text:
    Daniel E. Champion et al. v. John J. Hannahan et al.
    Gen. No. 13,609.
    1. Jurisdiction—when question of, cannot be raised in injunctional proceeding. When defendants to a hill appear in a cause and file a plea to the hill and move to dismiss or dissolve a preliminary injunction issued on the hill, they submit themselves to the jurisdiction of the court and are not in a position thereafter to question the jurisdiction of the court over them.
    2. Equity—when has jurisdiction over affairs of fraternal benefit society. Equity has jurisdiction to determine the propriety of an amendment increasing the amount and the manner and method of payment of dues.
    3. Fraternal benefit society—when amendment of constitution increasing dues valid. Held, that an amendment of the constitution and by-laws of a fraternal benefit society increasing the amount and manner of payment of dues is binding upon the membership in view of its previous agreement to abide by amendments made in manner prescribed, and that such amendment was not unreasonable and that the same was therefore valid.
    4. Ebatebnae benefit society—when agreement not binding upon. An agreement made by the grand master of a fraternal benefit organization by which he in effect undertakes to abrogate temporarily the constitution of such society, is not binding upon the society in the absence of an unqualified approval.
    5. Fbatebnae benefit society—when provision of constitution valid. A provision in the constitution of a fraternal benefit society which provides that a member failing to pay his assessments shall stand expelled ipso facto and without notice, is not unreasonable.
    6. Injunction—when, mandatory, will not be granted. A mandatory injunction requiring a fraternal benefit society to restore to membership a member expelled will not be awarded.
    Bill for injunction, etc. Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 14, 1908.
    Statement by the Court. This is an appeal from a decree of the Superior Court of Cook county dismissing, for want of equity and for lack of jurisdiction, the bill of complaint filed by appellants and other members of the Brotherhood of Locomotive Firemen. The original bill was filed by 108 members of Paul Revere Lodge, No. 485, of the Brotherhood of Locomotive Firemen, and by fifty-seven members of Green Mountain Lodge, No. 301, of the Brotherhood of Locomotive Firemen. Subsequently, by order of court, 223 other members of the brotherhood became parties co-complainant.
    ' Of these, all except the three appellants and one other before the decree was entered by the court below settled with the order on the terms offered by the grand master and the other officers, and decided not to proceed further with the suit for an injunction, and as to all of these the decree dismisses the bill by consent and on motion of solicitors for complainants.
    • Briefly stated, the allegations of the bill are as follows ;
    The Brotherhood of Locomotive Firemen is a voluntary organization organized and in existence since 1873; that its object is to promote the social,'moral and intellectual standing of its members and to protect - the material interests of the members of said organization, and that the same is maintained for the purpose of assisting its members in treating with their employers in reference to the hours, wages and conditions surrounding the members during their employment, and to provide sick benefits and insurance for its members.
    The bill further alleges that on account of the influence and size of the said organization it has become a practical necessity for persons engaged in the business of locomotive firemen to belong to said organization ; that said organization has accumulated assets of property of over half a million dollars; that the complainants were members of the Beneficiary Department of the Brotherhood of Locomotive Firemen, which was created for the purpose of providing substantial relief for members who are disabled or incapacitated to perform manual labor, and for the purpose of providing death benefits to be paid to the wife, child or children, mother, father, blood relations and dependent ones, upon the death of the member; that to provide funds for the payment of said benefits, complainants, in common with other beneficiary members of said association, have been assessed certain amounts by the proper officers of the organization and have received certificates entitling the beneficiaries named therein to participate'in the fund accumulated on account of such assessments in the event of the death of the member while in good standing holding the benefit certificate; that a large fund has accumulated in the Beneficiary Department, aggregating over $160,000.
    It is further alleged in the bill that the Brotherhood of Locomotive Firemen is divided into 700 different lodges, with principal places of meeting scattered throughout the United States and Canada; that the said organization, while a voluntary organization, has a constitution providing for its government by what is known as a Grand Lodge of the Brotherhood of Locomotive Firemen, consisting of the grand master, first, second, third and fourth vice-grand masters, grand secretary and treasurer, editor and manager of the magazine, general counsel, grand medical examiner ; a grand executive board, consisting of five members; a board of grand trustees, consisting of three members and duly elected delegates, one representing each subordinate lodge.
    Complainants allege that the grand lodge consists of over 700 persons, their residences being scattered through the various states and territories of the United States and Canada; that the names of many of the members of the Grand Lodge of the Brotherhood of Locomotive Firemen were unknown to complainants, but that the names of such of the members of the grand lodge as are known to complainants are given, and said persons are joined as parties defendant as representing themselves and all other members of said grand lodge.
    It is further alleged in the bill of complaint that the Grand Lodge of the Brotherhood of Locomotive Firemen meets in convention biennially on the second Monday of September, and rules and regulations for the government of the organization are adopted at said biennial convention; that the last biennial convention of said grand lodge was held in Milwaukee, Wisconsin, on the second Monday of September, 1906,. the same having adjourned on the twentieth day of September, 1906, and that no further biennial convention would be held by the said order until the year 1908, unless a special convention should be called upon petition of at least 100 subordinate lodges.
    Complainants further allege that prior to the biennial convention of the said association held in the year 1904 there was in existence a constitution of the order containing the following provisions:

      “A candidate for admission shall at the time of applying for membership make application for a beneficiary certificate in substance as follows:
    “I, ................................................................. desiring to make application for membership in........................... Lodge No......... of the Brotherhood of Locomotive Firemen, hereby agree to comply with the laws, usages and regulations of the Order now in force or that may be hereafter enacted as the condition upon which I am to be entitled to participate in the Beneficiary Department to the amount of $................and receive the other rights, privileges and benefits of the Order. * * *
    Applicant. ■
    “Section 81. Constitution—How Amended.
    “The Constitution of the Grand Lodge and subordinate lodges may be' altered, amended or repealed at a meeting of the Grand Lodge in the following manner: Any lodge may, through its Secretary, submit such amendments or alterations as may be deemed for the best interests of the Brotherhood. Said alterations or amendments shall have the seal of the Lodge attached thereto. Grand Lodge officers shall have the right to submit such alterations or amendments as they may deem advisable.
    “The proposed change shall quote in full the section to be changed incorporating the alteration or amendment so to be made, which shall be filed in the Grand Lodge not less than sixty days prior to the meeting of the next biennial convention, and the Grand Secretary and Treasurer shall have all such alterations or amendments printed, and all subjects pertaining to one section grouped together, and a copy forwarded to each subordinate lodge and also referred to the Committee on Constitution and By-Laws at least thirty days prior to the convening of the cpnvention. The committee shall consider the alterations or amendments and, if approved, shall report the same back io the meeting with such recommendations as may be Seemed necessary, making a report for each section or subject for which there has been an amendment offered. If such report is adopted by a two-thirds vote; it shall constitute a part of the Constitution of the Brotherhood to take effect on the first day of January following, unless otherwise ordered by the convention.

      “The Grand Executive Board shall convene as a committee on Constitution and By-Laws, in the city where the convention is to be held, at least five days previous to the meeting of any convention, for the consideration of said amendments.
    ‘ Section 170. The grand dues of each member shall be in the sum of Two Dollars per year, one dollar of which shall be in payment of the Locomotive Firemen’s Magazine, and in consideration of which the member shall have his name duly entered upon the subscription list and be entitled to receive a copy of such magazine for a period of one year. Such amount shall be payable on or before the first day of July to the Collector of the Lodge. Any member failing to pay his grand dues as required in this section shall stand expelled, such expulsion to take effect July 2 and record thereof made and reported to the Grand Secretary and Treasurer. The amount so collected shall be paid to the Treasurer of the Lodge and he shall forward the same so as to reach the Grand Secretary and Treasurer not later than the 20th day of the same month.”
    That at the said convention held in September, 1904, said last quoted section of the constitution was amended to read as follows:
    . “The grand dues of each member shall be the sum of Two dollars and fifty cents per year, payable semiannually, one' dollar of which shall be in payment of Locomotive Firemen’s Magazine, and in consideration of which the member shall have his name duly entered upon the subscription list and be entitled to receive a copy of each magazine from the day of initiation to end of fiscal year. Such amount shall be payable in two equal installments on or before the first days of January and Jnly, to the Collector of the Lodge. Amy member failing to pay his grand dues' as required in this section shall stand expelled, the ■ said expulsion to take effect January 2 and July 2, and a record thereof made and reported to the, Grand Secretary and Treasurer. The amount so collected shall be paid to the Treasurer of the Lodge and he shall forward the same so as to reach the Grand Secretary and Treasurer not later than the 20th day of the same month.”

      Complainants further allege that each of them, prior to September 1, 1904, had paid to the Brotherhood of Locomotive Firemen the grand dues for the year from July 1, 1904, to July 1, 1905, as provided in said section 170, prior to the amendment of September, 1904, and a receipt had been issued to each of complainants specifying the payment of grand dues from July 1, 1904, to July 1, 1905, and that the sum so paid has been forwarded by the treasurers of the subordinate lodges to which complainants belonged to the grand secretary and treasurer of the organization, and that the same had been received with the full knowledge and consent of the other members of the organization.
    That after the amendment passed in the year 1904, complainants, who are members of Paul Severe Lodge, No. 485, contended that the payment of the semi-annual grand dues under the said amendment should not begin until July 1, 1905, but that appellees Hannahan and, Carter, who then were and still are the grand master and grand secretary and treasurer of the Brotherhood of Locomotive Firemen, contended that under the amendment passed in September, 1904, appellants were obligated to pay $1.25 each for the semiannual grand dues for the period from January 1,1905, to July 1, 1905, but that appellants, in order to avoid controversy with the officers of the grand lodge, offered to pay and did pay, in addition to the sum of two dollars already paid for the grand dues for the fiscal year from July 1, 1904, to July 1, 1905, the sum of twenty-five cents each, additional semi-annual grand dues to those paid by appellants prior to July 1, 1904, and that thereupon Paul Bevere Lodge, No. 485, of which appellants were members, entered into a certain agreement with the Brotherhood of Locomotive Firemen through the said John J. Hannahan, its grand master, which agreement was made January 19, 1905, and recites the change in the constitution as above set forth. It also recites that the by-laws of the organization provide that all amendments to the constitution shall become effective on January 1st next after their adoption, and recites the sending out of notice by the grand master and grand secretary and treasurer to each of the complainants, demanding payment of $1.25 dues for the period from January 1, 1905, to July 1, 1905.
    It further recites the contentions of the respective parties above set forth, and that it is agreed as follows:
    “1. That the said tender of 25 cents for each member shall be accepted by the officers of the Grand Lodge;
    “2. That the receipt of the same shall not prejudice the claim of right of the grand officers to insist on further payment of $1 from each member, nor shall their said claim be in any way prejudiced or waived by the reception of subsequent grand dues until 90 days after next Grand Lodge convention.
    “3. It is further agreed that no action shall be taken looking to the suspension of the parties of the second part or of any of its members on account of their refusal to pay said excess assessment until after the next convention of the Grand Lodge, and not thereafter until at least 40 days ’ notice in writing has been given to the second party of intention to enforce payment in cash of the said part of said assessment of said grand dues on which the party of the second part claims a credit of $1 per member as aforesaid.”
    It was further recited in said agreement that the intention thereof was that the question of the grand dues should stand in abeyance until the grand master should receive further instructions from the grand lodge at its next convention, and that no proceedings which might then be ordered to be taken requiring the further payment in cash by the subordinate lodge or its members should be “commenced within 90 days after such Grand Lodge convention and not thereafter, and that the party of the second part and its members shall then have the same right to insist on the allowance of said credit aforesaid that it and they now have, it being the intention hereof that the rights and claims of neither party shall be prejudiced by this agreement and the holding of the said controversy in abeyance.”

      The agreement was signed by the Brotherhood of Locomotive Firemen through its grand master, and by the Paul Bevere Lodge through its treasurer and by a committee.
    The bill of complaint further alleges that after entering into the said agreement the question of payment of the additional sum on account of grand dues was held in abeyance until after the biennial convention held in Milwaukee, Wisconsin, in September, 1906; that at the said convention, upon a report of the committee to whom the controversy between appellants and the Brotherhood of Locomotive Firemen had been submitted, the action of the said Hannahan, grand master, in entering into the contract with Paul Bevere Lodge, No. 485, was approved by the convention and the committee reported that the ruling of the grand master in reference to the collection of $1.25 on account of semi-annual dues for the period beginning January 1, 1905, was correct, and said grand master was instructed to deal with said subordinate lodges as the laws of the order provide for lodges failing to pay their dues and assessments; that on the twelfth of November, 1906, the said grand master notified the lodge of which appellants were members that the grand dues for the period ending June 30, 1905, would have to be paid by December 1, 1906, or that the penalty prescribed by said proceedings would be enforced, and that the said Hannahan, grand master, on or about December 1, 1906, notified appellants, in common with other members of said lodge No. 485 that they stood expelled for failure to pay the additional $1 grand dues for the first half of the year 1905.
    Complainants further allege that they are ready and willing and offer to pay to the Brotherhood of Locomotive Firemen any amounts on account of grand dues for the said period which the court might adjudge to be due and owing from them to the Brotherhood of Locomotive Firemen.
    Complainants further allege that' Hannahan, the grand master, and John F. McNamee, the editor and manager of the magazine, are about to publish a certain magazine, known as the “Brotherhood of Locomotive Firemen’s Magazine”; that it is their custom to publish in said magazine a list of the members expelled from said organization; that the publication of the names of complainants as expelled from the order would irreparably injure appellants, in that it would prevent appellants from procuring employment in the lines of employment in which they were especially skilled and would render it exceedingly difficult, if not impossible, for appellants to secure employment in that line, and that in the event of appellants becoming disabled, or in the event of the death of appellants, claim would be made by the Brotherhood of Locomotive Firemen that the suspension of appellants had resulted in a forfeiture of their beneficiary rights under the benefit certificates issued to them.
    The bill of complaint prays that the said parties who are made defendants in their own behalf and as representing the other members of the Brotherhood of Locomotive Firemen may be required to answer; that an injunction may be granted restraining the defendants from publishing in the official organ of the Brotherhood of Locomotive Firemen the names of appellants, or of the lodges to which appellants belong, as expelled or suspended from the Brotherhood of Locomotive Firemen, and from publishing in any manner whatsoever any statement to the effect that appellants are no longer members of the Brotherhood of Locomotive Firemen, and from expunging from the membership list the names of appellants as members, or from depriving or attempting to deprive appellants from any of the benefits or privileges of membership in the Brotherhood of Locomotive Firemen, or from entering upon the records of the Brotherhood of Locomotive Firemen any memorandum of expulsion of appellants, or from cancelling or attempting to cancel the benefit certificates held by appellants in said organization, or from doing any other act or thing which might tend to deprive appellants of any and all the advantages of membership in the Brotherhood of Locomotive Firemen.
    The bill prays for a temporary injunction in accordance with the prayer for a permanent injunction.
    The bill of complaint was filed on December 17,1906, and was duly verified.
    Subsequently, on December 18, 1906, on motion of complainants, it appearing that notice had been given by complainants to certain of the defendants, a preliminary injunction was issued restraining the defendants as prayed in the bill of complaint.
    Afterwards, oh December 21, 1906, an order was entered permitting 223 additional complainants to become parties without prejudice to any proceeding theretofore had.
    On December 29,1906, appellees Hannahan and Carter filed a plea to the bill, alleging that they are residents of the city of Peoria; that the first, second, third and fourth vice-grand masters were residents of other states, giving their residences; that John H. Smith, named as general counsel in the bill of complaint, was not general counsel; that John H. Murphy, residing in the State of Colorado, was general counsel of said Brotherhood; that the editor and manager of the magazine resided in Indiana, and that appellees George Goding and Robert Dixon resided in Cook county, Illinois, and are the only defendants named in the bill of complaint residing in Cook county.
    Said plea further alleged that Goding and Dixon were not proper or necessary parties to the bill of complaint, having no power or authority to do and not having threatened to do any of the several acts enjoined by the injunction; that the bill of complaint does not affect real estate in Cook county; and that they ought not to be required to answer the bill of complaint.
    Goding and Dixon on the same day filed a general demurrer to the bill.

      On January 25, 1907, a decree was entered reciting that by agreement between defendants John J. Hannahan as grand master and W. S. Carter as grand secretary and treasurer, payment had been accepted from 348 of the complainants in the said bill of complaint of the additional sum so claimed by the defendant, and agreeing that said complainants should be reinstated as of December 4, 1906, and that certain other parties might become co-complainants and make the said payment and be reinstated in accordance with said agreement, leaving appellants and one James A. Bacon as the only complainants not settling the controversy with the Grand Lodge of the Brotherhood of Locomotive Firemen.
    The decree further recites that the case coming on for argument upon motion of defendants Hannahan and Carter, grand master and grand secretary and "treasurer, respectively, to dissolve the injunction theretofore granted herein, and the court being fully advised in the premises, ordered the injunction to be and the same was dissolved and the bill of complaint was dismissed for want of equity and for want of jurisdiction as against the complainants, who are appellants herein.
    Ritsher, Montgomery, Hart and Abbott, for appelpellants.
    O ’Donnell, Dillon & Toolen, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

It is insisted on behalf of appellees that the bill in this case was improperly filed in Cook county, because no one necessarily or properly named as defendant resided or was served in Cook county. The decree dismisses the bill for want of jurisdiction, as well as for want of equity.

When defendants to a bill appear in a cause and file a plea to the bill and move to dismiss or dissolve the preliminary injunction, as did Hannahan and Carter, appellees, they submit themselves to the jurisdiction of the court and are not in a position thereafter to question the jurisdiction of the court over them. Appellees G-oding and Dixon appeared in the cause and demurred to the bill, and moved the court to dissolve the preliminary injunction. The appearances of appellees were not limited in any way or for any purpose. In our opinion the Superior Court had jurisdiction of the parties.

It must be held also, on the authority of Heaton v. Hall, 51 App. Div. Rep. (N. Y.) 126; Rowell v. Covenant Life Ass ’n, 84 Ill. App. 316; Ryan v. Cudahy, 157 Ill. 108; Fullenwider v. Royal League, 180 id. 621; and Dickenson v. Board of Trade, 114 Ill. App. 295, that a court of equity has jurisdiction of the subject-matter of the bill.

It appears from the decree that the bill was dismissed upon the hearing of the motions of appellees to dissolve the preliminary injunction. While it appears that the sworn plea of appellees Hannahan and Carter was read on the hearing, and the affidavits of Coding and Dixon and O’Donnel were also read, the motion must be treated, no answer having been filed, as based on the insufficiency of the bill for the relief asked, and therefore as amounting to a demurrer to the bill, thus presenting the question whether the complainants state a case in their bill for equitable relief.

The bill makes no question upon the regularity of the proceedings whereby the amendment to the constitution set out in the bill was adopted. The question presented by the bill was to the right of the convention of the Brotherhood of Locomotive Firemen held in September, 1904, to change the constitution of the order, whereby the grand dues of each member were fixed at $2.50 per year, instead of $2, and providing for its payment in two equal installments on the first days of January and July in each year, and the right to enforce such amendment against complainants on January 1, 1905, complainants having paid on July 1, 1904, their dues to July 1, 1905, under the provisions of the constitution as it existed before the amendment was adopted.

The time when the amendment went into effect was fixed by section 81 of the constitution, in the absence of any action of the convention fixing a different date.

Appellants, when they joined the order, agreed in their applications ‘ to comply with all the laws, usages and regulations of the Order now (then) in force or that may be hereafter enacted.” They therefore agreed to and were bound by the above provision of the constitution that amendments might be made in the way therein provided, and that such amendments should take effect on the first day of January following, unless otherwise ordered by the convention.

A court of equity cannot say that the amendment was unreasonable, nor can the court say that it would work any hardship upon appellants because they had paid their dues in advance of the going into effect of the amendment. With a membership as large as ■that averred in the bill, it would necessarily happen that very many of the members would have paid dues in advance of any change of the constitution.. Indeed, most of the members of the order, if not all of them, if they paid their annual dues on the first day of July in each year, under section 170 of the constitution before it was amended, must have been in the same situation as appellants, as to the advanced payment of their dues from January 1, 1905, to July 1, 1905; so that the amendment must have affected equally all members, and if appellants are right in their contention that they could not be called upon for the increased assessment of dues until July 1, 1905, it would be impossible to put the amendment in force until that date, although the constitution provided it should be in force January 1,1905.

In our opinion, every member of the order paid his annual dues subject to the provision of the constitution in regard to amendments thereof, and if such amendment went into force and effect on January 1st, as we think the amendment in question did, each member was bound to pay his dues from January 1st in accordance with the new provision.

When a member of a voluntary association agrees when joining to be bound by all laws of the association then in force, or which may thereafter be enacted, he is bound by any change in the laws, even though such change may vary the terms of his contract with the association as to the rate of his assessments or otherwise. He has no vested right to have the rate of assessment fixed by the law of the association, when the contract was entered into, remain unchanged. Fullenwider v. Royal League, 180 Ill. 621; Peterson v. Gibson, 191 id. 365; Scow v. Royal League, 223 id. 32; Murphy v. Nowak, 223 id. 301.

The bill shows that the biennial convention of the order held in 1906 approved the construction of the amendment of 1904, placed thereon by the grand master, and directed the executive officers to carry the amendment, as interpreted by him and the convention, into effect. No doubt, -as contended by both sides to this controversy, under section 173 of the constitution of the order, appellants, having failed to pay their dues to a subordinate lodge or to the grand lodge, as provided by the constitution, stood, ipso facto, upon such failure, expelled from the order, and no action of the lodge or of any officer was required to give effect to such expulsion. This was the situation and standing of appellants and each of them when the agreement of January 19, 1905, signed by the grand master of the order and the treasurer and committee of the Paul Severe Lodge was made. It is necessary, then, to consider the effect, if any, of this agreement upon appellants’ rights.

By this contract it was agreed that the Paul Bevere Lodge should be permitted to pay twenty-five cents in cash for each of the members of that lodge who, on July 1, 1904, paid the grand dues assessment then made for the year ending July 1, 1905, but without-prejudice ' to either party, and the claim of right of the grand officers to insist on a further payment of one dollar for each member should not be waived or prejudiced by the reception of subsequent grand dues until ninety days after the next grand lodge convention. The agreement also provided that no action should be taken by the grand lodge or its officers, agents or lodges looking to the suspension of Revere Lodge or its members on account of their refusal to pay the grand dues withheld until after the next convention of the grand lodge, and until after forty days’ notice in writing had been given to the Revere Lodge of the intention to enforce payment in cash of the part of the assessment of said grand dues on which that lodge and its members claimed a credit of one dollar per member/

The bill shows that at the biennial convention of the grand lodge held in Milwaukee in September, 1906, the action of the grand master in entering into the above agreement was approved, and that the ruling of the grand master in reference to the collection of $1.25 on account of semi-annual dues for the period beginning January 1, 1905, was correct, and the grand master was instructed to deal with the said subordinate lodges as the laws of the order provided for lodges failing to pay their dues and assessments. The bill avers that on November 12, 1906, the grand master notified the lodge of which appellants were members that the grand dues for the period ending June 30, 1905, would have to be paid by December 1, 1906, or that the penalty would be enforced; and that on or about December 1, 1906, the grand master notified appellants that they stood expelled for failure to pay the additional one dollar on grand dues for the first half of the year 1905.

Waiving for the moment the question whether tha agreement was binding upon the Brotherhood, and assuming that it was binding on the parties to it, the claim of appellants is that they were entitled to forty days’ notice after the convention before any further action to enforce the expulsion could be taken against them, and that they did not receive such notice.

The contract provides that the notice should be given to the Paul Bevere ■ Lodge, the second party to the contract. The lodge was represented in the convention by its delegates under the constitution. The resolutions passed at the convention were notice to the delegates, and, through them, to the lodges which they represented, of what those resolutions declared or provided. As appears by the bill, the Paul Bevere Lodge had notice on or before October 21, 1906, of the action of the convention, for on that day the lodge adopted a resolution declaring that it did not accept the decision rendered by the tenth biennial convention relative to the controversy existing between the lodge and the grand lodge in regard to payment of grand dues January 1,1905, and instructed a committee to appeal to the courts. It thus appears from the bill that the lodge had forty days’ actual notice that the convention had approved the interpretation of the amendment to the constitution put upon it by the grand master and had directed him to enforce it. The resolution adopted by the lodge amounts to an express admission that the lodge had full knowledge and notice on October 21, 1906, of the proceedings of the convention, including the direction of the officers of the grand lodge to enforce the constitution as amended and its interpretation of the amendment. The resolution also shows that the lodge defiantly, and in advance of any action of the grand master, proclaimed that it would not accept the decision of the convention on the matter in controversy and live up to and perform the spirit of the agreement on its part. This action by the lodge was a waiver of the right of the lodge, if it had any such right, to require a formal written notice, and in equity the lodge, or appellants as members - of it, cannot complain of the absence of such notice. The bill, therefore, presents no just or equitable cause, or ground of relief, based on a violation of the agreement by the Brotherhood.

We think, however, the agreement in question did not bind the parties to it. The agreement expresses an attempt made in the interests, of harmony to settle the controversy, and avoid litigation. This was commendable, but it was not effectual in law or fact. The bill shows no authority in the grand master to make such an agreement on behalf of the grand lodge. The qualified approval of his action in this regard by the convention did not give life or force to the agreement. It was' not in the power of the grand master and the convention to suspend or abrogate temporarily the constitution under which they were acting, in the manner and by the means shown by the bill.

The provision of the constitution of the order above referred to, providing that a member failing to pay his assessments shall stand expelled ipso facto and without notice or trial, is not unreasonable. The People v. Board of Trade, 224 Ill. 370. But whether reasonable or unreasonable, appellants agreed to he bound by it, and indeed make no complaint on that ground. Where the constitution and laws of a voluntary association in regard to expelling a member are not unreasonable or contrary to public policy, equity will not interfere by injunction to prevent such expulsion. Board of Trade v. Riordan, 94 Ill. App. 298, and cases there cited.

At the time when appellants filed this bill, they stood, as we have seen, expelled from the order, and no action of any lodge or officer was necessary to give effect to such expulsion. The publication of the names of appellants in the official organ of the Brotherhood, which is sought to be enjoined by the bill, would have no other effect than to give notice of a fact. It could not affect the standing or memberships of appellants. It seems clear, then, that in the last analysis the real object of the hill is to restore appellants to membership. In this view of the bill the court did not have jurisdiction. A court of equity will not do this, even if they were unlawfully expelled. An° injunction is a preventive remedy merely, and cannot be so framed as to command a party to undo what he has done. Fisher v. Board of Trade of Chicago, 80 Ill. 85; Baxter v. Board of Trade of Chicago, 83 Ill. 146; Pitcher v. Board of Trade of Chicago, 121 Ill. 412.

In our opinion, the chancellor did not err in dismissing the hill for want of equity, and the decree must be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith Mr. Presiding Justice Baker

license: Public Domain

text:
    The Lehigh Valley Transportation Company v. Joseph Cook.
    Gen. No. 13,614.
    1. Personal injuries—what essential to recover for. In order to recover in an action for personal injuries, it is essential not only that proof be made of actionable negligence, but also the plaintiff must establish that he was at the time of the accident in the exercise of ordinary care for his own safety.
    2. Contributory negligence—when established. Held, that it was contributory negligence for the plaintiff, knowing of the existence upon the deck of a ship of a hatchway, to walk (vision being obscured) over such deck without knowing whether the hatchway was open or closed.
    Baker, P. J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed.
    Opinion filed January 14, 1908.
    Statement by the Court. The plaintiff below, appellee, recovered a judgment against defendant, appellant, for $7,500 for damages for personal injuries. The case comes to this court on ah appeal from that judgment.
    Appellant is the owner of a line of steamboats plying between Buffalo and Chicago. On April 27, 1905, shortly after seven o’clock a. m., the steamer Maueh Chunk, one of appellant’s boats, arrived at appellant’s dock in the Chicago river with a cargo of miscellaneous freight, a part of which at least was to be discharged at that dock.
    William J. Connors, who was a co-defendant in the court below, was engaged in the business of loading and unloading steamboats belonging to appellant at the port of Chicago, under a contract, the terms of which are not disclosed in the record, but appellee was in the employ of Connors as a dock laborer, and was not in the employ of appellant.
    The morning was cloudy and it was raining or misting. As the boat arrived at the dock the crew opened No. 3 gangway, which was about fifty feet from the bow of the vessel, and ran out a gangplank from the vessel to the dock. Because of the fact that the deck of the vessel was so much higher than the dock, John Lawless, who was in charge of a gang of dock laborers or stevedores, of which appellee was one, went along the dock with a part of his gang to procure another gang-plank to put in this same gangway for the purpose of reducing the incline or grade from the deck of the vessel to the dock. Appellee did not go with the part of the gang for the additional gang-plank, but, as he claims, in obedience to an order from Lawless, went on board the vessel to look for a truck, and fell through an open hatchway, which was about fifteen yards from the gangway where he entered, and was injured.
    At the close of appellee’s case a motion was made to direct a verdict for appellant, which was denied. This motion was renewed at the close of all the testimony, and it was again denied. Proper exceptions to the rulings were preserved.

      Ullmann, Hacker & Hoag, for appellant.
    Elmer & Cohen, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

In addition to proof of actionable negligence on the part of appellant, it was necessary, in order to make a case, that the appellee prove that at the time of the accident he was in the exercise of due care for his own safety—in other words, that his own negligence did not contribute to the injury. Cullen v. Higgins, 216 Ill. 78, 82.

Appellee was not in the employ of appellant. He was in the employ of Connors, and went on board the ship in obedience to the order of his foreman, Lawless, if any such order was given to look for a truck. The evidence as to where the trucks belonging to the ship were kept in the ship, is contradictory. Some of the testimony is to the effect that they were kept in the fan-tail, upwards of 400 feet from the place where appellee was injured, and some of the witnesses say they were kept in the forward part of the ship. It appears from the evidence that appellee had assisted in unloading this vessel on other occasions. If he did not know where the trucks were kept, it would have been only reasonable and prudent to have inquired of some of the boat’s crew. Without stopping to make any inquiry, or waiting for the gang-plank which his foreman with a part of his gang had gone down the dock to procure for the purpose of reducing the grade from the deck of the vessel to the dock, in preparation for the work of unloading the cargo, and without waiting for the hatchway on the spar deck to be opened, which was done within a few minutes after he fell, he went on the main deck and walked about fifteen yards from the gangway, where it was dark, and stepped into the open hatchway Ho. 2. Appellee testified that hs knew there was a hatchway there, but he says the hatchways were generally closed, and on other occasions when he worked on this vessel this hatchway was closed.

At this time the ship was not fully prepared for unloading the cargo. The gangway and gang-plank was not ready for that purpose. The spar deck hatchways, known as three, four, five, six, seven, eight, nine and ten, had been opened, but hatchways one and two on the spar deck, which were over or nearly over hatchway two and would, when open, admit light to it, had not been opened. The freight checker who directs what j freight is to be taken off was not there, and no orders 1 had been given as to the handling of the freight. J

In the opinion of a majority of the court, the evidence shows that appellee’s own negligence contributed to his injury, and therefore he is not entitled to recover. It was not consonant with due care for his own safety for appellee, knowing that the hatchway was ’ there, to walk over the deck without knowing whether the hatchway was open or closed. He had no right to assume that it was closed at that particular time, when, as he knew, the cargo of the vessel was to be discharged, and the hatchway might be open for that very purpose. As said in C., M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248-254: "One who, failing to observe / due care, blindly walks into a danger that the observ-f anee of due care would have enabled him to avoid, is* no less guilty of contributory negligence, than he, being able, by the observance of due care, to extricate himself from danger, fails to make any effort for his personal safety, and because thereof is injured.”

Appellant at the time of the accident had done nothing, in the opinion of a majority of the court, which cast upon it the duty toward appellee to keep the hatchway in question closed or guarded at the time appellee fell into it. The opening of the gangway was not an invitation to appellee to enter the ship, under the circumstances shown in evidence. As stated above, appellee was in the employ of an independent contractor. Appellant had no notice of his intention to go near the. hatchway, for there was nothing for him to do there, and at that point of time it could not be expected to guard against the action of appellee in walking around in the darkness where he was not invited or expected, in advance of the time when he, as a member of Connors’ gang, might reasonably be expected to be on board the vessel for the purpose of unloading the cargo. He was not obliged to walk there for the purpose of removing and unloading freight, and he was not there for that purpose.

In Dwyer v. National Steamship Co., 4 Fed. Rep. 493, the court, in discussing the alleged duty of the owner of the steamer of maintaining the hatchway in a safe condition and the failure to discharge that duty, at page 495 said: “Hatchways are well-known features and sources of dangers on a ship. They are intended to be open a large portion of the time, especially when in port, not only for the purpose of loading and unloading cargo, but also for ventilation. An open hatchway on a ship, when provided with the usual coamings, is not evidence of a neglect of duty on the part of the ship-owner. On the contrary, a ship-owner has the right to allow the hatchways of his ship remain uncovered and unprotected, except by the usual coamings; and all persons moving upon the decks of a ship are chargeable with notice of the probable presence of open hatchways on the deck. Neither is it the duty of the ship-owner to maintain a guard stationed at the hatchway of his ship for the purpose of protecting persons from injury by falling into it. Such a duty would be burdensome in the extreme, and is not "required by the law. Murray v. McLean, 57 Ill. 378. The requirement would be unreasonable, has never been observed in practice, nor, so far as I know, declared in any adjudicated case.”

To the same effect is The Helios case, 12 Fed. Rep. 732, the court saying at page 733: “It was not a hatch for the usual stowage of cargo, such as stevedores must at their peril look out for and aré presumed to know about, and had no reference to the cargo, and the stevedores had no business with it, as the evidence shows.” For the foregoing reasons a majority of the court think that appellant is not liable. The judgment is reversed with a findings of facts.

Reversed.

Mr. Presiding Justice Baker

dissenting.

I think that the rules of law applicable to the owner or occupier of real property apply to the owner of the vessel in question. “The owner or occupier of real property is under the duty of exercising reasonable, ordinary care and prudence to the end of keeping his premises safe for the benefit of those who come upon them by his invitation, express or implied. * * *

The person so invited to come upon the premises of the other is entitled to assume that they will be in a reasonably safe condition.” 1 Thompson on Neg., see. 968.

Defendant contracted with Connors to unload its vessels at Chicago, and to unload a vessel Connors’ stevedores must gó on board the vessel they were to unload. Defendant therefore owed to them the duty to use reasonable care to make and keep that part of the vessel into which they might by implication be invited to go, or into which the defendant was reasonably bound to anticipate that they would go in unloading or preparing to unload the vessel, reasonably safe.

The only one of the vessel’s officers or crew who was examined was Burke, the first mate, whose deposition was taken by the defendant and read at the trial by the plaintiff. He testified in part as follows, on his examination in chief: “Q. What did you do there, Mr. Burke, when you first came to the dock? A. We started opening up gangways to let the men aboard. Q. And for what purpose were you opening up the gangways? A. To let the men go aboard to unload the cargo.” He further testified that the crew opened No. 2 gangway, which was fifty feet from the forward end of the vessel; that plaintiff was in the gang working at No. 2 gangway.

The evidence warranted a finding by the jury that trucks were kept on the main deck of the vessel, at its forward end, and that plaintiff’s foreman, after the gangway was opened, ordered plaintiff to go on board the vessel and get a truck. The gangway through which plaintiff went on the vessel was opened by the crew some time after the vessel reached the dock at Chicago. The opening of the gangway was, under the evidence, in my opinion, notice to Connors’ employes that the vessel had been made ready for them, and was an implied invitation to them to come on the vessel. Forward of the gangway through which plaintiff came, was, in the main deck, an open, unprotected hatchway, twenty-one feet long, leaving a passage six feet wide at each end. It was dark in that part of the vessel where the open hatchway was. In the forward part of the vessel, on the main deck, was cement in bags. The checker mentioned was an employe of the Chicago agent of defendant, and did not go on a vessel until they were ready to unload. He told the foreman of the stevedores what' freight was to be taken off, but the stevedores were subject to the orders of their own foreman. For all that Burke, the mate, or anyone on board the vessel knew, when the gangway was opened, the cement in the bow of the vessel might be unloaded first. I do not think that when the mate opened the gangways he had any right to assume that no stevedore would go, by order of his foreman or otherwise, forward from the gangway on the main deck; on the contrary, I think the invitation implied to come through the gangway on the main deck included an invitation to go to such place on that deck as it was necessary for a stevedore to go to unload or to prepare to unload the cargo, and that the servants of the defendant in charge of the vessel were bound reasonably to anticipate that a stevedore who came onboard under such implied invitation might go forward on that deck to get a truck or for some other purpose.

I think the question whether, under the evidence in this record, the act of defendant in permitting the hatchway through which plaintiff fell to remain open and unguarded constituted and was negligence, was a question of fact for the jury, as was the question whether the plaintiff was in the exercise of reasonable care for his own safety.


author: Mr. Justice Smith

text:
    Jacob Glos v. Jennie Louise Larson.
    Gen. No. 13,626.
    1. Master in chancery—when findings of faet by, will not be disturbed. Before the findings of fact of a master will be disturbed it must clearly and manifestly appear that he was in error.
    2. Tax certificate—what not valid assignment. While the statute provides that a tax sale certificate is assignable by indorsement, and that an assignment thereof shall vest in the assignee all the right, title and interest of the original purchaser at the sale, it does not follow that an indorsement in blank is sufficient to transfer the ownership thereof.
    3. Tender—effect of, upon taxation of costs. In a proceeding to cancel a tax sale certificate as irregular and void, it is not error, upon sustaining such a proceeding, to tax all costs against the defendant accruing subsequent to a tender of the amount due under the certificate.
    Bill for injunction, etc. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 14, 1908.
    Statement by the Court. The bill in this case was filed in the lower court on January 22, 1906, by appellee against Jacob Glos and the County Clerk of Cook county, alleging among other things that she was the owner of the property in question and had been in possession thereof for a long time prior thereto; that a certificate of sale had been issued to the said Grlos, who was still the owner and holder thereof, and that said certificate was void because no notice had been served upon the owners or parties in possession of the premises, and that the holder of the certificate was not entitled to a deed.
    The bill prayed for an injunction against Grlos restraining him from applying for a deed on the certificate, and enjoining the County Clerk from issuing a deed.
    Appellant Grlos answered, and a replication was filed by appellee. The cause was referred to a master in chancery, who, after hearing the evidence, made a report finding the allegations of the bill to be true, and recommending a decree in accordance with the prayer of the bill. Objections and exceptions were filed to the report, which were overruled respectively by the master and the court, and a decree was entered in accordance with the prayer of the bill.
    John R. O’Connor, for appellant.
    David G. Robertson, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The master found from the evidence, and the decree so finds, that Jacob Grlos was, at the time of the filing of the bill of complaint and at the time of .the report, the owner and holder of the certificate of sale, and that A. A. Timke was the agent of Grlos. It is urged that this finding is unsupported by the evidence.

We have duly considered the evidence and find that it supports the finding of the decree. Appellant did not testify in the case. Timke, who had been appellant’s clerk for nearly fourteen years, testified that he was the owner of the certificate in question which had been indorsed to him in blank by Grlos. His testimony, we think, shows that he was acting merely as the agent of appellant, and that the contention that he, Timke, was the owner of the certificate was a mere pretense and a subterfuge. The master saw and heard the witness and was in a better position to determine the truth in respect to this contention than the chancellor or this court. Even though we were in doubt as to the correctness of his finding, we would not be justified in disturbing the decree on the evidence. It must appear manifestly and clearly to us that the master was in error in his conclusion upon the facts before we are justified in substituting our own conclusion for his, the chancellor having approved his finding. Miltimore v. Ferry, 171 Ill. 219; Siegel et al. v. Anduras & Co., 181 id. 350; Jamieson et al. v. Wallace et al., 60 Ill. App. 618; Lawther v. Thornton, 67 id. 214; Huhman & Co. v. McBryde, 80 id. 592.

While the statute provides that a tax sale certificate is assignable by indorsement, and that an assignment thereof shall vest in the assignee all the right, title and interest of the original purchaser at the sale, it does not follow that an indorsement in blank is sufficient to transfer the ownership thereof. Chicago Tr. & Sav. Bank v. Trust Co., 190 Ill. 404. In our opinion the evidence does not show a valid legal' assignment of the tax certificate to Timke.

The decree finds that in compliance with an order of court theretofore entered in the cause, the complainant on July 3, 1906, tendered to appellant in open court the sum of $14, which sum was more than sufficient to reimburse him for the amount paid by him for said certificate of sale, subsequent taxes, costs and appearance fee in this cause paid by him and interest, and that he refused to accept the same, and thereupon it was deposited with the clerk of the court, subject to his order. It was .not error, we think, to tax the costs of the suit which accrued subsequent to the tender, against appellant.

The record is free from substantial error, and the decree is affirmed.

Affirmed.


text:
    Chicago & Eastern Illinois Railway Company v. George F. Jennings, Administrator.
    Gen. No. 13,635.
    Appellate Court—when decision in former appeal not binding upon. The decision of the Appellate Court rendered in one appeal of a case is in nowise binding upon it in a subsequent appeal of the same case where the decision of such court upon the first appeal was reversed and held for naught.
    Action in case for death caused by alleged wrongful act. Appeal frofn the Circuit Court of Cook county; the Hon. Charles M. Walked, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed.
    Opinion filed January 14, 1908.
    Calhoun, Lyford & Sheean, for appellant; E. H. Seneff, of counsel.
    Wing & Wing, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This is the second appeal to this court from judgments in this cause. The decision on the first appeal is reported in 89 Ill. App. 335. In the opinion of the court on that appeal the material facts appearing in the record now before us are stated. Counsel for appellee state in their brief that on the trial now before us for review the evidence was almost, if not precisely, the same as was the evidence in the first trial. It is not necessary, therefore, to restate the evidence. The pleadings also are the same. They are stated in C. & E. I. R. R. Co. v. Jennings, 190 Ill. 478, where the judgment of the Appellate Court was reversed for error in the refusal of the trial court to give certain instructions, and the cause was remanded to the Circuit Court.

It is contended on behalf of appellee that the former decision of this case by the Appellate Court on the merits is final as to the matters decided, and is con-elusive upon the parties on this appeal. This contention, we think, as applied to this case, is not sound. The former decision and judgment of the Appellate Court was wholly reversed and set aside by the Supreme Court. While the decision of that court is based solely on error in the trial court in refusing to give instructions upon the principal question in dispute in the case, as to whether Jennings had become a passenger on appellant’s railroad, its legal effect nevertheless is to reverse, set aside and hold for naught the judgment of the Appellate Court as erroneous. When a judgment of the Appellate Court is reversed for error in precise terms, or in effect, it is no longer conclusive upon the parties or this court on a second appeal in the same case. We know of no authority holding to the contrary. To hold that the former decision is conclusive on the merits, although it has been reversed for error in law, involves an absurdity in theory and results to which we decline to commit the court. This case is before us for decision with the duty and liberty to consider every assignment of error as fully and as freely as upon the former appeal, but with the advantage of the clear exposition of the law .applicable to the question whether or not Jennings had become a passenger on appellant’s railroad, by the Supreme Court, in disposing of the case on the appeal above referred to.

As stated by the Supreme Court when this case was before it, each of the five counts of the declarations avers that appellant received Jennings as a passenger at or upon the intersection and crossing of its railroad and Seventy-sixth street, and near to its Seventy-sixth street station in the city of Chicago, upon a train about to arrive at, and stop and wait at said Seventy-sixth street station or depot; and that it thereupon became the duty of appellant to have permitted said Jennings safely to cross over its railroad tracks while going to said depot, etc. The different counts differ somewhat in respect to the character of the negligence charged as a breach of said duty.

The Supreme Court, after stating the averments of the declaration, and in answer to the contention of appellee that the relation of passenger and carrier alleged in the declaration was not so material as to require absolute proof, hold that under the fundamental rule that a plaintiff must recover, if at all, upon the case made by his declaration, and under the declaration the allegation was a material one. The court further said, at page 488 of the opinion: “There was no count upon the common law duty of a railroad company arising out of its relations to a person crossing a street over its tracks or resting on a relation of that kind. Every count was based on the contract relation, and plaintiff was bound to prove it.”

Upon a careful review and consideration of all the evidence upon this question in the record we are of the opinion that it fails to show the contract relation of passenger and carrier between appellant and Jennings at the time of the accident. There is no dispute or controversy in the evidence on this question. The material facts are stated in the opinion of the Supreme Court on pages 480 to 482 of its opinion. These facts do not, in our opinion, under the law laid down by the Supreme Court, create the contract relation of carrier and passenger; and under the facts and the law. the trial -court should have given to the jury at the completion of the evidence the instruction to find the defendant not guilty, as requested by appellant.

The judgment of the Circuit Court is accordingly reversed, but not remanded, with a finding of fact.

Reversed, with finding^ of fact.


text:
    B. A. L. Thomson v. A. H. Patek et al.
    Gen. No. 13,658.

      Appearance—when not general. Held, under the facts of this case, that the appearance of the defendants made in connection with a motion to set aside a judgment was not general so as to preclude the urging of jurisdictional questions and did not confer validity upon a judgment otherwise void.
    Replevin. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 14, 1908.
    Statement by the Court. Appellant Thomson commenced an action of replevin in the Circuit Court August 14, 1901, against appellees and others. October 11, 1901, Willis E. Thorne filed an appearance on behalf of all the defendants who are still parties to the suit, and on the same date he filed a demurrer to the original declaration. October. 28, 1901, the plaintiff filed an amended declaration in trover, under leave of court theretofore granted.
    About five years later, October 29, 1906, by agreement in open court, the demurrer to the declaration was overruled, and the defendants were ruled to plead within two days. November 14, 1906, a default was entered as to all remaining defendants for failure to plead, a jury was sworn to assess plaintiff’s damages, and the damages were assessed at $3,581. Upon tire verdict so rendered the court entered judgment.
    On November 17, 1906, the last day of the October term, a motion to vacate the judgnient of November 14,1906, was entered by the defendants and continued. This motion, though made apparently by all the defendants, was afterwards supported by the attorneys for the defendants Patek and Barry.
    November 20, 1906, the second day of the November term, another motion was entered to vacate the judgment, also, on behalf of all the defendants, signed by Moran, Mayer & Meyer, attorneys for the Lincoln Warehouse & Van Company.
    In support of these motions certain affidavits were filed and read on the hearing of the motions. The grounds of the motions were (1) that the defendants had never been served with process, and (2) that their appearance had been entered without their knowledge or authority, and consequently the court had no jurisdiction of the defendants.
    On the hearing of the motion the court vacated the judgment. Pleas were filed and issues formed, and on motion of the plaintiff’s attorneys the case was set for trial on a day certain; and when the case was called for trial, the plaintiff failing to prosecute, the suit was dismissed for want of prosecution.
    Counsel for appellant say in their brief that the case is brought to this court for the purpose, primarily, of having the action of the lower court in vacating the judgment reviewed.
    George I. Haight and Thomas M. Headen, for appellant.
    Moran, Mayer & Meyer, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

That the court below had power to vacate the judgment after the term had gone by, because of the unauthorized appearance of the defendants entered by Thorne, is fairly and properly conceded by counsel for appellant. They insist, however, that the showing of want of authority to enter the appearance of defendants should be very clear and almost conclusive. Appellant’s counsel likewise concede that if a judgment is set aside as to one, it must be set aside as to all defendants. It is unnecessary, therefore, for us to discuss these questions of law presented in the briefs.

Two facts are relied upon to support the action of the court in vacating the judgment: First, that the defendants have a meritorious defense to the action; and second, that the entry of the appearance of the defendants in the case was wholly unauthorized. To these grounds the affidavits filed and read on the hearing are directed.

Upon an examination of the affidavits we think they show both of the grounds indicated above with sufficient clearness and strength of proof to justify and warrant the court in finding that the appearance of the defendants was entered without their knowledge, acquiescence or authority, and that the defendants had a good and meritorious defense to the plaintiff’s cause of action.

It is urged, however, in behalf of appellant, that by the entry of a general appearance, and by the insistence upon non-jurisdictional as well as jurisdictional grounds in support of their motion to vacate, appellees thereby validated the judgment, although the same was originally void. In support of this contention, counsel cite several authorities.

We find no sufficient basis in the record, however, for the contention. The motions to vacate the judgment do not request any amendments of the record, nor do they seek to do anything beyond the vacation of the judgment for want of jurisdiction. The affidavit of Thorne in support of the motions affords no basis for the finding in the order of October 29, 1906, regarding the action of the court on the demurrers to the original declaration, and the giving to the defendants leave to plead. The mere fact that the order vacating the judgment contained such an immaterial finding does not, in our opinion, afford sufficient ground for holding that appellees took grounds before the court inconsistent with the contention of want of jurisdiction of the court over the persons of appellees, and thereby made the appearance of the appellees, under the authorities cited, a general appearance in the case. The cases of Ryan v. Driscoll, 83 Ill. 415, and Gilchrist Trans. Co. v. Northern Grain Co., 107 App. 531, are clearly distinguishable from the case at bar in their facts. In the first case the defendants, after default, appeared and participated in the proceedings on the inquest of damages. In the second case the jurisdiction of the court was not questioned or denied. In our opinion the void judgment against appellees, for want of jurisdiction over them, was not validated by their motion to vacate it. Grace v. Casey-Grimshaw Marble Co., 62 Ill. App. 149; Klemm v. Dewes, 28 Ill. 317; Godfrey v. Valentine, 39 Minn. 336; Blackburn v. Sweet, 28 Wis. 578; Shaw v. Rowland, 32 Kan. 154; Boals v. Shules, 29 Iowa 507; National Bank v. Grimes, 45 Kan. 510.

We find no error in the record and the order is accordingly affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    Dornfeld-Kunert Company v. Charles Volkmann.
    Gen. No. 13,585.
    1. Corporations—when admissions of vice-president binding. Held, under the evidence in this case, that admissions made by the vice-president of a corporation were binding upon that corporation.
    2. Contracts—what competent to aid interpretation. If a contract is ambiguous, it is competent to permit the introduction of evidence which will enable the court to be in the position of the parties who made the contract at the time of its making.
    3. Contracts—what competent to aid interpretation. In order to aid in the interpretation of a contract, it is competent to permit the introduction of parol evidence as to the meaning of technical terms, which otherwise would be ambiguous.
    4. Instructions—must not invade province of jury. An instruction is vicious, in that it invades the exclusive province of the jury to determine the facts by telling them that “there is no evidence that Domfeld had any authority to act for and on behalf of the defendant with regard thereto.”
    5. Instructions—must not ignore facts. An instruction is erroneous which ignores a material admitted fact and excludes its consideration from the jury.

      Assumpsit. Appeal from the County Court of Cook county; the Hon. William C. De Wolf, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    Edmund S. Cummings, for appellant.
    Karr Steele, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The question in dispute between the parties to this appeal is, whether the erection of hoppers, conveyor boxes and steel curtains, is included in a contract for the erection of structural steel and iron used in the , construction of a malting kiln and boiler house which appellant had contracted to build and erect for the American Malting Company. The contract involved between appellant and appellee was in writing.

A trial before the County Court resulted in a verdict for the amount of appellee’s ,claim of $704.25, upon which, after the overruling of appellant’s motion for a new trial, a judgment was entered. The usual objections were made and exceptions preserved to the rulings of the court challenged in argument, and we are asked to review the record and reverse the judgment of the trial court because, it is insisted, error was committed in the admission of extrinsic evidence to interpret certain words used in the contract, in admitting parol evidence of conversations contemporaneous with the execution of the writing, in not instructing the jury to find a verdict for appellant, in giving instructions tendered by appellee against the objection of appellant, and in refusing to give other instructions asked by appellant, and in not granting a new trial.

Appellant was the contractor for the whole construction work, and appellee was a subcontractor under it for the erection and putting in position of the structural steel and iron work. J. F. Dornfeld was the architect for the American Malting Company, for whom the building was to be erected, and also the vice-president of appellant, a corporation.

It is first insisted in argument that, there being no direct proof of the authority of Dornfeld as vice-president of appellant to bind it, therefore the admissions of conversations of appellee and Snell with him were not binding on appellant. While we are not prepared to acquiesce in the correctness of this contention, we deem it sufficient to say that it will do no violence to legal principles to assume he had such authority in view of the fact that he was an officer of appellant and its main witness upon the trial, and that neither by his testimony nor that of any other witness is such authority denied or questioned. It is so apparent that both in the making of' the contract and in the doing of the work under it by appellee, Dornfeld was acting in the main for appellant, that all that was done by appellee under the contract was so done without the protest of any of appellant’s officers, to whom notice of the progress of the construction under the contract is imputable; therefore, if Dornfeld’s actions were not. authorized in the first instance, they must be held to have been ratified and acquiesced in by appellant, and consequently of binding force.

The-evidence of Snell and Volkmann is to the effect that the first bid upon the contract was $1,920. Dornfeld thereupon said that the bid was too high, and told Volkmann, in the presence of Snell, that he, Volkmann, had “nothing to do with the hoppers, or any of that small stuff, curtains or conveyor boxes.” After the making of this statement by Dornfeld, Volkmann reduced the bid to $1,650. This evidence is claimed to be inadmissible, as contrary to the plans and specifications upon which the bids were called for. In the light of the dispute as to what was called for by the contract, and the doubt cast upon the transaction by appellant’s contention, that the disputed items were embraced in the contract, it seems to us a conversation of this character would be pertinent and material as furnishing light as to what the real intentions of the parties were, and what was intended by them to be covered by the contract. Bepresentations thus made and fresh in the minds of the parties, in faith of which the contract was executed, would serve the purpose of putting the court and jury in the place which the parties occupied, and their attitude toward each other in relation to the subject-matter of the contract, and therefrom be better able to- judge of their intentions and put such construction upon the contract as such evidence might disclose was their intention at the time. City of Chicago v. Sexton, 115 Ill. 230.

In the Sexton case the city kept tracings and plans in the office of the department of public works. These differed materially from the originals set forth in the contract, but by the former Sexton figured and made his bid, and it was held, notwithstanding they were variant from those referred to in the contract as originals, they must be held as controlling the rights of the parties.

The drawings and specifications referred to in the Volkmann contract embraced all the work and material to be done and furnished by appellant under its contract with the American Malting Company, a portion only of which was covered by appellee’s contract. What was intended to be included in the terms “structural steel and iron,” cannot be gathered from an unexplained reading óf the contract by those not versed in such matters. Neither court nor jury, unaided by evidence of those familiar with these terms, could determine what was intended thereby. To the unskilled in steel and iron work these terms, unexplained, have no well-defined meaning.

The evidence as to what was structural steel and iron according to the usage, custom and understanding of that trade, was properly admitted. Such evidence had no tendency to vary or change any of the terms or conditions of the contract. It simply furnished a light by which the court and jury might interpret its terms and understand its meaning. American Insce. Co. v. Meyers, 118 Ill. App. 484; Irwin v. Powell, 188 Ill. 107.

Appellee’s evidence is to. the effect that the usage or custom controlling the meaning of the term structural steel and iron, is uniform among all the large foundries, and structural, steel works in Chicago, and that it includes all the parts made of steel and iron in a building which supports its framework, the walls and floors and the general superstructure of the building, including columns, beams, trusses and rafters. Appellant met this by countervailing proof, so that the settlement of this contention was, under the instructions, we think, properly left to the jury. The very contention of appellant that the hoppers, conveyor boxes and curtains form a part of the structural steel and iron of the malt house, was sufficient in itself at least to raise a doubt as to its correctness, especially so when confronted with the uncontradicted evidence that the hoppers were used to contain malt and the conveyors to convey malt, and the curtains used to divide air currents. It is evident that neither the hoppers, malt conveyors or curtains were parts of the permanent structure of the building, but were part of the operating machinery in the industry intended to be conducted in the building when completed. But as appellant injected a doubt about this into the controversy, it was the better course to prove, as was done, what was in fact regarded and understood by the usage and custom of the building trade, as structural steel and iron.

It might not be inappropriate here to suggest that appellant, having met the ruling of the court as to usage and custom, with proof in attempted denial, and allowed the dispute on this question to be submitted to the jury by thus joining issue thereon, the force of the original objection interposed to the court’s ruling is materially weakened, if not wholly destroyed. The evidence demonstrates that appellee’s attitude and contention that the hoppers, conveyors and curtains were extra work, as not being embraced in the contract, is consistent at all times. Dornfeld admits that as soon as these articles arrived, Volkmann made known his understanding of the extent of his contract by insisting that their installing was extra work, and not covered by the contract, and under this claim and with this insistence he proceeded to install the hoppers, conveyors and curtains, Dornfeld saying at the time that he did not care whether they were extra work or not, that appellee should proceed and put them in.

. Which one of these contradictory accounts was.the most worthy of credit, it was the province of the jury to determine. Whether they would give greater credence to Dornfeld or to Volkmann and Snell in their differing accounts of the transaction, and who was the most worthy of belief and which of the accounts was the most probable and consistent, was for the jury to determine. With the conclusion of the jury on this disputed point, after a careful perusal of the evidence, we are not inclined to disagree. To our minds, in weighing the evidence of these three witnesses, Dornfeld, Snell and Volkmann, and having in mind their relations to each other, their interests in the subject-matter of the controversy, the evident conflicting interests of Dornfeld, together with their actions throughout- the whole transaction, there is more consistency in the contention, supported by the evidence of Snell and Volkmann, than in that resting for its support in the evidence of Dornfeld, and in this we are in harmony with the conclusions of the jury.

After a critical examination of the instructions given and refused, about which appellant complains, we are not able to perceive any error injuriously affecting appellant’s rights, or which would justify a reversal of the judgment. While it is undoubtedly a correct legal proposition that a contract unambiguous in its terms cannot be varied, contradicted or modified by parol evidence of conversations before its execution, and that such a contract must be construed by the court as a question of law, and not left to the jury to determine the intention of the parties as a matter of fact, still, where, as in the case at bar, the language of the contract is ambiguous, involving the meaning of trade and professional terms used in it, then evidence as to such meaning or as to custom or usage of the particular trade controlling such meaning may be supplied by the evidence of those having knowledge of such usage or custom, and in such a condition what the parties intended by such ambiguous provision of the contract becomes and is a question of fact for the jury. And oftentimes to the attainment of justice in construing the meaning of a contract in controversy and determining what the parties intended thereby, evidence of what was said and done by the parties at and just prior to the making of the contract is admissible. It follows as a logical consequence, that the court properly refused all the instructions proffered by appellant which limited the jury in their consideration of the case to the contract, drawings and specifications, and excluded therefrom evidence as to the custom or usage of the building trade as to what was included in the terms structural steel and iron. Instruction No. 9 is vicious, in that it invades the exclusive province of the jury to determine the facts by telling them that “there is no evidence that Dornfeld had any authority to act for and on behalf of the defendant in regard thereto.” This ignored the admitted fact of Dornf eld’s official relationship to appellant and his actions in the matter in controversy on their behalf, which might in law be all-sufficient to raise a presumption of agency necessitating evidence on the part of appellant to rebut. Instruction No. 15, refused, is open to the same vice, in telling the jury that Dornfeld had no authority to act as agent of appellant, etc. The instructions of the court to the jury tendered by appellee, we think state the law correctly as applied to the facts in evidence.

If the hoppers, conveyors and curtains were not embraced in the contract, then the work done by appellee in installing them was extra, for which, if accepted by appellant, it was liable to pay on the basis of a quantum meruit, regardless of the fact as to whether or not Dornfeld had authority to bind it by ordering the work done.

All the essential grounds argued for a reversal have been sufficiently adverted to. The verdict and judgment seem to do justice betwen the contestants, and the record disclosing no reversible error, the judgment of the County Court is affirmed.

Affirmed.


text:
    H. Bostrom v. George Alexander.
    Gen. No, 13,590.

      Dismissal—what essential to allowance of motion to set aside. In order to entitle a party to an order setting aside a dismissal of his appeal from a justice of the peace, it must not only appear that he possessed a meritorious defense to the action, but also that such dismissal was not the result of his own negligence.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richakd S. Tuthill, Judge, presiding.
    Heard in this court at the March term, 190-7.
    Affirmed.
    Opinion filed January 27, 1908.

      O. C. Peterson, for appellant.
    F. A. Bingham, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

There is but one question controlling this case, viz.: Did the trial court abuse the discretion reposed in it by law in denying the motion of appellant to set aside the order dismissing his appeal.

Appellant perfected his appeal from a judgment of a Cook county justice of the peace. Appellee, in accordance with the directions of the statute, served notice to put said cause for trial upon the short cause calendar. The notice was served upon appellant in person. At the time of such service no attorney had entered appellant’s appearance upon the record. The cause was placed upon the short cause calendar pursuant to the notice, and when called for trial, appellant failing to appear either in person or by counsel, his appeal was dismissed with $15 statutory damages, the judgment in the justice court being for $150 and costs.

It is evident that service of notice upon any one else but appellant would have been ineffectual in view of the fact that no attorney, to the time of serving the notice, had appeared in the cause for him.

While appellant may have stated in his affidavit filed in support of his motion to vacate the order of dismissal, such facts which if proven would constitute a meritorious defense to appellee’s action, that was not sufficient to entitle him to have the order set aside. He must do more and go farther and show affirmatively that he was not negligent. Appellant was inexcusably negligent in not handing the notice served upon him to place the appeal upon the short cause calendar to his attorney. If he had done so, he could have interposed his defense when the case was called for trial. The affidavits failed to show the exercise of any diligence on the part of appellant. From the consequences of such lack of diligence the law affords no relief. Schultz v. Meiselbar, 144 Ill. 26.

It is therefore plain that in denying appellant’s motion to set aside the order of dismissal there was no abuse of judicial discretion.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Stephan Knecht v. Friedericke Boshold.
    Gen. No. 18,595.
    1. Negotiable instruments—what constitutes demand note. A note payable at an indefinite time is a demand note. A formal demand is not essential to enforcement of payment.
    2. Statute of Limitations—when begins to run against demand note. A note running for an indefinite time is in law a demand note, and is payable when the promise is made, irrespective of actual demand of payment, and against such a note the Statute of Limitations starts to run concurrently with the making of the promise.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed.
    Opinion filed January 27, 1908.
    Matthew J. Huss, for appellant.
    C. A. Williams, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This action is based upon the following written in- ■ strument:

“Kreuzlingon, September 10, 1887.
I herewith admit to have received of my sister Fredericks Knecht as a loan 400 marks (four hundred marks) and promise to pay back with interest at 4% at an (after) indefinite time.
Stephan Knecht.”

The cause was first tried before a Cook county justice of the peace, resulting in a judgment of $100 against appellant, who appealed to the Circuit Court, where the case was tried before the court without a jury. The Circuit Court found the issues in favor of appellee and entered judgment against appellant for $100. Exceptions were preserved to the court’s finding and judgment, and the record is before us for final review.

Appellant tendered twelve propositions of law, of which, without setting them out, it is sufficient- to say that eight of them in varying forms hold that the Statute of Limitations bars the action. These the court refused to hold as law governing the case, and marked them “refused.” The fourth and tenth propositions, he held, stated principles of law applicable and marked them “held”, as directed by statute.

The fourth proposition is as follows: “The court holds as a proposition of law that a note payable ‘after an indefinite time’ is in contemplation of law a note payable on demand.”

The tenth proposition has no application as affecting the conclusions to which we have arrived, and therefore will not be noticed.

Appellee admits in argument that the instrument sued upon is one payable on demand, and cites White v. Smith, 77 Ill. 351, in support of such admission. Under this admission it but remains for us to decide when the Statute of Limitations commenced, if at all; to run against the instrument sued on.

Section 16, chapter 83 R. S. contains the limitation which governs this case. It is “all actions on notes, written -contracts or other evidences of indebtedness in writing shall be commenced within ten years next after the cause of action accrued.”

It being admitted that the instrument sued upon is payable on demand, it is pertinent to inquire when a cause of action accrued thereon to appellee. She claims not until after a demand, and that the commencement of the suit is such demand. On the contrary appellant contends that money payable on demand is due when the promise to .pay is made; or, in other words, that a demand for payment is not a necessary prerequisite to maintaining an action. For it follows, by parity of reasoning, that if a demand is'essential, then, until it is made, the debt is not due, unless it may be conceded that the commencement of a suit fulfills the function of a demand, so that the debt would be due, in law, only from the time the suit to- enforce its payment was started.

The current of authority is uniform that a debt payable in money upon demand becomes due simultaneously with the making of the promise to pay, and that no actual demand for payment is needed. Bishop on Contracts, secs. 1354 and 1437.

Parsons in his work on Contracts, vol. 3, p. 99, announces the rule thus: “But a note payable on demand is due always, and the statute begins to run as soon as the note is made. * * * The statute begins to run whenever the plaintiff or creditor could bring his action.”

“Notes payable on demand become due and payable from their date, and consequently the statute runs from their date.” Wood on Limitations, 320.

“It has been held invariably that if a promissory note is made payable on demand the statute commences running from the date of the note, and no special demand is necessary.” Angel on Limitations, sec. 95.

This court held in Gormley v. Hartrey, 105 Ill. App. 629, that neither demand nor proof of a demand was necessary in an action upon a note payable on demand, and that on the contrary the duty to make a demand upon the holder and pay his note rested upon the maker. That a demand in such case only became necessary when it was desired to fix the liability of an indorser or a surety. Hunt v. Divine, 37 Ill. 137.

The only exception to this general and uniform rule is where a demand note is given in extension of a credit already existing. The purpose of this exception is evidently to enable the maker to avoid an unexpected suit for the credit he has been lulled into a reasonable expectation of having extended, without first being afforded an opportunity to pay it. In one case the relation of husband and wife existed between the parties, and it was obvious that failure to make a demand was for the purpose of, and in fact resulted in, one party obtaining an unfair, advantage over the other. In another case the demand was given for a past due premium on a life insurance policy, and without demanding payment of the note, the insurance company forfeited the policy. This action of the company, if sanctioned by the law, would have resulted in the perpetration of a gross injustice upon those beneficially interested in the policy, as the company not only refused to accept payment of the demand note, but of subsequent accruing premiums, insisting that the policy was forfeited. Bartlett v. Wright, 29 Ill. App. 339; Pulling v. Travellers Insurance Co., 55 ibid. 452.

No distinguishing feature in either of these cases is found in the case at bar.

Counsel for appellee asserts, with some apparent degree of confidence, inferable primarily from the fact of his omitting any argument in support of the contention, that Waldron, Adm’x v. Alexander, 35 Ill, App. 319, is decisive in favor of appellee. In this contention we are unable to concur. The appellee in the Waldron case was the servant of the intestate, continuously in his employ for more than eighteen years. The employer was, during all this time, the banker of the servant and kept her wages, from which, by agreement, she drew such sums from time to time as she needed or desired. The claim filed against the estate was for the balance due. Clearly, this is in no way analogous to the claim of appellee upon the instrument sued upon, admittedly payable upon demand. It was due simultaneously with its delivery. At the time of the institution of suit hereon, its collection was barred by that section of our Statute of Limitations first recited.

As appellee had no subsisting cause of action at the time of commencing this suit, the judgment of the Circuit Court is reversed without remanding.

Reversed.


text:
    M. E. Eggert v. E. L. Cleveland.
    Gen. No. 13,599.
    1. Corporations—what corporate property with respect to creditors. Held, under the facts of this case, the transfer of corporate property was colorable, and that the same was, with respect to creditors, the property of the corporation, subject to the payment of its debts.
    2. Corporations—what creates estoppel to deny corporate existence. Where parties interested have treated an organization as constituting a corporatioti, and have dealt with it as a corporation, and have so held it out to the world, an estoppel to deny its corporate existence arises.
    • 3. Finding of court—when not disturbed as against the evidence. A finding by the court upon the facts will not be reversed where the weight of the evidence clearly admissible is sufficient to sustain the finding complained of.
    4. “Bulk Goods Act”—when does not apply. Held, under the facts in this case, that what is known as the “Bulk Goods Act,” in force July 1, 1905, had no application.
    Trial of right of property. Appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    Frederick K. Warne and F. M. Williams, for appellant.
    Isaac E. Korn, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The trial in the County Court involved the title to certain property levied upon by a bailiff of the Municipal Court of Chicago under a judgment of appellee against the Independent Cracker Machine Co., a corporation, and was the statutory trial of the right of property.

The judgment was obtained by appellee before a late Cook county justice of the peace November 12, 1906, for $149.42. The trial was before the court, without the intervention of a jury, and the finding and judgment of the court was in favor of appellee. It is argued by appellant that the judgment is contrary to the weight of the evidence and that the court erred in not holding as the law a certain proposition, hereafter referred to, tendered by appellant and refused by the court.

Appellant Eggert claims to have bought the-property levied upon of one Robert McCall on December 22, 1906, taking a bill of sale therefor, which recited a consideration of $300 and other good and valuable considerations, which the proof shows was 720 acres of land in Wisconsin, and which was contracted to be conveyed to Eggert at an expressed consideration of $1; the actual value of which, if any it had, does not sufficiently appear. The land was never seen by Eggert or the title examined in his interest. The Independent Cracker Machine Company was incorporated under the laws of this state in the year 1895, to manufacture and sell cracker-making machines. Robert McCall was a director and the treasurer of the company and one of its incorporators. Anderson, another incorporator, worked for the company and at times acted as its president. McCall testifies that “two or three weeks after 1896” he sold out his interest to G-. L. Luce; that he continued to work for Luce as general manager until April 29, 1905, when he bought the property from Luce, who retired from the business. McCall testifies that he ran the business in the name of the Independent Cracker Machine Company, and that he made all purchases and sales in its name. The name of the company was continued on the door after the sale the same as before, and no change was ever made in the stationery used. McCall further testifies that he paid Luce $1,000 in cash and $4,000 in notes for the property which he bought from, him, and the bill of sale recites that the business sold was known as that of The Independent Cracker Machine Company. The lease of the premises was also in the name of this company. Eggert took no part in the running of the business, but one Bert McCall, a son of Robert McCall, who theretofore had been foreman, was kept in charge. The Independent Cracker Machine Company appeared by attorney in several suits—among others, one in the Superior Court to the January term, 1907, at the suit of appellee. The claim of the Beeves Pulley Company against The Independent Cracker Machine Company was paid through attorneys who had it for collection January 4 or 5, 1907, such claim being for goods sold it August 5, 1906. The company also had a bank account with the Prairie State Bank, which was closed December 22, 1906. Checks on this account were signed by Robert McCall as treasurer.

It is clear from the foregoing recital that the transactions by which The Independent Cracker Machine Company sought to divest itself of its property were colorable only and mere pretenses made in an attempt to avoid the payment of its debt to appellee and others of its trade creditors. There were no visible signs of change of ownership. The corporate name was preserved in the same manner after as before these pretended sales. The bank account' was kept in the same manner and the money checked out by the same person as treasurer. The dealings, in every way, both in sales and purchases, were the same. Goods were billed and accounts were paid in the name of The Independent Cracker Machine Company. The manageinent was also by the same person. As far as Eggert was concerned, the sale is baldly a subterfuge, of which the inadequacy of the consideration is strong presumptive evidence. Besides, Eggert knew nothing about the business and was not a man of capital seeking investments. He was a real estate agent.

It is not of controlling importance whether The Independent Cracker Machine Company was a corporation or not, or whether, if it ever was one, its charter had been forfeited by the state, or whether or not such forfeiture, if made, was as a matter of law effectual to divest it of its corporate character. All the parties interested treated it and dealt with it as a corporation, and so held it out to be to the world. This estops the parties from now denying it to be what they held it out to be, or to escape the payment of debts contracted in faith of the verities of the appearances so produced. Gay v. Kohlsaat, 80 Ill. App. 178.

During the time appellee gave credit to the company, it was, to all outward appearances, the proprietor of and conducting the business in the same manner as it did when first organized. The credit was evidently given in faith of the apparent ownership. Between such creditors and the persons responsible for permitting the deceptive condition to exist, the property will be treated as that of the debtor. The law in such cases protects the rights of innocent third parties. Orr v. Gilbert, 68 Ill. App. 429.

The possession of the property had not changed, and the policy of the law in this state does not encourage the owner to sell it and then continue in possession of it, as possession is one of the strongest evidences of title to personal property. In the condition of the evidence it is not necessary to our decision to determine the correctness or not of the court’s ruling-in the admission as evidence of conversations between the bailiff and McCall out of the presence of appellant after the levy was made. Excluding such testimony, there is an abundance of proof that, as to existing creditors, the sale to Eggert was fraudulent, and that the preceding sales between Luce and McCall were mere pretenses and not bona fide.

There being no jury, this court will not reverse the decision of the trial judge where the weight of the evidence, clearly admissible, is sufficient to sustain the finding complained of.

The court, we think, properly refused to hold that the statute in force July 1, 1905, colloquially known as the “Bulk Goods Act,” was applicable to the facts in this case. We cannot see that it has any application.

The judgment of the County Court is affirmed.

Affirmed.