text:
    Herman Livingston et al., Appellees, v. E. I. Gardner et al., Highway Commissioners, Appellants.
    1. Roads and bridges, § 45

      —when commissioners must maintain passageway. Under a contract made between a farm owner and the commissioners of highways, settling the damage for building a highway across the farm, by paying a stated sum and in addition thereto agreeing to erect a substantial, well built, firm and durable cattle or stock passageway for the convenience and use of the premises in question, the commissioners were bound to keep and maintain such passageway, of the character and dimensions specified in the contract, as long as the right of way secured under the contract was used by the public as a highway.
    2. Roads and bridges, § 45*—when construction of contract by parties may be considered. While it is true that contemporaneous construction of the terms of a contract by the parties to it is not always conclusive where public interests are concerned, it is always permissible and often greatly helpful to note what the parties understood it to mean, and therefore the action of county commissioners in keeping a stock passageway erected over a highway constructed over the farm in question in repair was considered in determining the question whether, under a contract settling the damages to the farm and agreeing to build such passageway, the commissioners were bound to maintain it as long as the highway was used by the public.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Frank Gillespie, for appellants; William R. Bach, of counsel.
    Livingston & Whitmore, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, und Cumulative Quarterly, sume topic und section number,

   Mr. Justice Graves

delivered the opinion of the court.

In 1889, James T. Walton then being the owner of 160 acres of land in Randolph township, McLean county, Illinois, entered into a contract with the then commissioners of highways of that township by which the damages to the land of the said Walton to be occasioned by the laying out of a public highway across the same were agreed upon. The part of that contract that is involved in this litigation is as follows:

“Now, therefore, it is agreed by and between the said James T. Walton and the said Highway Commissioners that the damages to be paid Walton on account of said road. shall be One Thousand (1000) Dollars, and in addition thereto the erection and construction by the commissioners, without expense to said Walton, of a cattle or stock passageway across the said highway at the most suitable point upon the same for the convenience and use of the premises of said Walton; which passageway shall be substantial, well built, firm and durable structure * * * .”

The $1,000 mentioned in the part of the contract quoted was paid, the passageway was built and for approximately 30 years has been maintained and kept in repair by the commissioners of highways and at one time it was practically rebuilt by them. The road was so laid out that 7 or 8 acres of Walton’s farm was on one side of it and the remainder was on the other side. The small portion of the Walton farm that was so cut off from the main farm was more suited for pasture than for tillage. The only stream of water on the farm was on this tract. In December, 1916, the passageway having become out of repair and in a condition in which the commissioners regarded it as unsafe, they notified appellees, who had become the owners of the Walton farm, to erect a good and substantial cattle crossing in the place of the old one. Appellees replied that it was appellants’ duty to repair the passageway and that they would hold them for any damage that might result from a failure to do so. After a time appellants tore out the passageway and' filled it up. While this was being done appellees filed a bill praying for an injunction to restrain appellants from filling the passageway and praying for a mandatory injunction requiring them to restore the same to a usable or serviceable condition. Before the injunction was obtained and served, the filling of the passageway was complete. When issues were joined on the bill the same was referred to the master in chancery who took and reported the evidence and his conclusions that appellees were entitled to the relief prayed for. Exceptions to the master’s report were overruled by the court and a decree was entered that appellants had no right to destroy the passageway, finding that it was their duty under the contract under which it was originally constructed to maintain it as long as the highway shall be used as such and ordered them to reconstruct it without delay in the same dimensions as are provided for in the contract between the said Walton and the then commissioners of highways. The commissioners of highways have appealed to this court and contend that the rights of the parties in this litigation depend entirely upon the contract in question; that such contract is unambiguous and expresses the intent of the parties to require the commissioners of highways to pay to Walton $1,000 and to construct the original passageway, but not to keep the same in repair.

The contention that the contract in question is so unambiguous as to warrant no construction as to its meaning is a misapprehension. It is out of too opposite construction of it that this litigation arises.

In construing contracts the prime object is to ascertain what the parties to it intended it should mean when it was entered into. In order to do that, the language employed in it, the meaning of words used, independently and in relation to each other, the end to be attained by it, the rights of the contracting parties in regard to the subject of it, what the parties to it have voluntarily done in and about performing or attempting to perform their respective parts of it as .well as the construction placed upon similiar contracts by the courts, are all proper matters to be considered and given weight.

When the contract in question here was drawn and executed the parties were dealing with each other in relation to correlated rights fixed by the public laws of the State. On the one hand the commissioners of highways had the right to acquire a right of way across the lands of Walton. On the other hand Walton was by law entitled not only to be compensated for his land taken and for any damage to his land not taken, but he was entitled to have a passageway across the proposed right of way for the purpose of letting his cattle and other domestic animals cross the road, provided he would construct the same at his own expense, which right was a perpetual right so long as the right of way was used by the public as a road. It was under those circumstances, when the commissioners were trying to secure the right of way over Walton’s land, and Walton was trying to get all out of the situation he could that this contract was made. No one denies that the parties had a right to make the contract, whether it amounts to a contract to construct the passageway only, or to a contract to construct and perpetually maintain it. Neither is it up to this court in this case to determine whether the consideration which the commissioners agreed to pay for the right of way was excessive or inadequate. The question before us in this case is what was the consideration that the commissioners agreed to pay.

The language employed in the contract to, designate what was to be paid is “One Thousand (1,000) Dollars, and in addition thereto the erection and construction by the commissioners, without expense to said Walton, of a cattle or stock passageway * * * which * * * shall be substantial, well built, firm mid' durable * * * .” The italics are ours. Similar provisions in contracts as well as in legislative enactments have been held to mean not only the original erection or construction of the thing referred to, but its permanent maintenance' as well. Thus where two adjoining towns .had agreed together to build and pursuant to such agreement had built a bridge over a stream dividing the two towns, it was held that both towns were bound to keep such bridge in repair and if it was destroyed were bound to rebuild it. People v. Highway Com’rs, 158 Ill. 197. Where by an act of the legislature of Indiana parties were authorized to construct a canal upon condition that they should build certain bridges, the courts of that State held they were bound to keep such bridges in repair. Board of Com’rs of Franklin County v. White Water Val. Canal Co., 2 Ind. 162. Again where an act of the legislature of New York used the words “be constructed” and “to construct” with reference to sewers, the courts of that State held that the works constructed must also be maintained. In re Fowler, 53 N. Y. 60. Again, where an act of the legislature authorized the issuance of bonds for the construction of bridges, the court held that the authority to construct bridges embraced the repair and maintenance of the same. Bell County v. Lightfoot, 104 Tex. 346, 138 S. W. 381. Again, where an act authorized the raising of money to construct a town dock, the United States court held that the power to construct included the power to repair. Town of Pelham v. Woolsey, 16 Fed. 418. Again, the words ‘erection, ” “ substantial, ’ ’ “firm” and “durable” each and all imply permanency.

While it is true that contemporaneous construction of the terms of a contract by the parties to it is not always conclusive where public interests are affected by it, Chesapeake & O. R. Co. v. Peed, 155 Ky. 696, it is always permissible and often greatly helpful to note what the parties who worded the contract understood it to mean, as exemplified by what they did in and about the performance of their obligations under it. In the case at bar the proof conclusively shows that the commissioners who signed the contract in question and who constructed the original passageway in pursuance of its provision, as well “as their successors in office for nearly 30 years, kept it in repair and at least once practically rebuilt it.-

While the contract could'easily have been couched in language more accurately expressing what was intended to be the rights and obligations of the respective parties to it, we have no doubt the construction given it by the circuit court was the correct one, and that under it appellants are bound to keep and maintain the passageway in question, of the character and dimensions specified in the contract so long as the right of way secured under the contract is used by the public as a highway. The decree of the circuit court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Bernard Horwich, Receiver, Defendant in Error, v. David Davis, Plaintiff in Error.
    1. Pleading, § 162

      —what is effect'of failure to file affidavit of merits. Where an affidavit of merits does not set up a good defense to the action and the affidavit is stricken and leave to file a further affidavit is not asked and none is on file, the proper practice is to enter judgment for plaintiff as in cases of default.
    2. Bills and notes, § 352*—when defense in action on note is insufficient. Whether or not an affidavit of merits in an action by a bank receiver to recover on a note, setting up that the note was without consideration and was given as an accommodation only at the request of the vice president of the payee bank, for the purpose of becoming assets of such payee so that the latter might withdraw other negotiable paper then held by it without reducing the assets below the minimum required by law and the rules of the bank examiner, and for the further purpose of having the same show as an asset in reports made by the payee bank and furnished to its customers and others, was of no concern to the said receiver, although it was alleged that the bank for which he was receiver obtained the note with knowledge of the facts.
    3. Bills and notes, § 352
      —when secret agreement as to note is no defense. An affidavit of merits in an action by a bank receiver upon a note did not set up a good defense which alleged that the note v^as executed in the performance of an illegal act to enable the payee to deceive the bank examiner and others, and that the note was without consideration and was given as an accommodation only , at the request of the vice president of the payee bank for the purpose of becoming assets of such payee so that the latter might withdraw other negotiable paper then held by it without reducing the assets below the minimum required by law and the rules of the bank examiner, and for the further purpose of having the same show as an asset in reports made by the payee bank and furnished to its customers and others, and alleged further that the bank for which plaintiff was receiver obtained the note with knowledge of' the facts and contrary to a secret agreement that the note should not be negotiated. ,
    4. Bills and notes, § 332*—when defense is not available. The maker of a note given for the purpose of assisting a fraud is estopped from denying its validity when it is sued on for the benefit of those to defraud whom it was made. •
    5. Bills and notes, § 260*—what agreement between original parties is not defense. The fact that a note reciting on its face that it was given for value received, that it is negotiable and payable without defalcation or discount, was negotiated contrary to a supposed secret agreement between the maker and payee, Was no defense against the receiver of a bank who in law was an innocent holder by indorsement before maturity.
    6. Action, § 17*—what defenses are not available. Courts will not listen to defenses based on the positively unlawful acts of a defendant.
    Error to the City Court of Litchfield; the Hon. H. C. Stuttle, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    George P. O’Brien and Lane, Dryer & Brown, for plaintiff in error.

      Charles LeRoy Brown and Paul McWilliams, for defendant in error.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

This suit was commenced by Bernard Horwich, as receiver of the Ashland-Twelfth State Bank, to recover on a promissory note signed by plaintiff in error and payable to the order of the LaSalle Street Trust & Savings Bank for $10,000, due in 6 months after date with interest from date at the rate of 6 per cent per annum, which by its terms was “for value received, negotiable and payable without defalcation and discount.” A declaration was filed, to which was attached an affidavit of claim and a copy of the note sued on. To this declaration plaintiff in error filed pleas and an affidavit, in which the defense relied on is stated to be, in substance, that the note sued on was without consideration and was given to the payee wholly for its accommodation at the request of one Charles B. Munday, then vice president, director and agent of the payee, to be held by the payee as- assets and for the purpose of its becoming assets of the payee so that the payee might withdraw other negotiable paper then held by it without reducing its assets below the minimum required by law and the rules of the bank examiner and for the further purpose of having the same show as an asset in the reports made by the payee bank and furnished by it to its customers, other banks and brokerage and investment companies, but with the agreement between the maker and payee thereof made by and through the said Charles B. Munday, its said vice president, that the said note should be held by the payee as its assets and should not be sold, transferred or assigned to or held by any other person or corporation, and that it was to draw no interest, notwithstanding the terms of the note to the contrary; that the said Charles B. Mun-day was also a director and the president and agent of the Ashland-Twelfth State Bank and that the said note was transferred by the payee to the said Ashland-Twelfth State Bank and accepted by said bank with full knowledge on the part of the officers and agents of both the payee and the said Ashland-Twelfth State Bank of the fact that the note was an accommodation note and of the terms and conditions upon which the same was given to and accepted by the payee; that the plaintiff, Bernard Horwich, brings this suit in a representative capacity and that the plaintiff paid no consideration for such note. It is nowhere in this affidavit stated that the Ashland-Twelfth State Bank did not pay full value for the said note or that at any time the LaSalle Street Bank was not solvent. This affidavit was stricken from the files of the trial court on motion of defendant in error on the ground that it set up no defense available by plaintiff in error against defendant in error suing as receiver of the Ashland-Twelfth State Bank; that the said affidavit shows that the note was executed in the performance of an illegal act with the intent to assist others in the performance of an illegal act; that defendant is estopped from interposing the defense set up in the affidavit, and that the affidavit does not show that defendant does not hold indemnity for the execution of the note. Thereupon plaintiff in error not asking leave to file any other or further affidavit of merits and there being none on file, the court on motion of defendant in error entered judgment as in cases of default in favor of defendant in error and against plaintiff in error for $12,925 and cost of suit. This was the proper practice provided the affidavit does not set up a good defense to the action. Firestone Tire & Rubber Co. v. Ginsburg, 285 Ill. 132-134.

No complaint is made that the amount of the judgment is too large if defendant in error is entitled to a judgment. An attempt was made by plaintiff in error to bring the case to this court by appeal but failed. After that appeal was dismissed and before bringing-this writ of error, the bill of exceptions, which was filed by plaintiff in error under the order of the court allowing the appeal, has been amended and defendant in error has made a motion to strike such amended bill of exceptions from the files of this court which motion this court took with the case. In view of the fact that the judgment will be affirmed, it is unnecessary to discuss the motion to dismiss further than to say it is without merit. It is therefore denied.

But one conclusion can be arrived at upon consideration of the facts set up in the affidavit in question, and that is that the purpose of the payee in requesting plaintiff in error to give the note in question and the purpose of plaintiff in error in giving it was to enable the payee to deceive the bank examiner, as well as the customers and creditors of the payee, existing and prospective, including brokerage and investment companies, and that it was made pursuant to an unlawful combination betweeni the maker and payee deceitfully to lead those dealing with the payee to believe it to have $10,000 worth of assets which in truth and in fact did not exist. Whether or not the facts set forth in the affidavit in question would constitute a defense in case the note was sued on by the payee therein or by the Ashland-Twelfth State Bank or some other assignee with full notice of the character of the note and what transpired between the maker and the payee at the time the same was executed and delivered, it is clear they do not do so when, as in this case, it is sued on by a receiver into whose hands it has come as an asset of such corporation to realize on it for 'the benefit of the creditors of such bank. The maker of a note" given for the purpose of assisting in perpetrating a fraud is estopped from denying its validity when it is sued on for the benefit of those to defraud whom it was made. Golden v. Cervenka, 278 Ill. 409; Niblack v. Farley, 286 Ill. 536; See also, Ruvenacht v. German-American Bank of Gridley, 287 Ill. 266.

It is no answer to say there was a secret agreement that the note should not be assigned or transferred and that this suit is brought by the receiver of an assignee of the same into whose hands it came in violation of such secret agreement. The note on its face recites that it was given for value received and that it is negotiable and payable without defalcation or discount with interest from date, and this supposed secret agreement is an attempt to alter the express terms of the note, and is not binding on an innocent holder of it by indorsement before maturity. Council Bluffs Iron Works v. Cuppey, 41 Iowa 104-109; 18 Corpus Juris, 454, note 21.

The receiver of a defunct bank when attempting to marshall the assets of such bank for the benefit of its creditors is in law an innocent holder of such assets. Neither is it available to plaintiff in error as a defense to the note in the hands of the receiver that the officers of the Ashland-Twelfth State Bank knew of the fraudulent character of the note and of the secret understanding as to its negotiability, because, if true, the purchase of it by that bank would be in fraud of the rights of its creditors made possible by the original fraud of plaintiff in error in giving the note for the purpose recited in the affidavit. To establish such a defense it would be necessary to prove "'that the note was given for the unlawful and fraudulent purposes already mentioned, and courts will not listen to defenses based on the positively unlawful acts of a defendant. Goodrich v. Tenney, 144 Ill. 422-430; Wright v. Cudahy, 168 Ill. 86; Pietsch v. Pietsch, 245 Ill. 454-459; Golden v. Cervenka, 278 Ill. 409; Niblack v. Farley, 286 Ill. 536.

The affidavit of merits that was stricken from the files by the trial court did not state a defense that was available to plaintiff in error against defendant in error in this case. The judgment of the trial court is therefore affirmed.

Judgment affirmed.


text:
    Logan A. Gridley et al., v. John H. Wood et al. Ora W. Gridley, Plaintiff in Error, v. John H. Wood, Defendant in Error.
    1. Appeal and error, § 1809

      —when disregard of mandate is error. The refusal of the trial court to enter a decree pursuant to a direction in the opinion of the Appellate Court that certain money should remain in the hands of a master in chancery, and its action directing the turning over of the money in a manner contrary to the direction of the Appellate Court was error, and in utter if not in wilful disregard of the views, expressed by such Appellate Court.
    2. Appeal and error, § 1809*—what is effect of mandate of Appeltate Court. When once a case has been determined by the Appellate Court and its mandate has gone forth, what that court there held in determining the questions involved is the law of that case, until, if ever, the same is reversed by the Supreme Court, and is binding on the parties, the trial court and the Appellate Court.
    3. Appeal and error, § 1818*—what is effect of mandate of reviewing court. The trial court has no right to enter any decree or order after the redocketing of a case except in conformity with the directions of the reviewing court.
    Error to the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded with directions.
    Opinion filed October 27, 1920.
    A. E. and R. C. DeMange, for plaintiff in error.
    Livingston & Whitmore, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.

This court in an opinion handed down in this case on July 9, 1919, 215 Ill. App. 473, determined on their merits all questions that are now presented by this record; reversed a decree of the circuit court that had been entered on February 16, 1918, and remanded the cause to that court with directions to enter a decree therein in accordance with the views expressed in that opinion.

The decree appealed from at that time provided, in part, that the master in chancery should turn over to one of the attorneys for defendant in error certain moneys that came into his hands from the sale of lands in a partition suit, on which plaintiff in error had a lien for the- payment of certain alimony that had theretofore been awarded to her, and that the said attorney should hold the same until the termination of certain litigation then pending. This court held that such order was erroneous in that respect and that the moneys should remain in the hands of the master in chancery until he was authorized by an order of distribution to pay the same to the parties to whom it belonged, and reversed the decree and remanded the cause with directions to the circuit court to enter a decree in conformity with the views in that opinion expressed. It now appears that notwithstanding the fact that an appeal was prayed for, allowed and perfected from that decree, the fund which the master was directed to turn over to the said attorney for defendant in error was in fact turned over to him pursuant to such decree. In due time the cause was redocketed and came up for hearing in the trial court on motion of plaintiff in error for a decree in conformity with the directions of this court. The circuit court refused to enter such decree, but did enter one in which it directed that the said moneys, so turned over by the master in chancery to the said attorney, be paid over by him to defendant in error,, instead of ordering the same returned to the master in chancery whom this court held was the one entitled to it. That was error.

When a case has once been determined by this court and its mandate has gone forth, what this court there held in determining the questions involved is the law in that case, until, if ever, the same is reversed by the Supreme Court, and is binding on the parties, the circuit court, and this court. Union Nat. Bank of Chicago v. Hines, 187 Ill. 109; Baum v. Hartmann, 238 Ill. 519; Wolkau v. Wolkau, 217 Ill. App. 471. It was the imperative duty of the circuit court when this case was again redoclteted in that court to follow the mandate of this court, not only in the respect above mentioned, but in all other respects. Washburn S Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 119 Ill. 30; Wadhams v. Gay, 83 Ill. 250; Pritchard v. Fruit, 214 Ill. App. 340; Wolkau v. Wolkau, supra. The trial court had no right to enter any decree after the case was redocketed except in conformity with the directions of this court. Spring Lake Drainage & Levee Dist. v. Stead, 263 Ill. 247; People v. Waite, 243 Ill. 156. It was the duty of the trial court to examine the opinion of this court and proceed in conformity with it. Pittsburg, C., C. & St. L. Ry. Co. v. Gage, 286 Ill. 213. The decree entered and now under consideration was at least in the respect above mentioned in utter if.not in wilful disregard of the views expressed by this court in its former opinion. The decree of the circuit court is therefore reversed and the cause is remanded to that court with directions to enter a decree in conformity with the views expressed in the former opinion of this court, and in this opinion, not only in regard to the matter above discussed, but in all other respects, and to enter such decree as of the date when it in fact is made, and not nunc pro tunc as of any former date.

Reversed and remanded with directions.


text:
    John T. West et al., Plaintiffs in Error, v. William Kenney, Defendant in Error.
    1. Sales, § 20

      —when writing is essential. Under Callaghan’s 1916 Stat. page 1495, par. 10021(7), a contract for the sale of corn of the value of $500 was not enforceable in the absence of proof that the buyer received some of the corn, or paid something on the contract, or that some note or memorandum of the contract was signed by the party to be charged or his agent.
    2. Appeal and error, § 1422*—when errors are harmless. Where the reviewing court was possessed of the conviction that the verdict for defendant was absolutely right on the facts, it would not have been warranted in reversing the judgment even if errors in actions and rulings of the trial court and in refusing instructions and in submitting a special interrogatory had been committed.
    Error to the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Schneider & Schneider, for plaintiffs in error.
    Cloud & Thompson, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.

This suit was brought to recover damages for the failure of defendant in error to deliver to plaintiffs in error 2,500 bushels of corn which plaintiffs in error claim they purchased of defendant in error at 95 cents per bushel to he delivered within a reasonable time. The defendant filed his plea of the general issue and two special pleas by which he sets up the defense that the value of the corn sold was more than $500; that no part of the grain was ever delivered; that nothing was ever paid on the contract and that no memorandum in writing of the contract of sale was signed by defendant or his agents. Replications to these special-pleas were filed in which it was averred that money was paid on the contract for the purchase of the corn in question.

The case was tried by a jury who found the issues in favor of the defendant, and judgment was entered against the plaintiff for costs and in bar of his action. The plaintiffs in the trial courts are plaintiffs in error here.

A careful consideration of all the evidence in the record fails to disclose any reason for holding that it does not amply support the verdict. On the contrary, we are satisfied from such consideration that the verdict was manifestly right. While no doubt exists that defendant in error contracted to sell the corn to plaintiffs in error as claimed by them, yet such contract is not enforceable in view of the amount involved without proof that the buyer received some of the corn so purchased or gave something in earnest to bind the contract or in part payment of the purchase price, or unless some note or memorandum of the contract was made and signed by the party to be charged or in his behalf. Callaghan’s 1916 Stat. page 1495, par. 10021 (7). The evidence in this record will not warrant a finding that any of those conditions exist.

Several actions and rulings of the court in giving and refusing instructions, and in submitting a special interrogatory to the jury to be answered “yes” or “no” have been complained of, none of which we regard as having any merit. Even if errors had been committed by the court in the respects complained of, it would not warrant us in reversing this judgment in view of the conviction we are possessed of that the verdict is absolutely right on the facts. Waggoner v. Wabash R. Co., 185 Ill. 154-162; Chicago & E. I. R. Co. v. Kneirim, 152 Ill. 458-467; Hall v. Sroufe, 52 Ill. 421; Hendrix v. Goldman, 163 Ill. App. 592; (Gruber v. Adams, 155 Ill. App. 110; Boys v. Bernhard Milling Co., 138 Ill. App. 88.

Finding no reversible error, the judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr, Justice Graves

text:
    Jacob Gilbert, Appellee, v. St. Louis, Springfield & Peoria Railroad, Appellant.
    1. Appeal and error, § 1652

      —when error in instruction is not cured. The giving of an instruction in a case of injury resulting from a collision between street cars, which in effect directed a verdict for plaintiff and ignored the defense of release, was reversible error, which the giving of correct instructions could not cure.
    2. Railroads, § 485*—when lessor and lessee are liable for injuries. When the track of a railroad is leased to another to use and the lessee by its negligent use causes injury to a third person, the lessor is jointly liable with the lessee for the damages caused thereby.
    3. Release, 21*—what is effect of release of one wrongdoer. Where a person having a joint right of action for negligence against two persons settles with and releases one of those jointly liable, both are released.
    Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed with finding of fact.
    Opinion filed October 27, 1920.
    Graham & Graham, for appellant; Burton & .Hamilton, of counsel.
    John G. Friedmeyer, for appellee.

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

   Mr, Justice Graves

delivered the opinion of the court.

Appellee was injured in a collision between a street car he was running and one that was being operated by appellant on the tracks of the Springfield Consolidated Railway Company under a lease from that company. He recovered a judgment against appellant for $1,200.

On the trial it was proven that appellee had executed and delivered a release under seal of all his damages sustained by reason of the collision in question for the expressed consideration' of $40. This release when introduced in evidence by its terms was a release of both appellant and the Springfield Consolidated Railway Company. Appellee admits that 'he executed and delivered a release to the Springfield Consolidated Railway Company for the consideration mentioned, but denies that the name of appellant was in it when it was signed by him. With the record in that shape appellee asked the court to give and the court gave the following instruction:

“The court instructs the jury that if you believe from a preponderance of all the evidence, that the plaintiff was in the exercise of reasonable care and caution for his own safety, before and at the time of the injury complained of in the declaration, or some count thereof, and that the defendant so negligently and carelessly operated its electric railroad car, as to run into, and collide with the street car in which' plaintiff was riding, and that the injuries sustained by the plaintiff, if any, were caused by the negligence of the defendant as charged in the declaration or some count thereof, then you should find the defendant guilty.”

This instruction directs a verdict and ignores the defense of release. It was reversible error to give that instruction, and one which the giving of correct instructions could not cure. Mooney v. City of Chicago, 239 Ill. 414-422, 423.

When the track of a railroad is leased by the owner to another to use and the lessee by his negligent use of the same causes injury to a third person, the lessor is jointly liable with the lessee for the damages caused thereby. West Chicago St. R. Co. v. Horne, 197 Ill. 250; Anderson v. West Chicago St. R. Co., 200 Ill. 332; Chicago & G. T. R. Co. v. Hart, 209 Ill. 414; Chicago & E. I. R. Co. v. Schmitz, 211 Ill. 446.

Where a person having a joint right of action for negligence against two persons settles with and releases one of those so jointly liable, both are released. City of Chicago v. Babcock, 143 Ill. 358; West Chicago St. Ry. Co. v. Piper, 165 Ill. 325; Wagner v. Chicago & A. R. Co., 265 Ill. 245. Whether the release offered in evidence was given the Springfield Consolidated Railway Company and appellant, as appellant claims, or to the Springfield Consolidated Railway Company alone, as appellee claims, is immaterial to the defense of release, as in either case both of such tort-feasors are discharged thereby from liability.

The judgment of the circuit court is reversed with a finding of fact to be incorporated in the judgment of this court that appellee executed and delivered to the Springfield Consolidated Railway Company his release in writing under seal, by the terms of which it was discharged from all liability on account of the injuries complained of, and that thereby appellant was also released and discharged from all-liability on account of such injuries.

Reversed with finding of fact.


text:
    William C. Bates et al., Executors, Appellees, v. Edward C. Lutz, Appellant.
    1. Executors and administrators, § 92

      —what is effect of proceedings to discover property. Under sections 81 and 82 of the Administration Act (J. & A. ¶¶ 130, 131), the representatives of an estate may hail into court persons in whose hands there is supposed to be property belonging to the estate and interrogate them, and if it is disclosed that they have property belonging to the estate to which they do not claim ownership, they may be compelled to surrender it; but if they claim ownership of such property the probate court has no jurisdiction under said sections to try the question of title or to determine to whom the property belongs.
    2. Executors and administrators, § 92

      —when jury trial is proper. When the question of title is involved in a proceeding under sections 81 and 82 of the Administration Act (J. & A. ¶¶ 130, 131), giving power to the probate court to hail into court persons in whose hands there is supposed to be property and interrogate them, the parties are entitled to have a jury, unless a trial by jury is waived, and there is no provision of law by which a jury can be called under such sections.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded with directions.
    Opinion filed October 27, 1920.
    C. Everett Smith and Covet & Woods, for appellant.
    Harold F. Trapp and Miller & Miller, for appellees.

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellees as executors of the last will and testament of Erastus W. Bates, deceased, filed a petition in the probate court of Logan county under sections 81 and 82 of the Administration Act (J. & A. ¶¶ 130, 131), in which it is averred that the petitioners believe that appellant has in his possession a large number of shares of the capital stock of certain corporations that stand in his name on the books of the corporations, but which in fact belonged to the deceased at the time of his death and now belong to his estate, and that appellant wrongfully refuses to turn the same over to the estate. £he prayer of the petition is that appellant be required to assign all of such shares to appellees as executors of said estate.

Appellant by his answer set up title to the shares of stock in himself and denies the jurisdiction of the probate court under sections 81 and 82 of the Administration Act to determine to whom such shares of stock belong. On appeal from the probate court the circuit court found the issues for the petitioners and that the shares of stock in question were the property of Erastus W. Bates, deceased, in his lifetime, and that they now belong to the estate, and ordered that the same be transferred to the estate.

The only question raised or argued in this court is whether the probate court and the circuit court on appeal from the probate court have any jurisdiction to try and determine the question of title to this property in a proceeding begun and conducted under sections 81 and 82 of the Administration Act.

In support of the affirmative of that proposition, appellees have cited numerous cases, all of which we have examined. What is really held in those cases may be digested as follows:

In Bertolet v. Stoner, 164 Ill. App. 605, which was an action under sections 81 and 82 . of “the Administration Act by an administrator for the recovery of a certificate of deposit from an adopted daughter of the deceased of whose estate appellant was administrator, the court tried the title to the certificate and found it was the property of the adopted daughter and the Appellate Court held that the trial court had ample authority in that proceeding to try the title and enter the order appealed from.

In Wade v. Pritchard, 69 Ill. 279, a proceeding was begun by citation under section 90 of the Statute of Wills to compel appellant to surrender some promissory notes to the administrator of an estate as the property of the estate. Section 90 of the Statute of Wills is not the statute under which the proceeding in this case was instituted. True, sections 81 and 82 of the Administration Act as adopted in 1872 and as amended in 1873 were undoubtedly passed as a substitute for section 90 of the Statute of Wills, but these provisions are not identical with section 90 of the Statute of Wills and are so far dissimilar as to make the construction of the one of doubtful aid in, the construction of the others. If the construction of section 90 of the Statute of Wills is to be considered helpful in the construction of the statute here under consideration, then it should be noted that in the case of Wade v. Pritchard the court says, with reference to such section 90: “The remedy was cumulative to those (actions of detinue, trover and replevin), and the only change it intended to introduce from an ordinary trial involving the ownership of property was to enable the court to compel the person charged with having the property, to discover, on oath, whether he had .property in his possession.” Not to try the title of the property, but whether he had it in his possession.

In Dinsmoor v. Bressler, 164 Ill. 211, an attorney had been employed by an administrator to collect moneys, and had collected the same but refused to turn the same over to the administrator. In a proceeding under sections 81 and 82 of the Administration Act the attorney was cited into court and an order was eventually entered committing him to jail for failure to turn the same over. The Supreme Court reversed the order and held that the summary means provided by sections 81 and 82 of the Administration Act could not be availed of to collect moneys that had come into the hands of an attorney of the administrator, and that those sections did not provide a means of trying contested rights or title between the executor and others; that such a proceeding would be in violation of the constitutional rights of the parties to have a jury trial of controverted questions. The court there said, it may be true that an attorney who had collected money for the deceased in his lifetime and had embezzled the same may be proceeded against under sections 81 and 82. That statement was not necessary to the determination of the questions before the court and must be regarded as obiter dicta.

In Martin v. Martin, 174 Ill. 371, the proceeding was begun by petition by several executors to have the court try and determine who was the real owner of. certain notes held by one of them under claim of ownership, hut which his coexecutors claimed belonged to the estate. What is said in the opinion has no bearing on the question involved in the case at bar.

In Adams v. Adams, 181 Ill. 210, the question whether a trial of title to property could be had under sections 81 and 82 of the Administration Act is not involved.

In Taylor v. Harmison, 79 Ill. App. 380, while the title to property was adjudicated between persons interested in the estate and third persons upon a petition filed under sections 81 and 82 of the Administration Act, the controverted question was whether there had been a valid gift of the property in question by the deceased to the respondent in the petition. The question of jurisdiction was not raised, adjudicated or considered. This case is, therefore, not authority on those questions.

In Rinard v. Lasley, 143 Ill. App. 450, the same condition is found.

In Wahl v. Jacobs, 146 Ill. App. 71, the court expressly holds that the probate court has power to adjudicate titles in a proceeding begun under sections 81 and 82 of the Administration Act, and cites in support of such holding the case of Wade v. Pritchard, 69 Ill. 279, which, as already suggested, arose under section 90 of the Statute of Wills instead of section 81 of the Administration Act.

In Day v. Bullen, 226 Ill. 72, a petition was filed by a beneficiary under the will of Robert F. Bullen seeking to have a special administrator appointed to sue the executrix of the estate of the said Robert F. Bullen to recover for the estate certain- shares of the capital stock of a corporation which the petitioners claimed belonged to the estate, but-which the executrix refused to schedule as such, or, in the alternative, to have the said executrix cited into court and ordered to list the said shares^ of stock as the property of the testator. The prayer of the petition was granted and Edwin C. Day was appointed as such special administrator to sue in law or chancery for the recovery of the assets of the estate in the hands of the executrix and not listed as assets of the estate. A bill in chancery was filed for that purpose. To that bill the executrix in her individual capacity filed her answer claiming the shares of stock -as her own. The court found the issues for her and dismissed the bill. On appeal to the Supreme Court the order of the circuit court dismissing the bill was affirmed, and the court took occasion in referring to sections 81 and 82 of the Administration Act to say: “Those sections of the statute authorize the probate court, upon a statement under oath being made by any person interested in the estate that any person has in his possession or has concealed or embezzled any goods, chattels, moneys or effects belonging to any deceased person, to require such person charged to appear before the court for a hearing, and to make such order in the premises as the case may require.” The language there used is quite general and might be construed by itself as a holding that under those sections a probate court has jurisdiction to try title to property between the representatives of an estate and third persons, but such language must be construed and understood in connection with the facts in the case the court had under consideration. The facts that the court had under consideration when that language was used were that an executrix was charged with having in her possession and refusing to list as property of the estate stocks that in fact belonged to it. Under that state of facts it is conceded those sections provide ample jurisdiction in the probate court to determine, adjudicate and enforce the rights of the parties.

In Jennings v. Neville, 180 Ill. 270, the question litigated was whether a certain' state of facts constituted a good gift of certain personal properly inter vivos. The question of the power of the probate court to try titles in a proceeding instituted under sections 81 and 82 of the Administration Act was not considered by the court.

In Harwood v. Harwood, 193 Ill. App. 514, the action was against an executor of an estate to compel him to schedule certain property mentioned as assets of the estate. There is no question of title involved and the opinion in no way concerns the right of the court to try titles of property between the estate and third persons, and is, therefore, not authority in the case at bar.

In Maple v. Lawhun, 200 Ill. App. 258, there is an abstract opinion from which it appears that a proceeding under section 81 of the Administration Act was begun for the purpose of discovery of concealed effects and not for the purpose of trying title to the property in question, and is not in point on that question.

Martin v. Martin, 170 Ill. 18, was a proceeding against an executrix to compel her to surrender to the estate of which she was one of the executors, and list as property of the estate certain bonds, notes, mortgages, etc., in her possession which it was claimed belonged to the estate. The court there holds that the title to property between the representatives of estates and third persons cannot be tried or determined in proceedings conducted under the provisions of sections 81 and 82 of the Administration Act, but that executors might in such a proceeding be ordered to deliver up property of the estate held by them and the order enforced by imprisonment if necessary.

Of all the cases relied on by appellee but two of them' sustain his position, viz., Bertolet v. Stoner, 164 Ill. App. 605, and Wahl v. Jacobs, 146 Ill. App. 71; while three of them, viz., Dinsmoor v. Bressler, 164 Ill. 211, Day v. Bullen, 226 Ill. 72, and Martin v. Martin, 170 Ill. 18, expressly hold that the probate court cannot in proceedings like the one at bar try titles, and the balance of the cases cited are silent on that question.

On the other hand, in the late case of Moore v. Brandenburg, 248 Ill. 232, cited by appellant, the Bressler and the Martin cases are reviewed, sustained and followed, and other cases are cited to the same effect. The Brandenburg case is, so far as we are aware, the last expression of the Supreme Court on the subject, and we regard it as conclusive as to the question here involved.

After a careful consideration of all the authorities cited by the respective parties, we conclude that the representatives of an estate may, under the provisions of sections 81 and 82 of the Administration Act hale into the probate court persons in whose hands there is supposed to be property belonging to the estate and interrogate them in'regard to that subject, and if it is disclosed that they have. property in their hands belonging to such estate to which they do not lay claim of ownership, such persons may be compelled in that proceeding to surrender the same to the representatives of the estate; but if such persons do claim to be the owners of the property-in controversy the probate court has no jurisdiction in proceedings conducted under the sections referred to, to try the question of title or to determine to whom it belongs. When the question of title is involved the parties are entitled to have the facts determined by a jury. Any proceeding by which that question should be determined without a jury would be an infringement of the constitutional rights of the parties, unless trial by jury was waived, and there is no provision of law by which a jury can be called in proceedings under the sections referred to.

In this case the only question in controversy was as to who was the owner of the property in question. It follows that it was error for the trial court to try the issues involved in the then pending proceeding and enter the decree appealed from. The decree of the circuit court is therefore reversed, and as there is no discovery sought but only the question of title to the property in controversy is involved, the cause will be remanded with directions to dismiss the petition.

Reversed and remanded with directions.


text:
    Chicago & Alton Railway Company, Defendant in Error, v. L. E. Slick & Company et al. Lee Rust, Plaintiff in Error.
    1. Indemnity, § 21

      —when defense of estoppel is not available. The principle of equitable estoppel had no application in favor of the surety on a bond given to the plaintiff railroad company to insure it against loss by reason of the surrender of bills of lading to the principal in the bond without paying for the shipment, where the only defense was that an agent of plaintiff had stated to defendant on a day named that there were no bills of lading upon which deliveries had been made, when in fact there were two with sight drafts attached that had not been settled for and which plaintiff was liable for under the bond, and where there was dispute as to what the agent did say, and in any event there was no showing of any injury to plaintiff.

      2. Estoppel, § 42

      —what is essential to give rise to estoppel. No equitable estoppel arises in favor of a surety from a misstatement of facts as to liability unless such surety is shown to have suffered by reason thereof.
    Error to the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Stone & Dick, for plaintiff in error..
    Bracken & Young and W. B. Leach, for defendant in error; Silas H. Strawn, of counsel.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

L. E. Slick & Company were in the grain, flour and feed business at Bloomington. Defendant in error is a common carrier having a line of road running through that place. Some of the goods purchased by Slick & Company in carload lots were shipped to them over, the lines of defendant in error. When goods were consigned to it in carload lots over the lines of defendant in error,, it was supposed to hold the same until the bill of lading for such car was surrendered. Some of the shippers had the habit of attaching a sight draft to the bill of lading and sending the two to a bank, the bank to hold the bill of lading until the sight draft was paid. When that was done, the bill of lading was delivered to Slick & Company, consignee, who in turn delivered it to defendant in error and the carload of goods was surrendered to Slick & Company. Sometimes it was desirable to have the goods turned over without the surrender of the bill of lading. That course would render the railroad company liable to the shipper for the value of the shipment in case Slick & Company did not pay for the same. In order to protect the railroad company from loss in case a load of goods so delivered was not paid for by Slick & Company, that company gave to it a bond conditioned that Slick & Company should hold the railroad harmless in case a carload of goods should be delivered to them without the surrender of the bill of lading. This bond was by its terms to cover all such deliveries up to July 1, 1918. L. E. Slick and plaintiff in error, Lee Bust, signed this bond as sureties. In the month of June, 1918 two cars of goods came over the lines of defendant in error and were delivered to Slick & Company without the surrender of the bill of lading. These two carloads of goods were not paid for by Slick & Company although sight drafts were sent with the bills of lading and were presented to Slick & Company in due course. One of .these carloads of goods was billed at $3,500 and was delivered on June 10, 1918, and the other, billed at $4,284, was delivered on June 24, 1918. Defendant in error began this suit on the bond to recover for the amount of the two sight drafts mentioned, and recovered judgment thereon for $8,250.07.

The only defense interposed by plaintiff in error to this suit was that of equitable estoppel. He insists that one Murray, the agent of defendant in error, told him on July 6 or 7, 1918, that there were no bills of lading upon which deliveries had been made for which plaintiff in error was liable, and that there was no further liability on the bond, when in fact there were two bills of lading with sight drafts attached that had not been settled for, and for which plaintiff in error was by the terms of his bond liable. It was on those two bills of lading that the judgment sought to be reversed was based.

Plaintiff in error claims that when the statement referred to was made by Murray, he, plaintiff in error, was in a position, if he had known the real facts, to have protected himself from loss by reason of the fact that at that time and for a few days thereafter there was in his bank a sufficient sum of money belonging to L. E. Slick & Company, subject to check, to more than cover the amount of the two sight drafts in question.

Murray denies telling plaintiff in error that there were no outstanding bills of lading for which he was liable, but says he told him he did not “find any.” He also denies telling him anything about being released from liability. It is conceded that the only contest between plaintiff in error-Bust and defendant in error in this suit is upon the question of discharge of plaintiff in error from liability by reason of the statements claimed to have been made by Murray above referred to. It is not claimed that those statements were wilfully untrue or corruptly made.

The proof in the record strongly tends to show that between June 24, .1918 and July 23, 1918, plaintiff in error had several conversations in regard to these particular bills of lading with persons in charge of the office of Slick & Company, and knew of the fact that the sight drafts accompanying those bills of lading were outstanding; that one of those sight drafts was held by the bank of which he was cashier; that in one of those conversations plaintiff in error told L. E. Slick that Murray, the agent of defendant in error, had said that all of the bills of lading of the Chicago & Alton had been taken up; that both Mr. Slick and Walter Bust, the son of plaintiff in error, then told him there were two or three of such bills still unpaid. If this claimed conversation between plaintiff in error and Murray took place at all, which Murray denies, it occurred just before the time it was repeated by plaintiff in error to Slick as stated above; and that a day or two later plaintiff in error was again at the office of Slick & Company and was shown a memorandum slip of outstanding bills of lading which included the two for which judgment in this case was rendered.

It follows that even if Murray did tell plaintiff in error there were no unpaid bills of Slick & Company for which he was liable under his bond, plaintiff in error received notice from Slick & Company practically at once thereafter, and before the circumstances under which he claims he was in a position to protect himself had changed, that such statement was not true.

The record fails to show that even if plaintiff in error was misinformed as to outstanding claims, he was in any way injured thereby. No equitable estoppel arises from a misstatement of facts as to liability unless the surety is shown to have suffered by reason thereof. Flower v. Elwood, 66 Ill. 438. In the case of People v. Brown, 67 Ill. 435, the Supreme Court has gone even further. In that case, speaking of the question of equitable estoppel, the court says: “The doctrine on this subject we understand to be, that, when a person, by his words or conduct, voluntarily causes another to believe in the existence of a certain state of things and induces him to act upon that belief, so as to change his previous position, he will be estopped to aver against the latter a different state of things. Text-writers denominate this estoppel by conduct, in order to which all of the following elements must be present: (1) There must have been a representation concerning material facts. (2) The representation must have been made with knowledge of the facts. (3) The party to whom it was made must have been ignorant of the truth of the matter. (4) It must have been made with the intention it should be acted upon. (5) It must have been acted upon. In this connection, it is said, the representation here spoken of is one external to, and not necessarily implied in, the transaction itself, and fraud, or something tantamount thereto, is now the distinctive character of this kind of estoppel. Bigelow on Estoppel, introduction, p. 60.”

In the case at bar, the representations made by Murray, if they were made, are not shown to have been made with a knowledge of the facts, nor is there anything in this record to show that plaintiff in error acted to his detriment upon any information he claims to have received from Murray.

In the case of Holcomb v. Boynton, 151 Ill. 294, the court says: “As we understand the doctrine of estoppel in pais, it is based upon a fraudulent purpose and a fraudulent result. * * * The essential elements are: misrepresentation or concealment of material facts, ignorance of the truth of the matter by the party to whom the representations were made, and reliance upon his part in acting upon the representations.” In Knapp v. Jones, 143 Ill. 375, the court quotes with approval from Davidson v. Young, 38 Ill. 152, the following: “If the element of fraud is wanting, there is no estoppel, as, if both parties were equally cognizant of the facts, and the declaration or silence of the one party produced no change in the conduct of the other, he acting solely upon his own judgment. There must be deception, and change of conduct in consequence, in order to estop a party from showing the truth.” The facts disclosed by the evidence in this record do not constitute an equitable estoppel.

Plaintiff in error complains that the court refused several instructions requested by him. The number of instructions offered by each side was inexcusably large; plaintiff in error handed up twenty-two instructions, one of them covering four pages of typewriting, in itself quite an exhaustive treatise on the law of estoppel, and defendant in error handed up twenty-three. In this case, where it is conceded the only question in controversy was whether the facts showed an equitable estoppel, the court would have been justified in refusing to consider any of these instructions and in requiring counsel to sort out and withdraw half of them and return the balance for the court’s consideration. The practice of each party to a suit drawing up and handing to the court to be culled out a lot of inconsistent instructions on each side of some phase of every issue involved in the case so that whichever instruction is given by the court, one presented by the same party containing a contradictory and conflicting theory and statement must be refused, is wholly unwarranted and should not be tolerated. This screed is only mildly applicable to the case at bar, but is the culmination of the composite experiences of years which the writer feels impelled to record. In this case, plaintiff in error handed to the court, with the request that they be marked “given,” instructions covering-two theories of the law of equitable estoppel: one of those theories was that if one secured by a bond or obligation induces a surety thereon to believe that such surety is released and discharged from any further liability thereon, and was thereby lulled into security and induced to refrain from taking, or was caused to fail to take, such steps' as might have protected him from loss, then such surety is discharged from liability to the extent he has been damnified by the course he has been so induced to pursue. Two instructions presented by plaintiff in error embodying this theory were given by the court as tendered. Other instructions were tendered by him announcing in varying verbiage the law to be that if a surety was so lulled into security and caused to refrain from taking steps to protect himself against loss, then the obligee would be estopped from suing on the obligation regardless of whether the surety was damnified thereby or not. These the court refused.

Where a party induces the court to give' to the jury an instruction on one theory of the law, he cannot complain that the court refused to give other instructions asked by him announcing a contrary and conflicting theory.

Other complaints are made for the giving and refusing of other instructions, but they are without merit.

There was a plea of the general issue filed by L. E. Slick & Company, a codefendant with plaintiff in error in this case, and was part of the files at the time of the trial. That plea put defendant in error to his proof. It appears from the abstract that after such proof was introduced plaintiff in error Bust for the first time claimed the opening and close of the case, on the theory that the only contested issue in the case was that made on the plea of estoppel filed by him. The fact that there was an issue in the case that required defendant in error to introduce proof, although it was formal and was made on the plea of a codefendant of plaintiff in error, was sufficient to give to defendant in error the right to the opening and close of the case. McReynolds v. Burlington & O. River Ry. Co., 106 Ill. 152. Counsel for plaintiff in error suggest that while it does not appear in the abstract, the fact is and the record will show that their claim to the right of opening and closing the case was made before any evidence was introduced: A party seeking the reversal of a judgment for error must show by his abstract of the record all the things necessary to disclose the error complained of. A court of review will search the record for reasons to affirm a judgment but will never do so to find reasons for reversing it.

While Walter Bust, a son of plaintiff in error, was on the stand and was being interrogated in reference to certain drafts and memoranda in an attempt to identify them and render them admissible in evidence, many objections were interposed by plaintiff in error, some of which were overruled. Some of the answers of the witness made to some of the questions that were objected to were afterwards excluded froin the consideration of the jury. We are unable to see any reversible error in the rulings of the court or how any inference adverse to plaintiff in error could have been drawn by the jury, from it or any influence exerted over them by it to -the detriment of plaintiff in error. The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Charles Boyd Eshelman, Appellee, v. James Rawalt, Appellant.
    1. Appeal and error, § 1421
      —when error is harmless. The rule that errors in rulings on the admission or exclusion of evidence or the giving, modifying or refusing of instructions will not cause a reversal of the judgment, where it is manifest that justice has been done and defendant has been deprived of no substantial right guaranteed him by law, applied in a'case for alienation of the affection of plaintiff’s wife, where defendant did not even deny the charges made against him in the declaration.
    2. Husband and wipe, § 281*—when verdict for alienation is not excessive. A verdict for $13,500 was not excessive in an action for alienation of the affections of plaintiff’s wife, as the jury in such cases may give punitive as well as compensatory damages
    3. Husband and wife, § 278*—what may he considered in ascertaining damages for alienation. In an action for the alienation of the affections of plaintiff’s wife, who was the mother of three children, the eldest 13 years old, the mental anguish of the husband, the loss of the affection of the wife as well as the loss of the services and society of the wife may be taken into consideration by the jury in fixing damages; and the husband was entitled to substantial damages even if no resulting expense or loss of service was shown, and the verdict for $13,500 was not interfered with, where the court could not say that the jury were influenced by passion, prejudice or other consideration.
    4. Appeal and error, § 1514*—when misconduct of counsel is harmless. Misconduct of counsel in an action for the alienation of the affections of plaintiff’s wife, although condemned, was not sufficient to warrant the reversal of the judgment, where defendant’s conduct was reprehensible in the extreme, and it was manifest that justice was done.
    Appeal from the Circuit Court of Fulton county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    M. P. Rice and Harvey H. Atherton, for appellant.
    W. S. Jewell, Claude E. Chiperfield and Burnett M. Chiperfield, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellee obtained a judgment against appellant for $13,500 in the circuit court of Fulton county in an action of trespass on the case. It was averred in the declaration that appellant alienated the affections of the wife of appellee from him and debauched and carnally knew her. The proof establishes beyond doubt the truth of all the charges laid against appellant in the declaration. No jury could, upon the undisputed facts in this case, have failed to find appellant guilty. Appellant was in court during the trial and was called to the stand by the attorneys for appellee and gave testimony on some minor issue, but he nowhere took the stand to deny the charges made against him in the declaration. Appellant has argued his reasons why this judgment should be reversed under four heads, namely: “Errors in admission of evidence,” “Error in instruction,” “The verdict is excessive” and “Improper conduct of counsel.”

The record in this case contains more than 400 pages. There are 104 pages in the abstract. There were 45 instructions handed up to the court to pass upon. Of these, 31 were given after some of them had been modified and 14 of them were refused. Numerous criticisms of the rulings of the court on the admission of evidence and the giving and refusing of instructions have been made, making a careful study of this entire record necessary. It is manifestly impracticable to discuss those criticisms seriatim in this opinion. It is enough to say, we have given careful consideration to each point made and find that in the main they are hypercritical and without merit, and that such as might be regarded as substantial in some,s cases are harmless in this case.

It is manifest that substantial justice has been done and that appellant has been deprived of no substantial right guaranteed him by law. Under that state of facts, errors in rulings on the admission or exclusion of evidence or the giving, modifying or refusing of instructions will not cause a reversal of the judgment. Pridmore v. Chicago, R. I. & P. Ry. Co., 275 Ill. 386-396 [14 N. C. C. A. 313]; City of Chicago v. Jackson, 196 Ill. 496-511; Hewitt v. Jones, 72 ill. 218; Beseler v. Stephani, 71 Ill. 400; Pahlman v. King, 49 Ill. 266; Boynton v. Holmes, 38 Ill. 59; McConnel v. Kibbe, 33 Ill. 175; Newkirk v. Cone, 18 Ill. 449; Convert v. Bishop & Babcock Co., 152 Ill. App. 516-521; Kluge v. Crank, 127 Ill. App. 39; Henrietta Coal Co. v. Martin, 122 Ill. App. 354.

In considering whether the amount of the verdict and judgment is excessive it must be remembered that it was within the power of the jury to give punitive as well as compensatory damages. The purpose in allowing punitive damages is to punish the wrongdoer and give warning to others similarly inclined that may deter them from committing like offenses. Browning v. Jones, 52 Ill. App. 597. In,cases of this character the damages to be awarded are not limited to the exact amount of pecuniary loss sustained by the husband. In such cases mental anguish of the husband, and loss of the affection of the wife, as well as the loss of her services and society including conjugal relations, may be taken into consideration by the jury in fixing the amount of damages to be awarded to the husband; and he is entitled to substantial damages even if no resulting expense or loss of service is shown. Shannon v. Swanson, 208 Ill. 52-55. There is no exact rule by which such damages, either compensatory' or punitive can be admeasured. When such damages have been fixed by a jury, their verdict should be conclusive on that question, unless the court can say they were influenced by passion, prejudice or other improper consideration. There is nothing discoverable in this case to indicate that the jury were influenced by any improper motive in fixing the damages. Neither does the amount of the damages fixed by them appear to be disproportionate to the damages sustained by appellee. The proofs tend to show that the wife of appellee, the mother of his three children, the oldest of which was but 13 years of age, had previous to her meeting with and infatuation for appellant, been a virtuous, affectionate wife and mother, enjoying the society and association of her husband, keeping his house and performing her part of the family duties and enjoying the respect' of the community in which she lived. Since her debauchery by appellant she has lost her affection for her husband as well as her interest in her home and family duties, and repels her husband’s advances. Apparently there is no prospect of this husband and wife becoming rehabilitated in the respect for and confidence and mutual interest in each other that heretofore existed. Appellee was assuredly entitled to a liberal allowance as compensatory damages.

On the question of punitive damages, the jury had a right to consider the conduct of appellant in this transaction as shown by the evidence. Not only did he debauch the wife of appellee, but when he was overtaken in his infamy he attempted to forestall all attempts to induce her to return to her husband and to a virtuous and upright life, and by words and physical force undertook to induce her to continue in his company, and even after she had returned to her home, appellant wrote a letter to a relative of appellee’s wife in which he said, “Please tell Rosa that I am lonesome and have not changed a bit in my feelings.” While this letter was written after the return of appellee’s wife to his home, it serves to characterize the relations between appellant and the woman while they were together, and the impulses controlling him in seeking those relations. The conduct of appellant was reprehensible in the extreme and showed him to be regardless of the laws of God and man, and the rules of society; and the jury could not help but recognize his utter abandonment to lust and depravity. With these thing’s in mind the jury fixed the damages appellee should recover. We do not know how much they regarded as compensatory and how much as punitive damages. Whatever may have been the apportionment made by the jury between the two kinds of damages, we are satisfied the total amount fixed is well within the rules of justice and the rights of the parties under the law and the facts in this case.

Appellant complains bitterly of the conduct of one of the counsel for appellee in the trial of this cause in the circuit court. It is difficult for this court to place itself in the position of the trial court and see with the eyes and hear with the ears of that court the running fusillade of interruptions, contradictions, cross-talk and side remarks that the record shows was indulged in over repeated objections of counsel for appellant, and persisted in over the repeated warnings and admonitions of the court, or to feel the atmosphere of disrespect for all rules of professional ethics in the practice of law, that apparently prevailed during the trial of this cause; but one thing is apparent from this record, and that is that the trial judge must certainly have been the personification of “Patience on a Monument” to be able to refrain from employing summary means of enforcing proper decorum. While this disorderly conduct reached nearly to the limit, we are unable to say the jury were influenced thereby to the detriment of appellant. We certainly do not wish to be understood as placing the stamp of approval upon such conduct as is above referred to, but it would be unwarranted for us to reverse this judgment and thereby penalize appellee for the conduct of his counsel for which it does not appear he was in any way responsible, particularly when there is nothing to indicate appellant was injured by the course pursued.

The judgment is right and is affirmed.

Judgment affirmed.


text:
    Earnest A. Miner, Administrator, Appellee, v. New Amsterdam Casualty Company, Appellant.
    1. Insurance, § 120

      —how policy is construed. A contract for accident insurance being prepared by the insurer cannot be extended by implication or inference against the insured but is to be construed strongly against the insurer.
    2. Insurance, § 410*—when insurer is liable for accident. Under an accident policy covering injuries "not caused or contributed to by illness or disease,” plaintiff was entitled to recover where his intestate, who became sick to the stomach from eating salted peanuts, went out on the platform of the railroad car in which he was riding and sat down and in some way got under the train and suffered the loss of his limbs, because the disease or sickness referred to does not mean every momentary indisposition that is suffered by the insured.
    3. Insurance, § 613*—when suicide need not be negatived. Under the rule that, in the absence of proof to the contrary, the presumption is that no person will take his own life and that every person is sane and that such presumptions have all the force and effect of evidence until overcome by proof, the burden was not on the plaintiff, in an action on an accident insurance policy, to show that his intestate did not take his own life.
    4. Insurance, § 452*—when proof of loss is waived. The giving of the written notice of an accident required by an accident insurance policy was waived where one in some representative capacity was sent by the insurer to investigate the claim and stated to plaintiff and his attorney that the insurer had sufficient proof of loss and that no further proofs would be necessary.
    5. Trial, § 268*—when special interrogatories are properly refused. It is not error to refuse to submit special interrogatories to a jury that do not- relate to the issues or that cannot be answered from the evidence, or unless some responsive answer could be made to them that would be inconsistent with some general verdict that might be returned.
    6. Appeal and error, § 1538*—when error in instruction is harmless. An objection to an instruction in an accident insurance case that it assumed that the loss of the insured’s feet was due to accidental means, and that it therefore ignored the contention that the insured in some way got underneath the cars in question with suicidal intent, was harmless even if it had been sound, where the tendency of the whole proof was to establish the fact that the injury did result from accidental means, and that there was no evidence tending to show that the injuries were self-inflicted.
    7. Insurance, § 432

      —when double indemnity is recoverable. Under an accident policy providing for double indemnity in case of loss of both feet by the insured “while riding as a passenger in or on a public conveyance (including the platform, steps or running board thereof) regularly provided by a common carrier * * * of passengers,” plaintiff was entitled to recover the double indemnity where his intestate while riding as a passenger on a railroad train met with an accident by which both legs were cut off between the knee and ankle, and died 4 days later from shock and loss of blood.
    8. Insurance, § 432*—when right to double indemnity accrues. Under an accident policy calling for the payment of double indemnity to the insured if he should suffer the loss of both feet while riding as a passenger in a public conveyance, such indemnity accrued to the insured in his lifetime, where he lost both feet and died 4 days after the accident from shock and loss of blood; and if the insured had desired to limit its liability to cases where the insured should continue to live for any particular time after he lost his legs, it should have done so.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    McCullough & Wierman, for appellant.
    Chester A. Smith, for appellee; Whitley & Fitzgerald, of counsel.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellant is an insurance corporation. On January 2, 1917, it issued to one Roy H. Roberts of Decatur, Illinois, an insurance policy for the principal sum of $5,000. Under the head of “Accident Indemnities” in the policy it is provided that in case of the loss of both feet by the insured under circumstances rendering the company liable according to the terms of the policy, the company will pay the principal sum for which the policy was issued, namely, $5,000, and double that amount if the injuries are sustained “while riding as a passenger in or on a public conveyance (including the platform, steps or running board thereof) regularly provided by a common carrier for the transportation of passengers.” In addition to the specific amount agreed to be paid to the insured in case he should suffer "the described loss, a further allowance is agreed to be paid for surgical aid. The.proof shows that on November 6, 1917, the insured while riding as a passenger on a railroad train between Lovington and Decatur, Illinois, met with an accident by which both legs were cut off between the knee and the ankle, and that he died 4 days later from shock and loss of blood. This suit.was begun by the administrator, with the will annexed of the estate of the insured, on the contract of insurance for the stipulated damages for the loss of both legs and.the stipulated amount for surgical aid on the theory that the moment his legs were taken off by the accident and he remained alive, the right to have and recover all indemnities agreed upon in the contract accrued to the insured and that when he died all the existing rights he had under this as well as other contracts became assets of the estate, which it was not only the right but the duty of the administrator to collect. Appellant filed the general issue and .six special pleas. A demurrer to the first and fifth special pleas was sustained, issues were joined on the remaining pleas, and the cause was tried by a jury which returned a verdict for appellee assessing his damages at $11,072.62, on which judgment was eventually rendered for that amount.

The first point urged is that, as the policy provides for no death indemnity and the insured died as the result of the same accident by which he lost his limbs, the loss of the limbs should be held to be merged in the death of the insured. There might be some reason and justice in that contention, if the policy provided for a certain amount of indemnity interchangeably, in case of death or the loss of his limbs. In such a case, if the stipulated indemnity should be paid, or if the insurance company became liable to pay for either the death or the loss of the limbs of the insured, a double recovery for the other alternative certainly would not be sustained. The case at bar is far different from the illustration. Here the indemnity is payable to the insured for the loss of his limbs and there is no time specified in the policy as to how long he must live in order to be entitled to it. The contract is one prepared by the insurance company and cannot be extended by implication or inference against the insured. That such contracts are to be construed most strongly against the authors of them is a rule of such frequent application as to require no citation of authorities to support it. No precedent or authority has been cited by appellant in support of its contention in this respect, neither does reason nor justice call for the construction of the contract contended for by it. The contract plainly calls for the payment of indemnity to the insured, Roy H. Roberts, if he shall suffer the loss of both his legs by the means covered by the policy. The proof clearly establishes the facts to be that he did lose them by that means and that he lived 4 days after he sustained that loss. The right to have and recover the indemnity sued for, accrued to the insured in his lifetime, if the appellant had desired to limit its liability to pay the indemnity contracted for, to cases where the insured should continue to live for any particular length of time after he should have suffered the loss of his legs, it was -undoubtedly within its rights to have had it so provided in the policy, but it was not so provided. The right to recover the indemnity contracted for having accrued to Roy H. Roberts during his lifetime, it became at his death an asset of his estate as much as money due on any other contract, and it was the right and duty of his administrator to collect it. Cotterell v. Coen, 246 Ill. 410.

It is next urged that the indemnity provided for by the policy was for injuries “not caused or contributed to by illness or disease,” and that the accident by which Roberts lost his legs was caused or at least contributed to by his sickness, and therefore appellant is not liable. The proof tends to show that while on the train the insured became sick to the stomach from eating salted peanuts, and went out on the platform, of the car in which he was riding and sat down there, but fails to show how he got off from the platform and under the train. It cannot be held as a fact from the evidence appearing in this record that the injuries received by Roberts that resulted in the loss of his legs were caused or contributed to by illness or disease. Even if it could be legitimately found to be a fact that Roberts was nauseated and that, because of his nausea, he went out on the platform and that he then became dizzy, either from nausea or the motion of the train, and fell off from the platform and under the car and there received the injuries in question, Roberts would not be thereby precluded from recovering for the loss of his legs, because the sickness or disease mentioned in the limitation clause of the policy above referred to does not mean every momentary indisposition that is suffered by the insured. Illinois Life Ins. Co. v. Lindley, 110 Ill. App. 161; Railway O. & E. Acc. Ass’n v. Coady, 80 Ill. App. 563. It means a sickness of some seriousness and permanency which, in itself, directly contributes to the loss suffered and but for which the loss would not have been sustained. Preferred Acc. Ins. Co. of New York v. Muir, 126 Fed. 926. There is no proof in this record that the deceased had any such sickness or disease as the parties had in mind in making the stipulation in question. The temporary sickness which Roberts suffered from eating salted peanuts may have been the occasion for his going out of the car and onto the platform where he was riding, but it was not a contributing cause of his injury.

It is next urged that the burden of proving that Roberts did not take his own life or that he was not insane when he received the injuries in question was on appellee and that there is no evidence in the record showing either of those facts. In the absence of proof to the contrary, the presumption is that no person will take his own life and that every person is sane. Fidelity & Casualty Co. of New York v. Weise, 182 Ill. 496. Such presumptions have all the force and effect of evidence until overcome by proof. There is no evidence in this record to overcome either of these presumptions. The jury therefore rightly concluded that when Roberts received his injuries he was sane and that he did not take his own life.

The policy provides for the giving of written notice, to appellant or its duly authorized agent, of any injury within 20 days after the accident causing such injury, whereupon appellant therein agreed to furnish blanks for filing proofs of loss. It is also therein provided that affirmative proofs of loss must be furnished within 90 days after the date of such loss. Appellant contends these provisions were not complied with, and, therefore, it is not bound to pay the claim. Provisions of that character in a policy of insurance, while primarily binding on the policyholder, may be waived by the company. Continental Life Ins. Co. v. Rogers, 119 Ill. 474-487; Insurance Co. of North America v. McDowell, 50 Ill. 120-129. In the McDowell case the court held that where the company had such notice of the loss as induced them to send an agent to investigate the loss, it was sufficient without reference to its form or particulars, and that any notice that produces such a result was sufficient. In this case, one Best, who was the local agent of appellant, who solicited and took the application of Roberts to whom the policy when issued was sent and who delivered it to Roberts, and who was still representing appellant at the time the accident happened and knew all about the accident and loss almost immediately after it occurred, testified that he then notified the company of the loss by “wire or letter” and that thereafter the company sent their adjuster “to look into the matter.” E. A. Miner testified for appellee to what this so-called adjuster said in connection with his investigation of the matter, but both the statement of the witness Best, to the effect that this party sent by appellant to look into the matter as its adjuster, and the testimony of the "witness Miner, as to what the so-called adjuster said about the matter, were afterwards stricken from the records and withdrawn from the consideration of the jury, and cannot be considered by this court. It appears elsewhere in the record that the name of this man referred to by Best, as an adjuster, was known as McCaffney, and that he was introduced to the representatives of the estate of Roberts, deceased, as the adjuster of appellant and that he made investigations in regard to this claim.

Later, E. A. Miner wrote two letters to appellant company demanding an adjustment of this claim and received a reply written on the letterhead of appellant and signed by one W. A. Connor, as “Superintendent of Claim Division” of appellant, stating, in substance, that Mr. Connor would soon be in the vicinity of Decatur and requesting the indulgence of appellee until that time. In due time Connor came and in conversation with appellee and his attorney said there had been sufficient notice to appellant of the loss, that there was no question but what the claim of appellee had been duly filed, that appellant had sufficient proofs of the loss and that no further proofs of the claim would be necessary. The notice sent appellant by Best, as its local agent at Decatur, whether it was by telegram or by letter and whether it was or was not in exact conformity with the notice required by the terms of the policy, caused appellant to send McCaffney in some capacity, to investigate the matter and was sufficient under the holding in Insurance Co. of North America v. McDowell, supra. Even if no notice had been given, it was a matter that could be waived by appellant and was expressly waived by Connor, who came in accordance to the request made by appellee on appellant by letter as its representative. The agency of both McCaffney and Connor was established prima facie by the fact that they came to Decatur pursuant to communications sent to appellant and that they were there recognized and introduced as its representatives by its local agent and proceeded to assume to represent it in this matter. This prima facie showing has not been rebutted in any way, neither has the agency of these men been denied by any one under oath or these acts repudiated.

Appellant requested the court to submit to the jury three interrogations:

First. “Did the said Roy H. Roberts intentionally cause himself to be injured?”

Second. “Was Roy H. Roberts in a condition of illness just prior to and at the time of his injury?”

Third. “Was the falling of Roy H. Roberts under the wheels of the train in question, or his being thrown there, contributed to by illness of the said Roy H. Roberts ? ’’

These interrogations were all properly refused. There was no evidence from which a verdict of suicide or self-inflicted injury could have been sustained if found, and none whatever of any sickness of a character to constitute a defense in this case. It is not error to refuse to submit special interrogations to a jury that do not relate to the issues in the case or that cannot be answered from the evidence in the case, or unless some responsive answer could be made to them that would be inconsistent with some general verdict that might be returned by the jury. Smith v. Sanitary Dist. of Chicago, 260 Ill. 453-464, and cases there cited. Upon no theory could the court have been justified in this case in requiring the jury to answer either of the special interrogations submitted.

Appellant lastly contends that in one instruction given at the request of appellee it is assumed that the loss of Roberts’ feet was due to accidental means, and by so doing ignores its contention that the insured in some way got himself underneath the car with suicidal intent. It is a “far cry” to say that such fact was assumed in the instruction, but, if it was, no harm could come to appellant from it because the tendency of the whole proof was to establish the fact that the injury did result from accidental means, and there is no evidence even tending to show that the injuries received by the deceased were self-inflicted.

Finding no reversible error in this record the judgment of the circuit court is affirmed.

Judgment affirmed.