Pearl City was not stated. At -first the interest was paid at the home of Simon Kuhlmeyer in Pearl City, but on March 1, 1915, 1916 and 1917, and possibly on March 1, 1914, the interest was regularly paid by Butz drawing a check payable to Simon Kuhlmeyer for $450, and leaving the same for Kuhlmeyer at the Pearl City Bank, and Kuhlmeyer sent his daughter to receive the check and to indorse payment of the interest on the back of the note. These facts are proved by the testimony of Butz, and it is suggested that he was incompetent to testify to those matters occurring in the lifetime of Simon Kuhlmeyer. Complainants made no such objection to his testimony. At one place in his testimony complainants’ counsel said “I think his testimony is incompetent,” but that was not an objection, and no ruling of the court was asked or obtained. It frequently happens that counsel prefer to permit an incompetent witness to testify with the expectation of gaining some advantage thereby, or thereby learn some fact which that party could not otherwise obtain. When no objection is made to the incompetency of the witness in the trial court, such objection is waived, and is not therefore available in a court of appeal. Jones on Evidence (2nd Ed.) secs. 780, 796.

Butz was competent as to all matters occurring after the death of Simon Kuhlmeyer. On the morning of March 1, 1918, Butz left at the Pearl Oity Bank a check for one year’s interest, $450, payable to Mrs. Simon Kuhlmeyer, or bearer. The reason for inserting the name of Mrs. Simon Kuhlmeyer was that by the will of Simon Kuhlmeyer the income of the estate was given to her for her life. The language of the will was such, however, that it was the executors who were to receive the payment, as they had debts and expenses to pay from the estate, but that did not invalidate the check in any respect, for by sect1'on 9 of our Negotiable Instruments Law (J. & A. 7648), an instrument payable to a person named therein or bearer is payable to bearer. This check therefore was payable to bearer and was available to the executors. Butz had the money then on deposit in said bank subject to check to pay the amount of the check. Section 70 of said Negotiable Instruments Law (J. & A. TÍ 7710) provides, among other things, “if the instrument is by its terms payable a.t a special place and he (the person primarily liable) is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of pavment on his nart.” It was held in Ebert v. Arends, 193 Ill. 221, 230, that where the place of payment is omitted from a written contract, it may be shown by testimony that a place of payment was agreed upon by parole between the parties. This principle is followed and applied in Saffer v. Lambert, 111 Ill. App. 410, and in Warnock v. Fleming, 200 Ill. App. 22, and it is so held in other jurisdictions. It must be held that the practice so regularly followed for several years between Butz and Simon Kuhlmeyer either was sufficient proof of a verbal contract to pay said interest in that manner at the Pearl City Bank, or at least that Simon Kuhlmeyer could not be-permitted in equity to claim that a tender of succeeding interest at the same place and in the same manner was not a valid and sufficient tender without having first given notice to Butz that he would not any long’er accept payment in that manner at that place. In Gunby v. Ingram, 57 Wash. 97, 106 Pac. 495, 36 L. R. A. (N. S.) 232, where a similar question was presented, it was discussed as follows:

“A strictly good tender cannot be made by the offer of a cheek for the amount due. But it is well established that the creditor may waive the character of the money which is tendered by raising no objection to the payment, for the reason that it is not the character of money or specie that is called for in the obligation, or by raising some other objection which would exclude the idea of objecting on that ground. Considering the fact, which is a matter of common knowledge, that probably 90 per cent of the business of the mercantile world is now done through the medium of checks, drafts, etc., instead of by the transfer of gold and silver coin, or even of any other species of legal tender, it would be a dangerous rule to announce, and one which could easily be turned into an engine of oppression, if the tender of a payment, especially where it involved the maturing of obligations which were not then due, could not be made by check, where no question was raised as to the value of the check tendered, and especially, as in this casé, where it was show that the former payments involved in this transaction had been made by checks which were not objected to by the creditor.”

We are therefore, of the opinion that when Butz deposited that check at that bank on March 1, 1918, for the amount of the interest, and had the money there to meet it, the check payable to bearer was a. sufficient tender of the interest. The proof is that from that day until the trial that check remained there, and the executor who attended to this business knew it was there, and saw the check, and the money was always there to pay it. Under these circumstances, we are of opinion that a valid tender was made and kept good, and that a court of equity could not under such circumstances declare the principal of the note due 2 years before its maturity, nor could complainants maintain a' bill to foreclose even for the interest.

Charles Kuhimeyer, one of the executors. Butz the defendant, and Dow, assistant cashier of the bank, gave testimony as to what afterwards occurred. They do not entirely agree. The executor was inclined to combine as occurring at one time things which a subsequent examination showed necessarily occurred at different times. We have studied with care the evidence in the record and conclude that the real facts are as follows: The executor knew that the interest was to be paid at the bank. On the afternoon of March 1 he went to the bank to see if it was there. Dow handed him the check. He saw that it was payable to Mrs. Simon Kuhimeyer. He handed it back to Dow, saying, “Leave it there. I don’t want it.” While Dow does not testify that he said anything more at that time, yet subsequent testimony of the executor shows that he thought this was not a legal check because payable to Mrs. Simon Kuhimeyer. Butz left the village after depositing this check and did not return until after the bank was closed. He returned to the bank next day to see if the executor had got the interest, and, though Dow does not testify anything about a complaint by the executor of the form of the check, yet Butz testifies that Dow gave him to understand that the check was objected to because payable to Mrs. Simon Kuhlmeyer. Thereupon Butz went to the place of business of the executor and asked him what was the matter with the check and proposed to return to the bank and change the check so as to make it payable to the Simon Kuhlmeyer estate. The executor told him he could do as he liked Butz asked him if he would accept it when so changed-He said he would have to see his lawyer. Butz returned to the bank and had the check -changed so as to be payable to the Simon Kuhlmeyer estate. We are satisfied from the reading and comparison of all the evidence in the record itself that it was not until after that time that the executor conceived the idea that the check was not legal tender and that he was entitled to cash. There is testimony to the contrary, but our conclusion rests upon an examination of all the testimony. The objection which he originally made having been obviated, he could not afterwards make some other objection to the check. Moreover, in view of the course of dealing between Simon Kuhlmeyer and Butz we are of opinion that if Simon Kuhlmeyer had the right to change the arrangement, that change should have been indicated to Butz before March 1, 1918. It is to be remembered that the executors are not the purchasers of this note for value before maturity without notice. They paid nothing for the note. They stand in the shoes of Simon Kuhlmeyer and have no greater rights than he would have had if living. We hold the tender was sufficient and was kept good and' the bill should have been dismissed.

The case is to be viewed in another light. The executors are resorting to a court of equity and are seeking to impose upon defendant what is equivalent to a forfeiture, the acceleration of a large note, so as to make it payable long before it matures by its terms, and to impose upon defendant interest at 5 per cent on the decree, instead of 4% per cent on the note, and a $750 solicitor’s fee, and the costs of suit. The law does not favor forfeitures. A clear ease appealing to the principles of justice must therefore be made out before a court of equity will enforce a forfeiture. Springfield & N. E. Traction Co. v. Warrick, 249 Ill. 470; Jones & Dommersnas Co. v. Crary, 234 Ill. 26; Palmer v. Ford, 70 Ill. 369. Such a case has not been shown here. The decree therefore will be reversed and the cause remanded with directions to dismiss the bill for want of equity at the costs of the complainant, to be paid in due course of administration. A like judgment for costs will be entered against appellees here.

Reversed and remanded with directions.


author: Mr. Presiding Justice Niehaus

text:
    George W. Alderman, Executor, Appellee, v. Eleanor Dystrup et al. Mary Grace Phelps, Appellant.
    Gen. No. 6,688.
    1. Wills, § 226*—what is paramount rule of construction. It is a general and paramount rule in the construction of wills that the testator’s intent should be ascertained, and, when ascertained, must govern.
    2. Wills, § 476*—when pecuniary legacies are not chargeable against real property. Pecuniary legacies bequeathed by the testator in his will are payable from his personal estate, and are not chargeable against the real property unless expressly made a charge thereon by the will, or unless the intention to make them a charge thereon arises by necessary implication from the terms of the will.
    3. Wills, § 232*—construction in light of circumstances and surroundings. A will should be construed in the light of the circumstances and surroundings of the testator.
    4. Wills, § 480

      —when evidence competent on question whether pecuniary legacies are to be charged against realty. In ascertaining whether pecuniary legacies are to be charged against the real property, evidence as to the value and amount of the testator’s personal estate at the time the will was made is proper and competent.
    5. Wills, § 476*—when residuary devise does not make legacies charge on realty. A devise of the residue and remainder of the testator’s property, real and personal, does not result in making legacies a charge upon the real estate, if it appears from other provisions of the will that the testator intended the legacies to be paid from his personalty.
    6. "Wills, § 480*—when evidence shows testator did not intend pecuniary legacies to be charge on realty. Where the evidence shows that at the time a will was made the testator owned personalty of twice the amount of his indebtedness and the money bequests in the will, and the will contains a residuary clause leaving to a son the balance of his property, real, personal and mixed, including all moneys due testator at his decease, and the first codicil shows that he intended that the balance of his real estate undisposed of should become the property of his son, and directs the disposition of his real estate, after disposing of a certain part, to be according to the will, and in the second codicil he refers to the fact that he had given the son his homestead farm by the residuary clause, and, therein, he makes also certain legacies, in the form of annuities payable to his widow, liens and incumbrances upon the realty devised to the children, it will be held that it was not the testator’s intention that pecuniary legacies given by the will should be a charge upon the realty.
    7. Wills, § 480

      —when presumption exists that testator did not intend legacies to be charge on realty. Where a testator expressly makes certain legacies a charge upon the real estate but does not make such provision as to other legacies, to insure their payment, the inference arises that he did not think it necessary or intend that the latter should be made a charge upon his realty.
    Appeal from the Circuit Court of Will county; the Hon. Dorbanoe Dibell, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 24, 1919.
    Peter Shutts, for appellant.
    Barr, McNaughton & Barr, 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 Niehaus

delivered the opinion of the court.

•In this case a hill in equity was filed in the Circuit Court of Will county by George W. Alderman as executor of the last will and testament of Augustus S. Alderman, deceased, and in his .own right, for a construction of the last will and testament of said deceased. The beneficiaries of the will, Eleanor Dystrup, Mary Grace Phelps, Ellen Alderman and Augustus S. Alderman, were made parties defendant in the bill. The question raised by the bill in the construction of the will was whether the legacies provided therein for Eleanor Dystrup and Mary Grace Phelps were by the terms of the will made a charge on the real estate. The legacy to Eleanor Dystrup was for $6,650, and the one to Mary Grace Phelps for the sum of $8,000. At the time of the death of the testator the amount of personal estate of the deceased was insufficient to pay the debts and charges against his estate, and to pay the legacies mentioned in full. A hearing was had before the chancellor, and he interpreted the will to mean that the testator did not intend to make the legacies mentioned a charge against the real estate. A decree was rendered in conformity with such construction, and therefore that said legacies respectively abate pro rata to the extent of the amount of the deficiency of the personal estate of said deceased to pay and discharge the same in full. From this decree Mary Grace Phelps prosecutes an appeal in this court.

The testator, Augustus S. Alderman, deceased on October 9, 1910. His last will was made on the 16th of March, 1907, and is as follows:

“Will oe Augustus S. Alderman.

“Know all men by these presents, That I, Augustus S. Alderman of the • township of Dupage, Will County, Illinois, being of sound mind and memory, do make, publish and declare this to be my last will and testament, hereby declaring null and void any and all wills heretofore by me made.

“First. After the payment of all my just debts and funeral expenses, I direct and dispose of all my property and effects, in the manner following, to-wit: I give and bequeath to daughter Eleanor Dystrup, wife of Andrew Dystrup, the sum of six thousand six hundred and fifty dollars ($6,650) and also the following described real estate, to-wit: The North one hundred and thirty one (131) acres of my homestead farm, the same being the north half of the southeast quarter and fifty-one acres in the west half of the northeast quarter south of the Plainfield Road, all ip Section twenty-two, Township thirty-seven, Range ten, east of the Third P. M.

“I give and bequeath to my daughter Mary Grace Phelps, wife of Herbert Phelps, the sum of eight thousand dollars ($8,000) and the following described real estate, to-wit: The thirty acres in the southwest quarter of Section twenty-nine south of the Plainfield Road, also the west half of the northwest quarter of Section thirty-two in said township and range and containing in aH one hundred and ten (110) acres of land.

“I give and bequeath to my son George W. Aider-man all the balance of my property of which I may die seized whether real, personal or mixed, and all moneys and obligations due me at my decease, to be his sole property forever.

“I hereby direct and will that my said son shall pay to my wife Ellen Alderman the sum of three hundred dollars annually during the term of her natural life. That each of my said daughters shall pay to my said wife the sum of one hundred and fifty dollars annually during her natural life, such payments to be made and in such sums and at such times as my said wife may desire, the same to be used by her for her own comfort and support and is to be in lieu of all dower or life interest in my estate. Said payments are to be an incumbrance and lien upon the real estate hereby bequeathed to my said children, during the life of my said wife only.

“Lastly. I do hereby nominate and appoint my said son George W. Alderman to be the executor of this my last will and testament, with full power and authority to carry out my above bequests, make all deeds or other conveyances, collect all moneys due and make receipts for the same and in everything carry out these my bequests as fully and completely as I could myself do and that too without bond or any application to any court whatsoever.

“In witness whereof I have hereunto affixed my name and seal this sixteenth day of March, A. D. 1907.

Augustus S. Alderman (Seal) ” On the 19th day of July, 1909, the deceased made a codicil to his will, which is as follows:

“This codicil made to my will dated March Sixteenth, A. D. 1907, is so made to change the bequest made to my son George W. Alderman wherein I have given him all the balance of my real and personal estate to be his sole property. It is now my wish and desire and do hereby so alter and change said will as to give to my children, George W. Alderman, Eleanor wife of Andrew Dystrup and Grace wife Herbert Phelps, share and share alike, certain real estate now owned by me and located in Roscommon County and elsewhere in the State of Michigan. The said real estate is to be the joint and sole property of said children and their heirs and assigns forever. The balance of my real estate is to be divided among said children as is specified in said mil.

“Witness whereof I have hereunto set my hand and seal this nineteenth day of July, A. D. 1909.

Augustus S. Alderman (Seal) ” And on the 6th of October, 1909, another codicil was made to the will by the deceased, which is as follows:

“This codicil made to my last will and testament dated March Sixteenth A. D. 1907, is so made to change the bequest therein made to my son George W. Alderman, wherein I have given and bequeathed to him my homestead farm of four hundred acres to be his sole property.

“Ibis now my desire and wish and I do so now bequeath and give to him the said son the said homestead farm to he his property during his lifetime and at his death the same is to go to and become the sole property of his child or children, provided he should leave any such. But in case my said son shall not leave any child or children surviving him then said farm property is to go to and become the sole property of the sister or sisters of said son and their sole heirs to be their sole, property forever.

“I give and bequeath to my wife Ellen my house and lot situated in the Village of Lemont, HI. and recently purchased by me to be her sole property forever.

“The balance of my property and real estate to be divided and go to my children as provided in said will and the first codicil thereto attached.

“In witness whereof I have hereunto set my hand and seal, this sixth day of October, A. D. 1909.

Aug. S. Alderman (Seal)”

The will and codicils thereto were duly probated in the Probate Court of Will county on December 6, 1910, and the appellee, George W. Alderman, was duly appointed as executor by the Probate Court. It is a general and paramount rule in the construction of wills that the intention of the testator should be ascertained, and when this intention is ascertained it must prevail. Wardner v. Seventh Day Baptist Memorial Board, 232 Ill. 606; Showalter v. Showalter, 38 Ill. App. 208. It is also a familiar and well-settled rule of law that pecuniary legacies bequeathed by the testator in his will are payable from his personal estate and are not chargeable against the real property unless expressly made a charge upon such real estate in the will; or unless the intention to make the legacies a charge upon such real estate arises by necessary implications from the terms of the will. Jenne v. Jenne, 271 Ill. 526; Haynes v. McDonald, 252 Ill. 236; Simonsen v. Hutchinson, 231 Ill. 508; Shuld v. Wilson, 225 Ill. 336; Wentworth v. Read, 166 Ill. 139; Heslop v. Gatton, 71 Ill. 528. And in construing a will the court should do so in the light of the circumstances and surroundings of the testator. Abrahams v. Sanders, 274 Ill. 452; Strickland v. Strickland, 271 Ill. 614. In conformity with the latter rule, the court heard evidence of the testator ’s circumstances at the time of the making of the will concerning the value and amount of the personal estate which the testator possessed at that time. And this proof was competent and proper under the rule stated. From this proof it is revealed that the testator at the time he inade the will owned personal property to the extent of about $28,000, and that the aggregate of his indebtedness and money bequests amounted to only about one-half of the amount of his personal estate. It is conceded that the testator in his -will did not expressly charge the real estate with the payment of the legacies in question. So there remains for determination only the question whether by necessary implication the intention of the testator to charge the real estate arises from a reasonable construction of the language of the will, and in the light of the circumstances by which the testator was surrounded at the time of the making of the will. It is contended by the appellant that such intention must necessarily be inferred from the residuary clause in the will by which the testator bequeathed to his son George W. Alderman, the appellee, all the balance of his property, real, personal and mixed, and all moneys and obligations due him at his decease, to be the sole property of said son. But a devise of the residue and remainder of the testator’s property, real and personal, does not result in making legacies a charge upon real estate, if it appears from other provisions of the will that the testator intended that such legacies be paid from his personal property. Showalter v. Showalter, 38 Ill. App. 208. The residuary clause in question clearly shows that the testator expected that there would be moneys and obligations of the testator remaining after the payment of the legacies in question, which together with the balance of the real estate remaining he intended should become the sole property of the appellee. This expectation of the testator is also borne out by the proof made that at the time of the making of the will he had personal property amounting to twice as much as the amount of the legacies and indebtedness, and therefore would naturally conclude that after the payment of his debts and legacies a large amount would be left to go to his son under the residuary clause. In the first codicil the testator again shows by its terms that he had intended the balance of the real estate undisposed of should become the sole property of his son, the appellee, and by the words in this codicil in which he expresses the desire that the balance of his real estate, after disposing of the Michigan property, be divided among his children as he ha.d specified in the will. And it is clear that it was the idea of the testator that the other beneficiaries in his will should not have any claim upon real estate devised by the language of the second codicil in which he referred to the fact that by the residuary clause of the will he had given and bequeathed to the appellee his homestead farm of 400 acres to be his sole property. Furthermore, in this will the testator does directly make certain legacies which are in the form of annuities payable to his widow, incumbrances and liens upon the real estate devised to his children. Thus it is apparent that the testator had in mind the matter of the necessity of making legacies a charge upon the real estate to insure their payment thereby, and the inference naturally arises from this feature alone that if he had thought it necessary, or intended to make the legacies in question a charge upon the real estate, he would have done so in the same way as in the instance mentioned. Taking the whole will together, therefore, and considering all its provisions together, and looking at the situation with reference to the condition of the testator’s property as the testator must have viewed it at the time the will was made, the conclusion seems clear that the testator did not contemplate that the legacies in question would he or should be a charge upon his real estate, but that he expected them to be paid out of the personal property. We are of opinion, therefore, that the construction given the will by the chancellor was the correct one, and the decree is affirmed.

Decree affirmed.

Mr. Justice Dibell took no part.


text:
    O. C. Prideaux, Appellee, v. Mrs. Dee Miller and Addison W. Blank, Appellants.
    Gen. No. 6,683.
    1. Vendor and purchaser, § 282*—when right of vendor to declare contract null and void for nonpayment is waived. The fact that a contract for the sale of real property provides that in case of failure of the purchaser to make any payment when due, the contract shall become null and void, and that there is a failure to make one of such payments, does not render the contract null and void where the parties thereto desire and agree that it shall remain in force.
    2. Vendor and purchaser, § 199

      —when purchaser charged with notice of rights of third person. An intending purchaser who, before entering into a contract for the purchase of real property, visited the premises, saw the sign of a third person thereon and knew that such person was in possession, is charged with notice of the existence of a contract whereunder such person had purchased the property, that large payments had been made thereon, that the right to forfeit such person’s contract had been waived and different terms of payment had heen arranged and that he, the intending purchaser, cannot obtain the premises from the one offering to sell them to him, "under whose contract such third person also holds.
    3. Specific performance, § 3*—relief as discretionary. Specific performance of a contract will not be decreed as a matter of course, even though a legal contract be shown to exist, but rests in the sound judicial discretion of the court.
    4. Specific performance, § 2*—what circumstances warrant relief. To warrant the court in compelling specific performance, the circumstances must be such that it would be unjust and against good conscience to refuse to compel it.
    5. Specific performance, § 8*—when specific performance of contract that cannot he performed should not he granted. The court should, in the exercise of a sound judicial discretion, refuse to grant specific performance of a contract which could not be performed and which the person seeking the performance knew could not be performed when he filed his bill.
    6. Specific performance, § 99*—when court will not retain jurisdiction to assess damages. Where specific performance is refused under a bill therefor, a court of equity will not retain jurisdiction to assess damages, as such assessment is a legal remedy only granted in equity when for some other and equitable reason the court has jurisdiction to render a decree in favor of the injured party.
    7. Vendor and purchaser, § 2*—when contract for sale of land already sold is not illegal. That the real property which is the subject of a contract for sale has already been sold by the seller to another under a prior contract, does not render it illegal for the parties to enter into the second contract.
    8. Specific performance, § 93*—when defendant accorded equitable relief under cross-hill. Where a decree of specific performance of a contract for the sale of realty is denied because the defendant had, prior to such contract, entered into a contract for the sale of the property to another who was in possession thereunder before the second contract was entered into, defendant, if entitled to equitable relief under her cross-bill seeking to have such contract of complainant set aside, will be accorded it only upon condition that she pays any damages to which complainant may be entitled.
    9. Principal and agent, § 8*—when evidence insufficient to show agency. On a bill for specific performance of a contract for the sale of realty, evidence examined and held insufficient to show that the person by whom the sale was negotiated was acting as the agent of defendant.
    10. Payment, § 11

      —when delivery of check, to third person not payment to seller. By delivering a check for the amount to a third person who is not the seller’s agent, the purchaser does not make a tender or payment of the amount required by the contract to be paid in advance.
    11. Specific performance, § 91*—when evidence warrants dismissal of cross-bill for want of equity. On a bill to compel specific performance of a contract for the sale of realty in which defendant's answer stood as a cross-bill seeking cancellation of the contract, evidence examined and held to support a decree dismissing the cross-bill for want of equity.
    Appeal from the City Court of Elgin; the Hon. Frank E. Shopen, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 24, 1919.
    Charles B. Hazlehurst and Ernest O. Luther, for appellants.
    Joseph M. Manley and R. H. Kramer, 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, gfmie topic and section number»

   Mr. Justice Dibell

delivered the opinion of the court.

Mrs. Dee Miller owned real estate in Elgin, fronting on Fulton street and running through to Grove avenue. Her home was on the part fronting on Fulton street. There was a livery stable on the part fronting on Grove avenue. On May 11, 1915, she executed a contract with O. C. Prideaux by which she agreed to sell and convey to him by warranty deed the premises on Grove avenue for $7,000, and he agreed to pay her therefor $300 in cash, which their contract said she had received, but which in fact she had not received when she executed it, and to transfer to her seventeen shares of capital stock of the National Boiler Specialties Company, a corporation, of the par value of $100 each, which she agreed to receive in payment of $1,700 of the purchase price, and for the balance of $5,000 Prideaux was to give Mrs. Miller a mortgage on said real estate, due in 3 years. Two days later Mrs. Miller refused to carry out the contract. On December 2, 1915, Prideaux began this suit by filing a bill in equity against Mrs. Miller for a specific performance of said contract. By an amendment, Allison W. Blank was also made a defendant. The defendants filed separate answers. Mrs. Miller made her amended answer, also a cross-bill praying for the cancellation of said contract. Evidence was heard in open court at intervajs for something like a year, and there was a decree that the contract was valid and binding and that Mrs. Miller ought in equity to perform it, but that it would be impracticable to enforce a specific performance and that it was not advisable to enter a decree therefor, but that complainant was entitled to the sum of $500 damages and to a return of $300 paid on the contract, and to $50 interest, making $850, and he was awarded execution against Mrs. Miller therefor. Her cross-bill was dismissed for want of equity. The court decreed that when Mrs. Miller had paid said $850 and interest and costs, she should be relieved from further liability on said contract. Mrs. Miller and Blank appealed from said decree. They assigned joint errors, but afterwards by leave of court each assigned separate errors upon the record. Prideaux assigned cross-errors, claiming thereunder that he should have had a decree for specific performance.

Theretofore, on July 2, 1914, Mrs. Miller had entered into a contract with Allison W. Blank by which she agreed to convey' to him the same livery stable property and he agreed to pay her therefor $1,000 in cash, $750 on January 2, 1915, $750 on July 2, 1915, and then to execute to her a mortgage for $5,000, making a total consideration of $7,500, besides interest. Blank immediately entered into possession of the premises and placed signs in large letters upon the building containing his name and showing that he was a veterinary surgeon and dentist, and that he also had a dog and cat hospital on the premises. He has ever since remained in possession. Before Prideaux entered into the contract with Mrs. Miller, he visited the premises and looked them over, and knew that Blank was in possession. He did not go into the livery stable building or look for Blank, or inquire of him what his rights were. It is held in German-American Nat. Bank of Lincoln v. Martin, 277 Ill. 629, on pages 648 and 649, and in many other earlier Hlinois cases, that the open visible possession of premises is sufficient to charge a purchaser with notice of all the legal and equitable claims of the occupant; that whatever is notice enough to excite attention and put a party on his guard and call for inquiry is notice of everything to which such inquiry might have led, and that such party is chargeable with the knowledge of other facts which he might have discovered on diligent inquiry; that the purchaser is bound to inquire of the person in possession by what tenure he holds possession and what interest he claims in the premises. Prideaux’s counsel answer this by saying that the Blank contract had previously been forfeited by its own terms, and also had been forfeited by a notice by Mrs. Miller to Blank. The Blank contract contained this provision: “In case of nonpayment of any above named payments when due, then this contract becomes null and void, and all payments on the same to be forfeited.” When January 2, 1915, arrived, Blank did not pay Mrs. Miller the $750 then due. Appellee contends that when that day passed without that payment being made, the contract was at an end. Mrs. Miller and Blank afterwards agreed to continue it in force and to make payments in a different manner, and we are of the opinion that they were not forced to have a forfeiture of this contract by that provision, if neither of them desired it. J. V. Mink, a real estate agent in Elgin who drew the Blank contract, suggested to Mrs. Miller to declare a forfeiture of the contract, keep the $1,000 which she had been paid when the contract was made, and sell the premises to some one else. After January 2, 1915, had passed and the $750 had not been paid, Mrs. Miller caused Mink to prepare for her two copies of a notice of forfeiture, with a statement to Blank in the notice that if he remained in possession any longer he must pay $30 per month rent. These notices were not signed by Mrs. Miller. She went to Blank with the notices to talk to him about it. He begged for leniency and she decided not to forfeit the contract, and gave him permission to pay $30'each month thereafter upon the contract, and he did so, and has so continued down to the trial of this cause. Up to the date of the making of the Prideaux contract, Blank had only paid the. $1,000 and $30 per month beginning in January, 1915, but the proofs show that afterwards in some months, after paying $30 at the beginning, he paid $75 more in the same month, and once $150. The Blank contract, therefore, has never been forfeited, and when Prideaux visited the premises, saw the sign, and knew that Blank was in possession, he was charged with notice of the existence of the Blank contract and that large payments had been made thereon and that the provision for forfeiture had been suspended and a different arrangement made for the payment of the contract price, and that he -therefore could not obtain the premises from Mrs. Miller. He is in the same position as if he had made that inquiry before purchasing of Mrs. Miller and had learned those facts.

It is obvious that Mrs. Miller could not perform the Prideaux contract. That would have required her to give possession to Prideaux not later,than May 25, 1915. That she was then and is now powerless to do, and Prideaux knew or had that which amounts to knowledge of that fact; and she could not give covenants of warranty of title in a deed without their being immediately broken and subjecting herself to an action upon the covenants of warranty. There was a mortgage on the premises for $2,500, not due until the next year, and this contract furnished her no means with which to pay it, and she had no other means. Specific performance of a contract will not be decreed as a matter of course, even though a legal contract is shown to exist, but it is a matter resting in the sound judicial discretion of the court. Farson v. Fogg, 205 Ill. 326. The circumstances must be such that it would be unjust and against good conscience to refuse to compel the specific performance thereof. Stubbings v. Durham, 210 Ill. 542, on p. 549, where other cases are cited. Inasmuch as this contract could not be performed, and the purchaser so knew when he filed his bill, the court in the exercise of a sound judicial discretion should have refused performance. Where specific performance is refused under a bill filed for that purpose, a court of equity will not retain jurisdiction to assess the damages. Mack v. McIntosh, 181 Ill. 633, and cases cited on p. 642. The obvious reason is that the assessment of damages is a legal remedy, and will only be granted in equity when for some other and equitable reason the court has jurisdiction to render a decree in favor of the injured party. This does not mean that it was illegal for either Prideaux or Mrs. Miller to enter into such a contract. The seller has the entire life of the contract during which to procure the title he agrees to convey, and the buyer knows that fact.- We discussed that rule in Augsberg v. Meredith, 101 Ill. App. 629, and in Thompson v. Hoppert, 120 Ill. App. 588, and cited many cases to that effect. What we here hold is that as Mrs. Miller cannot perform this contract because of the prior rights of Blank, and as Prideaux knew that when he filed this bill, equity will not take jurisdiction, and therefore will not assess the damages. Sellers v. Greer, 172 Ill. 549, and cases above cited. If this were all of the case the court should have dismissed the original bill without the assessment of damages; but Mrs. Miller made her amended answer also a cross-bill to have the Prideaux contract set aside, and if she was entitled to equitable relief under that cross-bill it would only be upon condition that she pay the damages, if any, which Prideaux might be entitled to. It therefore becomes necessary to further inquire into the merits of this case.

The court below found that Mink was the agent of Mrs. Miller in the making of the contract with Prideaux, and this is denied by appellants, and is somewhat material. Mink had sometimes done business for Mrs. Miller. He was a real'estate agent and had been for very many years. The McGill Auto Company had been trying to buy this Grove avenue property from Mrs. Miller, and on May 8, 1915, it addressed to one G. W. L. Brown, who seems to have been acting for Mrs. Miller in that matter, a written proposition embodying an oral proposition made several days before, by which the company offered to buy this Grove avenue property for $4,000 cash and 25 shares of the capital stock of the National Boiler Specialties Company. Mrs. Miller then went to Mink and told him of this offer (although she seems to have incorrectly stated to him the number of shares), and she asked Mink what he thought this stock was worth. The reply which he made is in dispute. Earle Kelley, a brother-in-law of Mink, was seated in Mink’s office operating a typewriter when Mrs. Miller made this inquiry of Mink. He testified that Mink asked him if there was such a corporation and that he said there was, and told the names of some who were interested in it, and that Mrs. Miller then asked him what he thought of the stock. This Mrs. Miller denies. Mrs. Miller went away. After she went away Kelley told Mink that Prideaux had some of this stock. Prideaux was then an officer of the corporation. Kelley had been such an officer. He knew that Prideaux had some stock in that company. There is no testimony indicating that either Mink or Kelley knew that Prideaux, a dentist, had any desire to buy a livery stable, but it can be read between the lines of the testimony that they knew or suspected that he wished to get rid of the seventeen shares of said stock which he owned. Within a very short time thereafter Mink went to Prideaux and got from him an offer to be given to Mrs. Miller to pay $7,000 for this property, $300 in cash, $1,700 in said capital stock, and $5,000 in 3 years, secured by a mortgage on the premises. Within 20 or 30 minutes Mink had communicated this offer to Mrs. Miller, and afterwards they had a conversation about it, and Mink drew duplicate copies of a contract to that effect, and she signed the contracts. Prideaux took them to his lawyer, who drew another contract in duplicate, being the contract upon which this bill was based, and Mink procured their signature by Mrs. Miller and by Prideaux. Prideaux then sent a check to Mink payable to the order of Mink for $300. Mink thereupon cashed that check, paid Kelley $100, and sent his own personal check to Mrs. Miller for $200. Mrs. Miller immediately returned that check to Mink and refused to receive .it. Mink then drew his own personal check to Mrs. Miller for $300 and sent it to her and she immediately returned it. Some considerable time afterwards Prideaux went to her twice to offer her a mortgage and a $5,000 note, which he had not signed, and certificates for the shares of stock. Each time she refused to receive them. These transactions were conducted so rapidly that from the time that the McGrill Auto Company submitted its written proposition to Brown for Mrs. Miller until the time the second set of contracts with Prideaux was signed was only 3 days. Mink testified that he supposed that he was acting for Mrs. Miller. Mrs. Miller denied that he was acting for her in any respect in connection with the Prideaux contract. Nothing had been said about' Prideaux when she left Mink’s office. She did not then or afterwards ask Mink to sell this property. It seems that Brown was then her agent trying to dispose of it. After Kelley told Mink certain things, Mink went to Prideaux and obtained this offer, and Kelley took Prideaux to the premises. Out of the first payment Mink paid Kelley $100 as commission, and he testifies that Mrs. Miller had agreed to that. He said nothing about any commission for himself. He has never, so far as the proofs show, asked Mrs. Miller for any compensation of any kind. It seems very improbable that a man engaged in the real estate business for 35 years should conclude a contract for the sale of real estate for $7,000 and never suggest to his client that she pay him for his services, while at the same time paying a commission to the agent who represented the opposite party out of his supposed client’s funds. If the stock was worth par, the offer from McGill Auto Company was for $500 more than the Prideaux offer and was for cash in hand, except the stock. Mrs. Miller should also have been protected against the outstanding mortgage given by Mrs. Miller for $2,500 not yet matured. Mink did not seek to protect Mrs. Miller in these respects, nor as to the Blank contract. This he naturally would have done if he had been her agent. We therefore conclude that by the preponderance of the evidence in this record Mink was not the agent of Mrs. Miller for the sale of this real estate, and that his statements did not bind her. Whether Mink was agent for Prideaux, or was aiding Kelley as Prideaux’s agent, or was acting ■as a mere volunteer in the hope that some compensation would eventually accrue to him from some source, we are unable to determine from the evidence. As Mink was not the agent of Mrs. Miller, the check delivered by Prideaux to Mink and payable to Mink was not a payment nor a tender to Mrs. Miller of the $300 which his contract required him to pay Mrs. Miller. As Mink and Kelley were neither of them agents for Mrs. Miller, and as the contract cannot be enforced, and as Prideaux knew that before he filed this bill, we conclude that Mrs. Miller should not be compelled in this action to-pay Prideaux the $100 Mink paid Kelley.

The amended answer of Mrs. Miller, made a cross-bill, alleged that Prideaux intentionally committed a fraud upon her; that said stock was worthless and he knew it when they made the contract, and that it has been worthless ever since; that he represented to Mrs. Miller that it was worth par; that she had no other means of information and relied upon said representations and was deceived thereby. She therein prayed that said contract be canceled.

The authorized capital stock of the National Boiler Specialties Company was $100,000, of which some $60,000 had been issued. It was doing business in Elgin in a small basement and had an office in another building, and did a small amount of manufacturing of some article, and had a small account outstanding and owed more than that amount. It owned one or more patents. Mrs. Miller testified that Mink told her that Prideaux said his stock was worth $1,700 but unless Mink was Prideaux’s agent, that statement was not binding upon him. Mink testified that Prideaux told him the stock was worth $1,700, and that he told Mrs. Miller that Prideaux said so. Prideaux testified that he never told Mink or any one else that the stock was worth $1,700, but that what he said to Mink was that he would not put that stock in on that trade at less than $1,700. There was evidence tending to show that the stock was of little value. Part of this evidence was returns made by the president of the corporation to the tax assessor, and they probably were not competent as against Prideaux, and, if competent, were not very satisfactory evidence as to the actual market value of the stock. There was evidence of sales of this stock at par and of sales in the preceding year at more than par. Prideaux did not meet Mrs. Miller until a considerable time after she had refused to perform the contract, so that he did not and could not make any statement directly to her as to the value of the stock. Mrs. Miller, before she signed this contract, made inquiries of some other people as to the value of the stock, and, among others, made inquiry of a banker. No doubt it was unwise of Mrs. Miller to make this contract with'Prideaux, both because of the doubtful value of the stock, and because, if it was valuable, the offer of the McGill Auto Company was much more to her interest, and also because of the outstanding Blank contract, and because of the outstanding mortgage not yet due, and because the contract with Prideaux furnished her no cash with which she could pay the outstanding mortgage. In this condition of the testimony we cannot say that the court below should have canceled the Prideaux contract under the prayer of the cross-bill.

The decree of the court is therefore affirmed so far as it dismisses the cross-bill for want of equity, and in all other respects it is reversed and the cause is remanded to the court below with directions to enter a decree dismissing the bill of complaint for want of equity, Prideaux to pay three-fourths of the costs of the court below and Mrs. Miller one-fourth. The costs of this court will be adjudged in the same proportion.

Affirmed in part, reversed in part and remanded with direction.


text:
    Julia A. Licher, Defendant in Error, v. John Licher, Plaintiff in Error.
    Gen. No. 6,707.
    Divorce, § 45

      —when evidence sufficient to establish that husband was guilty of habitual drunkenness. On a bill for a divorce on the ground of habitual drunkenness, evidence of plaintiff that defendant had been-under the influence of liquor every day or nearly every day for the past 8 or 10 years and often did not know what he was saying or doing and that the habit had grown worse of late years, and evidence of his daughter that he could not get along at all without whisky, that she saw him under the influence of liquor every day, though he did not stagger, and evidence of another that defendant always drank whisky and could not get along without it, was always under the influence of whisky or alcohol, drinking alcohol if he could not get whisky, held sufficient to establish that defendant was guilty of habitual drunkenness.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzijst Slusser, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed December 17, 1919.
    Charles H. Darling, for plaintiff in error.
    John M. Raymond and John K. Newhall, for defendant in error.

      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 writ of error is prosecuted from a decree of the Circuit Court of Kane county, finding the plaintiff in error guilty of habitual drunkenness for more than 2 years prior to the filing of the bill of complaint herein, and granting Julia A. Licher, defendant in error, a divorce on that ground. The plaintiff in error contends that the decree should be reversed because the evidence does, not establish that the plaintiff in error was guilty of habitual drunkenness; and this is the only question raised in the case.

Julia Lieher, the defendant in error, testified in reference to the matter of drunkenness, in answer to a question propounded to her, as to what had been the habits of her husband in regard to the excessive use of intoxicating liquors during the past 8 or 10 years, as follows: “Every day, or nearly every day, he has been under the influence .of liquor. Often he did not know what he was doing or saying, and he was very ugly, and very abusive.” Also that during that time he earned scarcely anything for the support of the family, and that she had to earn about everything that came into the house for the support of the family. Also that the liquor habit had grown worse of late years. Lottie LeSuer, the daughter of the plaintiff in error, testified with reference to the conduct of her father in the use of intoxicating liquors during the past 6 or"7 years, that it had been unendurable; that her mother had come to her house many times crying she could not stand it; and that her father could not get along at all without whisky; that the effect of his drinking whisky was to make him ugly; and that she saw him under the influence of liquor every day. It is true that she also testified that she never saw him when she considered him drunk, that he would not stagger; and the court put this question to the witness: “Would you consider him a drunkard?” To which she answered: 6 He had had his whisky always; he conld not get along without it, but he would not stagger.” Frank LeSuer testified in answer.to the question as to the habits of the plaintiff in error concerning the use of intoxicating liquors: “I know that he has always drank whisky; he could not get along without it. He was always under the influence of whisky or alcohol. If he could not get whisky he would drink alcohol, if he could get that.” There are many people who do not consider a man drunk unless he staggers; and this seems to have been the idea which the witness Lottie LeSner had, concerning drunkenness; but her testimony clearly corroborates the testimony of the complainant concerning the excessive use of intoxicating liquor by the plaintiff in error; and so does the testimony of Frank LeSuer. It is a matter of common observation that man may be “as drunk as a lord” and yet walk “as straight as a grenadier.” According to Bouvier, an habitual drunkard is a person given to inebriety or excessive use of intoxicating drink who has lost the power of will by frequent indulgence to control his appetite for it. This definition was approved by this court in Richards v. Richards, 19 Ill. App. 465. Bishop also defines drunkenness to be a fixed habit of drinking to excess. 1 Bishop on Marriage and Divorce, sec. 813; and our Supreme Court in Garrett v. Garrett, 252 Ill. 318, approved of this definition. And adds that “drunkenness is the involuntary tendency to become intoxicated, which is acquired by frequent repetition, such frequent indulgence to excess as to show a formed habit and inability to control the appetite.”

We are of opinion that the evidence of the drinking habits of the plaintiff in error clearly come within the definition. referred to, and must therefore be considered as sufficient basis for the decree. The decree is affirmed.

Decree affirmed.


text:
    Horace L. Wortham, Appellee, v. Robert Quait, Appellant.
    Gen. No. 6,715.
    1. Injunction, § 269*—what is effeqt of motion to dissolve temporary injunction. A motion filed to dissolve a temporary injunction, issued pursuant to the prayer of a bill to reform a contract and to restrain the commencement and prosecution of suits to recover payment thereunder, operates as a demurrer to the bill and raises the question of the sufficiency of the bill on its face to entitle complainant to the relief sought.
    2. Reformation of instruments, § 12*—when mistakes justify reformation of instrument. That mistakes in instruments in writing may be corrected and reformed by a proceeding in equity, it must appear in such proceeding that the mistakes sought to be corrected were the mutual mistakes of the parties to the instrument.
    3. Reformation of instruments, § 38*—who are necessary parties to proceeding. On a bill to reform or nullify a contract entered into in writing between defendant, on the one part, and complainant and his brothers, on the other, such brothers are necessary parties to the proceeding.
    4. Equity, § 97*—who are necessary parties to suit. To maintain a suit in equity, all parties in interest must be made parties, either as complainants or defendants.
    5. Reformation of instruments, § 47*—when allegations- of hill are insufficient to show right to have contract annulled. On a bill to reform a written contract to conform to an alleged previous oral agreement, allegations that the signatures of complainant and his brothers who signed the contract were obtained by false representations; that defendant falsely and fraudulently advised them that the written agreement incorporated the oral agreement, that defendant, by fraud, trickery and deceit, induced complainant and his brothers to sign the contract, are not sufficient to show complainant entitled to have the contract annulled, but are mere conclusions of the pleader.
    6. Reformation of instruments, § 39

      —when certain allegations in hill are rendered nugatory hy others. Allegations in a bill to reform a written contract to conform to an alleged previous oral agreement which state conclusions of the pleader that complainant’s and his brothers’ signatures were obtained to the contract by false representations and that defendant falsely and fraudulently advised

      them that it embodied the oral agreement, are rendered nugatory by further allegations that complainant and his brothers read such contract before signing it and then construed it to mean the same as the oral agreement.
    7. Reformation of instruments, § 39*—what cannot 6e set up as grounds for avoiding contract. On a bill to reform a contract, complainant cannot set up, as grounds for avoiding the contract, fraud and misrepresentation which he could and should have set up as defense in a previous action at law brought by defendant to enforce such contract.
    8. Reformation of instruments, § 37

      —when complainant guilty of laches. One who delays bringing a suit to reform a contract until 16 years after its execution and over 8 years after defendant had brought an action at law to enforce it is guilty of such laches as will preclude him from the relief sought.
    Appeal from the Circuit Court of Winnebago county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed December 17, 1919.
    O’Shaughnessy & 0’Shaughnessy, for appellant; Lawrence Harmon, of counsel.
    Fisher, North, Welsh & Linscott, for appellee.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted by the appellant, Robert Quait, from an order of the Circuit Court of Winnebago county, denying appellant’s motion to dissolve a temporary injunction which had been ordered at the instance of Horace L. Wortham, the appellee, in accordance with the prayer of a bill of equity filed by the appellee, to reform or nullify a certain written contract existing between the appellant on the one part, and the appellee and his brothers, William L. Wortham and Jesse L. Wortham, on the other part. By virtue of this contract the appellant for the sum of $3,000 'had purchased from said parties thirty shares of stock in a certain corporation known as the Wortham Bros. Company, which had been organized by the Wortham brothers for the purpose of carrying on a general merchandise business in the City of Bockford; and in consideration of said purchase, said Wortham brothers, in said contract, had agreed to pay the appellant $240 annually on the 9th day of September of each year after 1902, and during the time that the appellant held the stock which he had purchased. It was also agreed, by the terms of the contract, that the appellant should hold said thirty shares of stock for the period of 5 years from the date of the contract; and the Wortham brothers retained the option and privilege of repurchasing said thirty shares of stock from appellant for $3,'000 at any time, before the expiration of said 5-yea.r period; and it was also agreed that the dividends earned by the stock during the time it was held by the appellant should be paid to the Wortham brothers; and they were authorized to collect the same from said corporation, and receipt therefor in the name of the appellant; and that during said 5-year period the Wortham brothers should control said stock for the purpose of voting the same at any meetings of the stockholders, and viere constituted attorneys and agents of the appellant for the purpose of voting the same. After the execution of this contract, the Wortham brothers paid three annual payments of $240, which successively became due in accordance with the terms of the contract, namely in 1903, 1904 and 1905, but failed to make any payments under the contract thereafter. Thereupon in August, 1910, the appellant commenced suit against the Wortham brothers in the Circuit Court of Cook county to recover the annual payments which were then due, and the interest. The appellant was the only one of the Wortham brothers who was served with summons, and he contested appellant’s right to recover, and made a defense in the case. The only defense made, however, was an offer to prove that the parties to the written contract prior to the execution of the writtén contract had had an oral understanding by which the obligation to pay the $240 annually was limited to the 5-year period. The court refused to admit the proof offered as a defense to the suit, and at the close of the evidence directed a verdict against the appellee for the total amount then due, with interest, amounting to the sum of $1,392, and rendered judgment for said amount, and costs of suit against the appellee. An appeal was taken by the appellee to the Appellate Court, where the judgment was affirmed. Quait v. Wortham, 211 Ill. App. 453. A petition for writ of certiorari was thereupon filed in the Supreme Court for a review of the case, but the writ was denied. In April, 1917, the appellant commenced another suit in the Circuit Court of Winnebago county to recover for six other annual payments of the $240 which had become due, for the years 1910, 1911, 1912, 1913, 1914 and 1915; and in September, 1918, commenced another suit for the annual payments which had become due in 1916 and 1917. The appellee then filed a bill in equity in the Circuit Court of Winnebago county, setting forth in his bill what he claimed' to be the facts and circumstances surrounding the execution of the contract; and setting forth an alleged prior oral agreement between the parties, substantially as embodied in the offer of proof made by the appellee on the trial of the law case, and prayed to have the written contract corrected and reformed to conform to the alleged previous oral agreement; also alleging that the signatures .of the parties, the Worthams, were obtained to said written contract by fraudulent representations; and praying for an injunction to restrain the collection of the judgment obtained by the appellee in Cook county, and the prosecution of the suits commenced by the appellee in Winnebago county; and to restrain the appellee from commencing any further suits to recover payments under said contract, and other matters. This bill was afterwards amended by making new and additional parties, and alleging additional matters in connection with said judgment rendered in the law case in Cook county, and in connection with the appeal bond filed in that case. It is unnecessary to set out these matters here, inasmuch as they have no special bearing upon the questions now presented for determination. A temporary injunction was issued in accordance with the prayer of the bill, but was afterwards modified to pertain only as a restraint of the commencement and prosecution of the suits in Winnebago county, and a demurrer was sustained to the bill as amended; but leave was given to the appellee to file an amended bill, and the temporary injunction was continued in force in reference to the suits in Winnebago county, awaiting the filing of an amended bill. Thereafter an amended bill was filed by the appellee, setting forth substantially the same facts, which were contained in the original bill in relation to the contract and its execution, which bill prays that the writing in question purporting to be a contract between the appellee and his brothers and the appellant be corrected and reformed, in accordance with the terms of the alleged original oral agreement of said parties, or be declared void and annulled; also for an injunction, restraining the prosecution of all suits then pending in the Circuit Court of Winnebago county, and the commencement of any other suits upon the contract in question. After the filing of this amended bill, the appellant made a motion to dissolve the temporary injunction which had been retained in force under the amended bill which motion was denied by the court; and from the order denying the motion, an appeal is now prosecuted.

A number of questions are raised concerning alleged errors in the action of the court, in issuing the temporary injunction under the original bill and the amendment thereto, the sufficiency of the injunction bond, and lack of jurisdiction of the Circuit Court of Winnebago county to restrain the collection of a judgment in Cook county, and concerning the sufficiency of the service on the parties; but most of these questions are practically eliminated, because before the amended bill was filed the judgment against the appellee in Cook county had been paid and satisfied, and the amended bill alleges this to be the fact. The controversy is therefore narrowed down to the question of the right of the appellee, on the basis of the allegations. in the amended bill, to maintain the injunction restraining the prosecution of the suits pending in Winnebago county, and the comniencement of other suits. The motion to dissolve the temporary injunction operates as a demurrer to the bill, and therefore raises the question of the sufficiency of the bill on its face, to entitle the complainant to the relief prayed for. Spies v. Byers, 287 Ill. 627; Stamatakos v. McCaffrey, 177 Ill. App. 370; Durand v. Dyson, 271 Ill. 382; Williams v. Chicago Exhibition Co., 188 Ill. 26; Metz v. Brodfuehrer, 198 Ill. App. 587. It is well settled that mistakes in instruments in writing may be corrected and reformed by a proceeding in equity, but it must appear in such proceeding that the' mistakes sought to be corrected were the mutual mistakes of the parties to the instrument. Silurian Oil Co. v. Neal, 277 Ill. 45; Kelly v. Galbraith, 186 Ill. 606; Sutherland v. Sutherland, 69 Ill. 481. There are no allegations in this bill from which the inference can be drawn that the mistake which the appellant seeks to correct was a mutual mistake of both parties to the instrument. It is also apparent that the bill lacks the necessary parties for the purpose of correcting a mutual mistake. This contract is not a contract merely between the appellee and the appellant, but between the appellant, the appellee and two other parties, and these other parties to the instrument are not made parties to the controversy. To maintain a "suit in equity it is necessary that all parties in interest should he made parties, either as complainants or defendants. Marcy v. Marcy, 200 Ill. App. 273; Prentice v. Kimball, 19 Ill. 320; Granquist v. Western Tube Co., 240 Ill. 132; Conway v. Sexton, 243 Ill. 59; Nolan v. Barnes, 268 Ill. 515. Nor are there any allegations in the bill of facts which show that the appellee is entitled to have the contract in question annulled. It is true that the bill alleges that the signatures of the Wortham brothers were obtained to the instrument in question by false representations; and that the appellant falsely and fraudulently advised them that the contract incorporated the alleged ora] agreement; and that the appellant fraudulently, deceitfully, and by the use of artifice and trickery, induced the appellee and his brothers to sign said contract; but these allegations were merely the conclusions of the pleader; and even as conclusions of the pleader are rendered nugatory by the additional allegations in the bill,- that the appellee and his brothers read said contract over before signing it, and, after reading it over, construed it to mean the same as their previous oral agreement. Sibert v. McAvoy, 15 Ill. 106; Bonney v. Stoughton, 122 Ill. 536; Wood v. Price, 46 Ill. 439; Baker v. Pierce, 197 Ill. App. 158. Moreover, if there were such fraud or misrepresentation practiced by the appellant upon the appellee as would avoid the contract, this was a legal defense, which appellee could, and should have, set up in the suit at law to enforce the contract in Cook county, in which he made defense. Harris v. Galbraith, 43 Ill. 309. He cannot be permitted to make a part of his legal defense in a suit at law, and reserve the remainder for a suit in equity. “The principle is well established that when a cause belongs to the jurisdiction of the law courts, equity will never interfere to restrain the prosecution of an action upon any mere legal grounds, although it may appear that the complainant in equity had a valid legal defense which was not availed of, either through the error of the court in determining the law or the facts, or the omission of himself or his counsel in presenting it.” Chapman v. American Surety Co., 261 Ill. 594.

There is another matter which appears to be fatal to this proceeding, namely, laches. The contract in question was executed on September 9, 1902. This suit was commenced October 26, 1918, after a lapse of 16 years. Nearly eight years had already elapsed when the suit at law was commenced in the Circuit Court of Cook county to enforce the contract, and more than 8 years had elapsed since that time, before the filing of this bill; the lack of diligence is therefore apparent. Courts of equity will not grant relief where parties have slept on their rights. Hollister v. Sobra, 264 Ill. 535; Moore v. Martin, 233 Ill. 512; Greenwood v. Fenn, 136 Ill. 146; Chicago & W. I. Ry. Co. v. Chicago & E. I. Ry. Co., 172 Ill. App. 156.

For the reasons stated, we are of opinion that the motion of the appellant to dissolve the temporary injunction should have been sustained for want of equity on the face of the bill, and the order denying the motion is therefore reversed and the cause is remanded with directions to sustain the motion and dissolve the injunction.

Reversed and remanded with directions.


text:
    The People of the State of Illinois, Defendant in Error, v. Shelby Vaughn, Plaintiff in Error.
    Gen. No. 6,676.
    1. Criminal law, § 577*—when defendant waives objection that verification of information was on information and belief only. By bringing the cause to the Appellate Court for review, one found guilty of assault and battery waives the objection that the information on which he was arrested and tried was verified by the State’s Attorney upon information and belief only, notwithstanding the question was preserved by proper motions in the court below.
    2. Criminal law, § 83*—when result of one prosecution does not bar another. It is not sufficient that the act is the same to make the result of one prosecution a bar to another.
    3. Criminal law, § 84

      —when prosecution for assault and battery not barred on ground on former acquittal. It is no defense to a prosecution for assault and battery that defendant, by the same blow alleged as the assault, struck the prosecuting witness and another and that he had been prosecuted for the assault and battery on such other and had been acquitted.
    Error to the County Court of Henderson county; the Hon. James W. Gordon, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed December 17, 1919.
    M. E. Nolan and H. A. Weld, for plaintiff in error.
    Albert F. Fawley and Scofield, Hartzell & Califf, for defendant in error.

      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.

Shelby Vaughn was prosecuted, convicted and fined in the County Court of Henderson county for an assault and battery upon the person of Ward Gribson and has sued out this writ of error to review said ¡judgment.

The information on which he was arrested and tried was verified by the State’s Attorney upon information and belief only. Vaughn argues that this was a violation of his constitutional rights, under People v. Clark, 280 Ill. 160, and People v. Honaker, 281 Ill. 295. He preserved this question by proper motions in the court below, which the court denied. But by bringing the cause to the Appellate Court he has waived the defect, if any. People v. Powers, 283 Ill. 438; People v. Reed, 287 Ill. 606. We disregarded this rule in People v. Berger, 210 Ill. App. 532, decided by us at about the same time that the Supreme Court decided the Poioers case, supra, but the present point that coming to the Appellate Court waived that error was not there raised.

Vaughn struck Gibson at a social gathering at a schoolhouse in Henderson county, and no justification. was shown for the act., The sole defense on the merits here relied on is that by the same blow he hit both Gibson and one Berresford; that he was prosecuted for that assault and battery on Berresford and was acquitted, and that that acquittal requires his acquittal in this case. He offered further proof than the People had introduced to show that the same blow hit both men, and he offered the record showing his prosecution and acquittal, and the court refused to admit the testimony, and he preserved the correctness of that ruling for review here. Whatever the law on that subject may be in other jurisdictions, we regard it as settled in this State that it is not enough that the act is the same in order to make the result of one prosecution being a bar to another, but the offense also must be the same. Nagel v. People, 229 Ill. 598; People v. Mendelson, 264 Ill. 453. In the latter case the defendants were indicted, tried and acquitted for breaking and entering a certain building and stealing the goods of a certain firm. They were then tried upon an indictment for the same breaking and entry of the same building at the same time and stealing the goods of another firm. It was held that the first acquittal was not a defense to the second indictment. See also Freeland v. People, 16 Ill. 380; Peri v. People, 65 Ill. 17, 22. The judgment is therefore affirmed..

Affirmed.