text:
    Charles A. Crane v. Maggie Schaefer.
    Gen. No. 13,760.
    1. Pleading—what pleading of facts as distinguished from stating conclusions of law. Ultimate facts may be pleaded notwithstanding they, to an extent, represent conclusions.
    2. Pleading—what statements of conclusions not bad. It is good pleading to aver the existence at a specified time of a trust deed conveying certain property and securing a particular indebtedness, without setting out such trust deed.
    3. Deceit—what proof of allegations sufficient in action of. The allegations made in a declaration in an action of deceit are regarded as divisible and the plaintiff may succeed if he can prove any one of them which of itself makes a cause of action; and the plaintiff may likewise succeed although he may not prove the misrepresentations precisely as laid, nor any of the different forms as alleged. All that is required is proof substantially of the material allegations.
    4. Deceit—degree of proof required in action of. In an action of deceit the plaintiff need only prove the material allegations of his declaration by a preponderance of the evidence. People v. Sullivan, 218 Ill. 419, distinguished.
    5. Deceit—when proof of scienter need not be made. Proof that the defendant knew that his representations were false at the time he made them need not be made where it appears that the defendant stated a material fact and asserted knowledge thereof upon which the plaintiff relied.
    6. Vekdict—when not disturbed as against the evidence. Where two jury trials have resulted in the same way the Appellate Court will be slow to set aside a verdict as against the weight of the evidence.
    7. Measube of damages—instruction as to, in action of deceit, approved. An instruction on this subject as follows, is approved:

      "The court instructs the jury that if you find the issues for the plaintiff, you should assess the plaintiff’s damages at such sum, if any, as you may believe from the evidence and under the instructions of the court that the plaintiff necessarily paid in discharge of the encumbrance, if any, shown by the evidence, resting, at the time of the purchase thereof by the plaintiff, upon the lot in question, purchased by her, together with interest upon that amount from the date of such payment at the rate of five per cent, per annum.”
    8. Damages—when punitive, may he awarded. Where malice is, as in an action of deceit, a part of the gist of the action, punitive damages may be awarded even though the act complained of is indictable.
    Action in case fdr deceit. Error to the Superior Court of Cook county; the Hon. Abthub H. Chetlain, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 20, 1908.
    Statement "by the Court. This is a writ of error sued out from this court to reverse a judgment for $1,200 rendered by the Superior Court of Cook county against the plaintiff in error at the suit of the defendant in error. The case was begun by the issuance of a capias ad respondendum against 'Crane on the affidavit of the plaintiff, Maggie Schaefer, on July 2,1900. On the same day the plaintiff filed a declaration in one count in case for deceit. The declaration charged that the plaintiff had been induced on September 3, 3896, to enter into negotiations with the defendant for the purchase by the plaintiff of certain real estate which defendant represented was owned by his father, Albert Crane, described as lot 54 in Thomas J. Foster’s subdivision, etc., and that said defendant, well knowing that said property was encumbered by a trust deed to Frank E. Chandler, executed by Albert Crane and wife, dated April 3, 1896, etc., conveying said premises and other property in said subdivision, to secure an indebtedness of $1,500, maliciously, fraudulently and wilfully intending and contriving to cheat, deceive, defraud and injure the plaintiff, falsely, maliciously, deceitfully and fraudulently stated and represented to said plaintiff that he, said defendant, knew all about the title to said lot 54, and that said title was clear and said property unencumbered, and that said Albert Crane had a good and clear title to said lot 54, free of all encumbrance.” Allegations then followed that, relying on the defendant’s representations, the plaintiff agreed to pay $1,050 for the lot, and that she did so and received from the defendant a warranty deed executed by Albert Crane and wife, and an abstract of title, but that the defendant represented to her that he knew all about the title, and it would be an unnecessary expense for her to have the abstract examined, and that she did not do so, but accepted the deed and abstract, believing the title to be free and clear of all encumbrance, as represented by the defendant; that long afterward the plaintiff discovered the existence of the trust deed mentioned, and was threatened with foreclosure; that in order to prevent such foreclosure, the plaintiff was obliged to and did on May 25, 1900, “pay to the holder of said encumbrance the sum of $649, being the proportionate amount of the indebtedness secured by said trust deed upon the property purchased by plaintiff, and obtained a release of said property from said trust deed; ’ ’ that Albert Crane was dead and left no estate, and his widow, who joined in the warranty, had no property; that the false representations of the defendant were material, and if they had not been made the plaintiff would not have purchased the property, and that by means of all this the plaintiff had been damaged to the extent of $1,000.
    A count subsequently filed by leave of court, and known thereafter as the second count of the declaration, repeated the allegations of the first count, and added thereto the statement that the defendant, a few days after making the said agreement on, to wit, September 10, 1900, tendered to the plaintiff what purported to be an abstract of title, representing to the plaintiff that the same was such abstract of title; that the abstract so delivered by defendant to plaintiff did not show the trust deed in question, the last continuation of the abstract having been made just prior to the recording of said trust deed, and that reliance on the representations of the defendant prevented the plaintiff from having the title examined.
    After a mistrial the plaintiff had leave to amend her declaration and to file an additional count thereto, and on July 1,1902, she filed the third count to her declaration. It was the same in substance as the other two, except that it omitted all allegations of representations that Albert Crane was the owner of the property. It does, however, allege that the defendant falsely represented to the plaintiff that the defendant knew all about the title to the lot in question, and that said title was clear and said property unencumbered.
    Separate demurrers were filed to each of these counts, but they were all overruled and the cause was finally submitted to a jury in January, 1904, on the declaration and subsequent pleadings, the course of which it is not necessary here to detail. The jury found a verdict for the plaintiff for the sum of $773.15.
    A motion for a new trial was made ‘by defendant and was granted. The. cause came again before a jury in March, 1906. On this trial the jury returned a verdict for $1,200, and answered the following demands for special findings as herein set down:
    “Q. 1. Did the plaintiff rely upon any representa-
    tions by defendant? Answer: Yes.
    Q. 2. Do you find the defendant guilty or not guilty on the first count of the plaintiff’s declaration filed in this cause on July 1, 1900? Answer: Guilty.
    Q. 3. Do you find the defendant guilty or not guilty on the second count of the plaintiff’s declaration filed in this cause October 16, 1901? Answer: Guilty.
    Q. 4. Do you find the defendant guilty or not guilty on the third count of plaintiff’s declaration filed in this cause July 2, 1902? Answer: Guilty.”
    A motion for a new trial and one in arrest of judgment were after this trial denied. At the same time, on motion of the plaintiff, all papers and proceedings in the cause were amended by increasing the ad damnum to $1,200, and judgment was then entered on the verdict. From this judgment the defendant appealed to this court, and has here assigned twenty-eight errors. Those only relied on in the argument herein filed by the defendant’s counsel will be discussed in the following opinion.
    William Slack and John C. Wilsoet, for plaintiff in error.
    Ray & Pease, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The first point urged against the judgment in this case is that the declaration states no cause of action, and that consequently the motion in arrest after verdict should have been granted.

This position is based on the argument—to ube the language of the plaintiff in error’s brief—“that the existence of those things which constitute a lien at law is one of the indispensable elements of the plaintiff’s case,” and “a conclusion of law being substituted therefor, there is a complete failure to state a cause of action, and such a pleading cannot be aided by verdict.”

Before reciting the particular averments which are in this case claimed by plaintiff in error to be subject to the animadversion of being mere conclusions of law, it may not be out of place to allude to the great difficulty which exists in drawing a line between ultimate facts (which, as distinguished from evidentiary facts, alone are proper to plead) and the pleader’s inference from facts, or between such ultimate facts and mixed conclusions of law and fact.

Charles O’Connor, quoted in Andrew Stephen’s Pleading, p. 154 (note 4), said: “I think the code contains, as I best recollect at this moment, only one thing which can be called new in principle, and that is an attempt at an absolute impossibility in prescribing the rule of pleading. It declares in substance and effect that you shall not plead, as in the old system, the conclusions in law or in reason, from the facts of the case, and at the same time it prohibits you from stating or detailing the evidence merely on which you rely.”

That that which is by Mr. O’Connor described as impossible is at least difficult, is recognized by all text-writers and in many decided cases. Judge Mulkey, in Zimmerman v. Willard, 114 Ill. 364, says, speaking of a pleading which said that a deed of assignment mentioned in previous pleadings “was executed, made, had and contrived by the said Willard of his fraud and covin with the intent and purpose to delay, hinder and defraud his creditors * * * and was utterly void”:

“It is first objected that the replication states a mere conclusion of the pleader and not the facts constituting the fraud, as it should do. This is a misapprehension. While we fully recognize the general rule adverted to by counsel, yet in applying it there is another general rule that must not be lost sight of, namely, that it is not proper to plead mere matters of evidence in any case. It may he difficult in some cases to apply these well-recognized rules of pleading—and this indeed is conceded by the most authoritative text-writers; yet we perceive no difficulty in applying them in the present instance. The fraud relied on here is not, as is generally the case, to be inferred from a great variety of issuable facts to be proven on the trial. It differs from other cases in this respect, however, only in the paucity of the issuable facts from which the fraud is to be inferred. The defense here consists of two facts, namely, the making of the deed, and the alleged illegal or fraudulent intent with which it was done. Both these facts are distinctly averred, and present triable issues, and this is all the law requires.”

The “ultimate fact” which must be pleaded is frequently an inference, and conclusion from many evidentiary facts, and is, in a sense, a mixed conclnsion of law and fact. The common law system of pleading, despite all the rules against the pleadings of “conclusions of law,” often allowed conclusions of law to be pleaded. In ■, some cases hardly anything else was pleaded. Take the common indebitatus assumpsit counts, for example, as a basis for recovery, where the promise is implied, and what are they but conclusions of law? While, therefore, it cannot be denied that there is a rule of pleading that mere conclusions of law should not be pleaded, it is a rule that should be applied with liberality, and courts should not be astute to declare these statements mere conclusions of law, which can be instead construed as statements of ultimate as distinguished from evidentiary facts, or at the worst, as mixed conclusions of law and fact.

The statements particularly objected to in the different counts of the declaration in this case, as being mere conclusions of law, are those which declare that there was in existence at the time of the purchase and sale a described trust deed (the parties and date being given) conveying said premises, together with other property in said subdivision, and securing an indebtedness of $1,500, and that said trust deed encumbered said property with a valid and subsisting lien upon said premises for the amount aforesaid. We cannot see why facts are not “distinctly averred” by these allegations, nor why they do not present “triable issues,” nor why this is not “all the law requires.” Zimmerman v. Willard, supra.

The second objection made by the plaintiff in error to the judgment is that the proof does not support the allegations of the declaration. In the first place, it is said that there is no evidence whatever to support material allegations of the declaration, that this is not a question of variance, • but of entire absence of proof, and that in consequence the case should have been taken from the jury by a peremptory instruction.

The ground for this claim, however, which is advanced in argument, is in effect a claim of variance. The plaintiff in error lays stress upon the fact that there was no evidence to prove some of the statements charged, and that such statements concerning the title as were proved differed from those charged.

But the Supreme Court said of an action of deceit: “Such allegations may be regarded as .divisible, and the plaintiff may succeed if he can prove any one of them which of itself makes a cause of action. * * * It is also true that the plaintiff might recover although he did not prove the misrepresentations precisely as laid nor in all the different forms as laid, but it was required of him to prove substantially the material allegations.” Endsley v. Johns, 120 Ill. 469.

We think that the testimony of the plaintiff and her mother tended to prove “substantially the material allegations,” and that the exact language used in the declaration is not proven is not material. The court committed no error in allowing the case to go to the jury.

But it is further insisted that at all events the court erred in not granting a new trial after the verdict; that the decided weight of the evidence was against the plaintiff. It is urged that defendant, who denied the false representations, is a priori equally credible with Mrs. Schaefer and Mrs. Bankin, who asserted them, and that the attending circumstances corroborate him.

The testimony was undoubtedly conflicting. Had the jury found the other way, we should not have disturbed its verdict, but we see no justification for doing so as it is. The jury had the witnesses before them; their credibility was considered by them; we cannot properly substitute our judgment for theirs. It is to be noted, too, that this is the second jury before whom the same witnesses have appeared with the same result.

The verdict is complained of also for the reason that it is too large, even if a liability for some amount should be assumed to exist. This presents the question of the proper rule of damages in a case of this character. An instruction on this subject asked by the plaintiff was given by the court, as follows:

“The court instructs the jury that if you find the issues for the plaintiff, you should assess the plaintiff’s damages at such sum, if any, as you may believe from the evidence and under the instructions of the court that the plaijitiff necessarily paid in discharge of the encumbrance, if any, shown by the evidence, resting, at the time of the purchase thereof by the plaintiff, upon the lot in question, purchased by her, together with interest upon that amount from the date of such payment at the rate of five per cent, per annum. ’ ’

This instruction is complained of by plaintiff in error, but we do not think it open to animadversion. It is said that “the true measure of damages is the difference between the value of the lot as it was represented to be and its actual value at the time of the sale,” and that this instruction varies from that rule. Neither proposition seems to us exactly correct. In some cases where property is represented to be clear which is in reality encumbered, the literal application of this rule thus formulated would prevent the effect which plaintiff in error asserts the true rule should have—that is, the giving to the plaintiff “the benefit of his bargain. ” Drew v. Beall, 62 Ill. 164-8. Because he bought cheap on a false representation that the property was unencumbered, should not prevent him from recovering the loss suffered by the misrepresentation. It would do so under the rule mentioned, if the defendant could prove that, even subject to the encumbrance, the property was really worth what was paid for it under the belief that it was unencumbered.

On the other hand, as applied to the facts of this particular case, the proposition laid down by the instruction does not vary from the rule mentioned, or if it does, it so varies to the advantage, and not the disadvantage, of the plaintiff in error. The evidence was, we think, sufficient to make a prima facie showing of the value of the lot unencumbered at $1,050, the amount paid for it. It was subject, with other property, to an encumbrance of $1,500, with interest. The plaintiff was restricted in her compensatory recovery to the amount necessarily paid in discharge of the encumbrance, with interest. That amount was $649 and interest—a sum much less than the actual encumbrance resting upon the land, being a proportionate part, instead of the whole of it. That amount, therefore, did measure the difference between “the value of the lot as it was represented to be” (i e., unencumbered), and “its actual value” (i. e., encumbered as it was) “at the time of the sale.”

We think the instruction stated a proper rule of damages, both generally and as including the allowance of interest. 2 Sutherland on Damages, 2d ed., sec. 623; Smith on Fraud, sec. 299; McDowell v. Milroy, 69 Ill. 498; Eames v. Morgan, 37 Ill. 260; Pungs v. American Brake Beam Co., 102 Ill. App. 76.

The jury, however, did not confine themselves to compensatory damages under the rule laid down by the instruction. If they had done so, the verdict could no.t have been more than eight hundred and forty dollars. It exceeded this by three hundred and sixty dollars. This three hundred and sixty dollars must have been awarded as punitive damages. This award, therefore, raises- a question of the further instruction on damages given at the request of the plaintiff, as follows:

“You are instructed that if you believe from the evidence and under the instructions of the court that the defendant made the representations as charged in the declaration, and that the same were false and made knowingly, wilfully, and maliciously, and that the plaintiff believed and relied upon said representations, and in so doing exercised reasonable prudence under all the circumstances shown by the evidence and under the instructions of the court, and that the plaintiff thereby sustained damages as charged in the declaration, then in fixing'the amount of the plaintiff’s damages you are not confined to the actual damages shown by the evidence, but may, in your discretion, award and include in your verdict as punitive or exemplary damages, such further sum, if any, as in your judgment is right and proper in view of all the evidence and instructions of the court.”

The claim is made by plaintiff in error that in whatever other cases punitive or exemplary damages may be properly awarded, they cannot be so awarded where the act complained of is one indictable and punishable as a criminal offense at the instance of the people.

We do not think this claim is borne out by the law as declared in Illinois, nor that the instruction is therefore erroneous. Where malice is, as here, a part of the gist of the action, the decisions of our Supreme Court justify punitive damages, even though the act complained of is an indictable one. Eames v. Morgan, 37 Ill. 267; Roth v. Eppy, 80 Ill. 283; Brannon v. Silvernail, 81 Ill. 434; Kelly v. Valentine, 17 Ill. App. 87. We think, under these authorities, the instruction was correct. The question whether the conditions set forth in the instruction existed was for the jury. If punitive damages were properly allowable, the amount of them included in this verdict cannot be considered excessive.

It is claimed by plaintiff in error that the trial court erred in refusing to instruct the jury that the guilt of the defendant in regard to the matters charged in the declaration must be proved to their satisfaction beyond all reasonable doubt before they could find a verdict for the plaintiff. In support of this contention counsel quote the broad proposition made in an opinion of the Supreme Court in a recent case—People v. Sullivan, 218 Ill. 419-437—to the effect: ‘ ‘ That when a criminal offense is charged in the pleadings and must be established either to sustain the cause of action or maintain the defense, the presumption of innocence arises, and the crime charged' must be proven by evidence which removes every reasonable doubt of guilt.” To this statement are cited in The People v. Sullivan, as there are to the same broad proposition in the plaintiff in error’s brief, Crandall v. Dawson, 1 Gilman, 556; McConnel v. Delaware Mutual Insurance Co., 18 Ill. 228; Harbison v. Shook, 41 Ill. 141; Sprague v. Dodge, 48 Ill. 142; Germania Fire Insurance Co. v. Klewer, 129 Ill. 599.

These cited cases were nearly all discussed by us in Solomon v. Buechele, 119 Ill. App. 595, the decision of which was made by us some time before the Sullivan case was decided by the Supreme Court; and we there held that they could not be considered authority for so broad a statement as that 'to which they are cited in the Sullivan case—if that statement is to be taken literally and without limitation. We held that at most the rule that evidence of a criminal offense must in a civil proceeding be proved beyond a reasonable doubt only applied to infamous crimes, and not to such criminal offenses as assault and battery. Although the criminal offense of obtaining money, under false pretenses is not a felony under our Criminal Code, it may perhaps be considered an infamous crime. This is doubtful, however, and in view of the opinion of the Supreme Court in Eames v. Morgan, 37 Ill. 260, where the question seems passed on by the approval of one of the instructions objected to, we should have no hesitation, were it not for the expressions- before quoted from the Sullivan case, in holding that the rules of evidence governing such cases as the present did not require more than a preponderance of evidence to warrant a verdict against the defendant, and even with those expressions before us, we are still of this opinion. The language of an opinion must be taken in connection with the facts of the case. It cannot be expected, in stating a rule of law applicable to those facts, always to include all the limitations and restrictions which might make it precise. In the Sullivan case the crime charged was punishable by imprisonment in the penitentiary, and was plainly of the nature called infamous in the law, and what is perhaps more important, the information was as direct a charge of crime by the state which by its proper officers was prosecuting it, as though it had been an indictment, and the penalty which the state was endeavoring to fasten on the defendant was not a money judgment, but a degrading and humiliating expulsion from the bar, and a prohibition of his following his profession. The court says that there was no preponderance of evidence showing guilt, but further fortifies its decision by saying that preponderance would not be sufficient. We do not think that the opinion was intended to change or extend the rule which preceding cases had established.

Finally, it is claimed that although in actions for deceit by false representations, the rule in Illinois requires proof that the representations must have been knowingly made, with the intent to deceive, the verdict and judgment sought to be upheld were rendered without any proof that the defendant knew of the existence of a lien or trust deed on these premises. It is further insisted that this necessity of the proof of the scienter was omitted from the instruction on punitive damages that we have before recited.

We cannot agree that there is no evidence tending to prove knowledge on the part of the defendant in the legal sense of the falsity of the representations imputed to him. He was said to have represented, in positive terms, the property to be without encumbrance. In the legal sense, if he did not know anything about it, he knew that that representation was false. It was in such a case morally false also. A man cannot state with positiveness and as of absolute knowledge a proposition of fact affecting the interests of another, of which he actually knows nothing, for the purpose of affecting that other person’s actions for the speaker’s advantage, or that of his principal, and be accounted truthful, even if he happens to chance on the correct statement. If his statement chances to be false, he must, moreover, in such a case, bear the consequences of its falsity. Smith v. Richards, 13 Peters, 26; Stone v. Denny, 4 Metcalf, 151; Borders v. Kettleman, 142 Ill. 96.

In this case besides, there is evidence that the defendant took the acknowledgment of the trust deed in question, and evidence, competent fo go to the jury for what it might be. worth, of his evasive and suspicious conduct and answer when, after discovery of the mortgage was made, he was interviewed by the plaintiff and her mother.

In the instruction attacked we think that the “scienter” was sufficiently contained in the provision that the representations and statements must be found to be false and made “knowingly and maliciously.” No reasonable construction could be given to the word “knowingly” which referred it to anything but. the falsity, of the representations.

Three juries have been called and two have passed on this cause. We find in the record of the last trial no reversible error, and the judgment of the Superior Court must be and is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brows

license: Public Domain

text:
    Society of St. Stephen the Martyr v. Mrs. Stephen Sikorski et al.
    Gen. No. 13,774.
    1. Appeals and errors—what questions may be considered upon review of judgment of Municipal Court. Where no written pleadings are required in the Municipal Court, the fact that written pleadings are filed, not presenting questions raised on review, is not material, and the Appellate Court may consider such questions if they properly arise upon the record filed.
    2. Corporations—what contracts ultra vires. A corporation organized for “social and religious purposes,” not for pecuniary profit, under the general incorporation act and not purporting to be organized under the act of June 23, 1883, has no authority to make valid contracts for death benefits dependent upon the assessment of members.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 20, 1908.
    Frank H. Jasiszeski, for plaintiff in error.
    Heffroh & Caddick, for defendants in error.
   Mr. Justice Brows

delivered the opinion of the court.

The plaintiff in error in this case is a corporation, the full name of which in Polish means, it would seem, The Roman Catholic Society of Brotherly Assistance of St. Stephen the Martyr.

It was organized September 6, 1892, under that part of the General Incorporation Act relating to corporate associations not for pecuniary profit. The object for which it was formed was stated in its articles of association and certificate of incorporation to be “for religious and social purposes.”

The translation of the constitution, which was put in evidence, is in indifferent English, but its meaning is sufficiently intelligible. Various provisions affecting the cause at bar are as follows:

“Article II. Aim or Object of the Society.

■ The object of this society begun in Chicago, at St. Stanislaus Church, under the name of St. Stephen the Martyr, is a mutual connection into a unbreakable knot with regularly monthly fee to support the sick and poor and through accident or death afflicted their relation and families.

Article III. Conditions in Accepting Candidate.

Every Roman Catholic Pole of good character, healthy body, and sane mind, age 18 to .35 years, can be accepted as a member of St. Stephen the Martyr’s, if he fills out the following conditions: 1. He has to be proposed by two members who know him personally to be a good Catholic and upright man, not less than one year. 2. He has to pay the entrance fee instituted by the Society. 3. He must pass one month’s trial. 4. He has to show a certificate if he is 30 years of age, the Society does not want certificates from candidates below 30 years of age.

Article VI. Section 14.

To the Recording Secretary shall come letters from sick or dead members asking for financial help; he shall then within twenty-four hours notify the Sick Committee after he receives the notice.

Article VII. Section 1. FUNDS OF THE SOCIETY.

The funds of the Society of St. Stephen shall be raised from the entrance fee, which must be paid by each member, from monthly dues and special fees proposed at one meeting and accepted at the next by the society, from fines spoken of the constitution and voluntary offers.

Article VIII. Care Over Sick.

'Section. 1. Care over sick shall be in the hands of the Tutor of Sick and Committee of Members.

Section 2. Committee visiting the sick composed of seven members shall be appointed every month by the Recording Secretary, according to the Recording Book and only to two sick per day, and in case of more than two sick persons are found, the Recording Secretary shall appoint another Committee, and those will be on duty one month.

Section 3. Members of the Sick Committee notified about a sick brother, shall visit him every week by terms, providing the sickness is not contagious.

Section 4. In case of dangerous sickness, the Committee after conference with the Tutor of Sick shall notify the Secretary, and he shall appoint four close living members to guard him. Two of them from 8 to 12 p. m., and two from 12 to 4 a. m„, and only night time.

Section 5. Duty of Tutor of Sick shall be in look for the proper assistance from the Treasury of the Society for the sick brother and hand the said assistance to the member after proper settlements. It is also his duty in case of nearing death to see that the sick brother gets the right religious help, that he may confess when conscious and receive the Blessed Sacraments.

Article IX. Duties oe Members.

Section 2. All fines, dues and voluntary or necessary collections ought to be paid at a regular meeting to the Financial Secretary.

Section 6. Every member sick or injured shall receive appointed financial assistance, providing the said sickness or injury was not caused by drinking or immoral life. If he is the fault of sickness, he shall receive no assistance.

Section 7. A member not paying his dues or special collections during 3 months, shall in case of sickness, receive no assistance. If he has not paid for 6 months, and is able to pay and does not pay, he shall be thrown out of the Society; on the other hand, a member not able to pay his dues from six months and wishes to remain a member of the Society, must publicly explain his case to the Society, and the Society can prolong his payment.

Section 11. A member publicly going against the Catholic Faith, leading an immoral or irreligious life, disgracing the church, priest or his own society, shall be immediately cast out of St. Stephen the Martyr’s Society, his money will not be refunded and assistance

Section 12. The Society of St. Stephen the Martyr shall celebrate a holiday on Sunday after 'St. Stephen’s day, * ° * and the whole Society shall go to confession and holy communion.

Article X. Peivileges oe Membebs.

Section 2. Every member of St. Stephen’s Society in case of sickness shall receive $5.00 a week as assist" anee. Being sick one week he receives no assistance, but being ill fully' two weeks or more, will receive from date of notice being sent to Becording Secretary the above mentioned assistance after six months shall receive only a half, that is $2.50 weekly till a year; after a year he will receive no assistance in sickness, nor after death assessment till death.

Section 4. The Society is obliged to pay $300 in case of death of a member, which sum members must raise, and the amount to be collected from each member depends upon the number of members. In the case of death of a member’s wife, the Society is obliged to pay $200, which sum is collected from the members.

Section 5. If the Society takes the funeral of the member in its hands, it shall pay the expense of the burial from those $300, and the rest is returned to the heirs of the dead member.

Section 7. Every member must pay after the death of a brother the sum appointed by the Society, within three months after the death under the fine of suspension.”

Section 20 of Article VI is:

“The Financial Secretary shall notify all those whose dues from three months are not paid; in case of six months the member shall be announced publicly and having been notified by a registered letter and does not pay, the member shall be crossed out from the list of members.”

Sections 7 and 8 of Article VIII are:

“A member abusing the assistance of the Society, this being proved to him, shall be suspended or expelled. No suspending shall last over 3 months. A suspended member loses all rights and privileges to the Society.

“If member under suspense, after time of suspend is over, gives a testimonial of good health from a physician, can be accepted to the Society, that also if he pays his debts to the Society made during the suspension. ’ ’

We have at such length given excerpts from the constitution and included several even which do not appear in the abstract, because this case turns, as will be seen hereafter, on the question of the power of the corporation, under its articles of association, “for religious and social purposes,” to contract to levy and pay over to the “heirs” or family of a deceased member a death assessment.

The defendants in error are the widow and children, and therefore the heirs, of one Stephen Sikorski, who was prior to 1906 a member in good standing of the said Society of St. Stephen the Martyr, and who, it is claimed, was such a member at the time of his death, September 13, 1906.

The claim of the bill of particulars in the case is:

“For life insurance on the life of Stephen Sikorski amounting to Three Hundred Dollars ($300) and due plaintiff from the defendant on the death of said Stephen Sikorski, which occurred on, to-wit: September 13, 1906.”

The defendant corporation filed two pleas,' the general issue of non-assumpsit and nul tiel corporation, and set up also a counter claim “for money due to the said 'Society and owing by Stephen Sikorski as dues and assessments levied on him by the said Society during his lifetime as its member.” As, however, no written pleadings were necessary in this case in the Municipal Court, it does not matter that the contentions relied on here are not shown by the pleadings in that court, nor are we concerned with mere matters of practice, but must, in the language of the Municipal Court Act, decide the case “upon its merits as they appear from the statement or stenographic report signed by the judge. ’ ’

The principal objections here made to the judgment are that it is based on an alleged contract ultra vires of the corporation, and also that there is no proof that the conditions provided for in article X, section 4, of the constitution of the Society, which would in any event alone make that alleged contract effective, existed. The position, however, is also taken that the evidence shows Sikorski not to have been a member of the Society in good standing at the time of his death. This was really the only question left to - the jury in the court below. The trial judge charged the jury that if the evidence proved the deceased to be a member of the Society in good standing at the time of his death, his heirs were entitled to recover $300, but if he was proved to have been suspended before his death, and not to be in good standing at that time, they were not entitled to recover.

The jury found a verdict of $297.65—a sum evidently computed by deducting from $300 the amount the jury believed due from the deceased to the Society. On this verdict the trial judge entered judgment, after denying a motion for a new trial and a motion in arrest of judgment.

We do not think it necessary to discuss the evidence on this issue thus left to the jury. We should not have disturbed the judgment on the ground that the deceased was not a member of the Society. But we think the case should never have gone to the jury, and that if it did so go, no verdict against the Society should have been allowed to stand, because this death loss sued on could not be a liability of this corporation.

Corporations whose charters express no other objects than social and religious purposes, are not allowed to make contracts of life insurance, either technically or substantially on the assessment plan or otherwise. It is true that after the general Incorporation Act was passed in 1872—which Act excepts corporations formed for the purpose of “insurance” from the benefit of its provisions—the legislature (in 1874) amended one of its sections (relating to corporations not for pecuniary profit) by adding the clause: “Associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, and where no annual dues or premiums are required, and where the members shall receive no money as profit or otherwise, shall not be deemed insurance companies.” Under this amendment (further amended by Act of May 22, 1883, to include among the possible beneficiaries members who have received a permanent disability) the legislature evidently contemplated the incorporation of such assessment death and disability insurance associations, in accordance with the general incorporation Act. But there is nothing to show that it did not contemplate also the existence and enforcement of the general rule that the purpose of the corporation, if it were for such a purpose, should be clearly set forth in the articles of association, which were to stand for its charter. The presumption is to the contrary. But by Act of June 23, 1883, the Legislature, by enacting a statute entitled, “An Act to provide for the organization and management of corporations, associations or societies for the purpose of furnishing life indemnity or pecuniary benefits to widows, orphans, heirs, relatives and devisees of deceased members, or accident or permanent disability indemnity to members thereof,” and in said statute providing that all societies of a similar character in existence should comply with all its requirements, and repealing all laws or parts of laws in conflict with it, certainly prevented any doubt, if there would otherwise be one, that mere organization thereafter of a corporation not for pecuniary benefit, “for social and religious purposes,” not in the method'prescribed by the Act of June 23, 1883, or professing to be made under it, did not authorize such corporation to make valid contracts for death benefits depending on the assessment of members.

This Act of 1883 as amended in 1887 was in force when the plaintiff in error in this cause was incorporated in 1892. It was replaced by a similar Act in 1893 for assessment insurance companies, and by an Act passed at the same time for the organization and management of “fraternal beneficiary societies,” so-called. These Acts as subsequently amended are now in force.

We have no doubt that the alleged contract of life, insurance on which this suit was brought was ultra vires of the defendant corporation.

It is urged in argument that the burial of the dead is a religious duty, one especially insisted on by authorized catechisms of Christian doctrine in the church to which the parties to this suit belong, and that therefore the collection and disbursement of money for funeral expenses may well be within the religious purposes for which the defendant corporation was formed. It is undoubtedly true that the burial of the dead, or something equivalent thereto, is regarded by all Christian bodies and, so far as we know, by all races and creeds, as a religious duty; but the vice of the plaintiffs’ reasoning on that proposition in this case is apparent. We have no occasion to decide here what may or may not have been within the power of this or a similarly organized association to contract to do in the matter of funeral or burial expenses of its members. The suit here is for “life insurance on the life of Stephen Sikorski” (plaintiffs’ bill of particulars, rec. page 3); and the sections of the constitution under which money is claimed, and which have been hereinbefore set out, do not provide for burial expenses, except contingently. The amount of assessment life insurance provided for is to be diminished by the amount paid out by the Society for such burial expenses, if, and only if, “it takes the funeral of the member in its hands.”

But even were.the contract relied on not ultra vires, there was an absence of proof of that which could make a liability.

The section of the constitution which provides for the obligation also specifies how the money should be raised. It does not apparently provide an absolute pecuniary obligation for the corporation itself, but binds the corporation to make assessment. In the absence of any evidence that the Society has made the assessment, or has any money on hand, how, under this section, can an action at law in assumpsit lie against it!

However, it is on the want of power in the association to make the contract sued on, that we place our decision.

It is plain that no question can be raised of the failure to plead specially this defense in the Municipal Court, and we do not think there is anything in the relations proved between the deceased or the suing beneficiaries and the corporation which estops it from setting it up. There were various and laudable purposes provided for by the constitution which were directly in line of the charter powers of the corporation. Those provided for by that constitution which were not within the charter powers, the deceased was presumed to know were unauthorized and illegal. National Home Building Association v. The Home Savings Bank et al., 181 Ill. 35.

The alleged contract sought to be enforced in the case at bar was void under the reasoning of this last cited cause, and being void it necessarily becomes our duty, under the Municipal Court Act, in deciding the case upon its merits, to reverse the judgment founded on it, despite the fact that the motion to take the case from the jury, made at the close of the plaintiffs’ evidence, was not renewed at the close of all the evidence. The omission to so renew that motion may have waived the right to complain in any court of review of the precise error of refusing the peremptory instruction, and it certainly would prevent the Supreme Court, under their decisions, from considering the question of the sufficiency of the evidence. Joliet & Northern R. R. Co. v. Velie, 140 Ill. 59; Humiston, Keeling & Co. v. Wheeler, 175 Ill. 314. But it does not relieve us from the obligation of weighing the evidence and, as the plaintiff had nothing to sustain his judgment, of reversing it. The Appellate Court, unlike the Supreme Court, has on it the duty of thus considering and weighing the evidence.

The judgment of the Municipal Court is reversed.

Reversed.


author: Mr. Presiding Justice Holdom

text:
    Chicago City Railway Company v. Jacob Kastrzewa.
    Gen. No. 13,813.
    1. Negligence—when motorman approaching street intersection guilty of. It is negligence for a motorman to drive his car'at a rapid rate of speed when within twenty-five feet of a busy street intersection.
    2. Negligence—when motorman approaching street intersection guilty of. It is negligence for a motorman to drive his car when approaching a busy street intersection without ringing his bell.
    3. Verdict—when not disturbed as against the evidence. A verdict will not be set aside as against the weight of the evidence unless manifestly so.
    4. Instructions—effect of refusal of proper, in Municipal Court. The refusal of a correct instruction in a trial had in the Municipal Court is not ground for reversal if the jury were orally instructed fairly and fully with respect to the case.
    5. Instructions—phrase need not he defined. The phrase “preponderance of the evidence” is significant and self-explanatory and need not be specially defined by instructions.
    6. Degree of cabe—required at street intersections. It is incumbent upon those in control of a street car to exercise a greater degree of care and watchfulness at street intersections than at other places along its route.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 30, 1908.
    William J. Hynes and E. 0. Higgins, for plaintiff in error.
    Frank A. Bockhold and Francis X. Busch, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This action was brought by the plaintiff against the defendant to recover damages resulting from personal injuries sustained by an electrically propelled car negligently striking a wagon driven by plaintiff on the evening of January 14, 1907, at the intersection of Wentworth avenue and Thirty-third street, Chicago.

A trial in the Municipal Court with jury resulted in a verdict and judgment against defendant for $999.

Defendant sues out this writ of error, seeking a review of the record of the trial court, and a reversal of its judgment, and argues as reasons for reversal, on errors duly assigned, that the verdict is contrary to the evidence, and the refusal of the trial judge to give certain instructions to the jury requested by the defendant.

The first contention involves the weighing of the evidence and a determination of its probative force, the credibility of the several witnesses, and which of them are entitled to the greater credence. These are primarily the burden of the jury to solve, and harmonize. As applied to the necessary elements to be established by the proofs, in order to sustain a recovery, they are twofold: First, that the plaintiff was at the time of the accident in the exercise of due care for his own safety; and, second, that the impact resulting in plaintiff’s injuries was primarily caused by the actionable negligence of the defendant.

We have read all the evidence found in the record, a recapitulation of which we do not deem necessary, and are satisfied that it is amply sufficient to establish these dual elements, and also that the jury were justified therefrom in returning the verdict against the defendant, which they did.

That the car was being propelled at an excessive rate of speed, in approaching and crossing the street intersection, the scene of the collision, is clearly demonstrable from the evidence. The collision was the result of the motorman driving the car, not keeping the car in such control as the law requires at street intersections. While the speed at which the car was running might not be regarded as excessive between blocks, yet at a street crossing such speed, with its accompanying lack of ready control, to meet conditions naturally expected to be encountered at such a place, would be excessive, and consequently negligence when an accident ensues resulting from lack of control owing to such excessive speed. The intersection where the collision occurred was habitually frequented by many people and considerable vehicular traffic. It was what is commonly called a “busy corner.” Of this fact defendant is chargeable with notice, and being so chargeable, the law requires it to operate its cars in such a way as to avoid, as far as possible, collisions with persons and vehicles passing along its path, in the exercise of reasonable and ordinary care. Approaching within twenty-five feet of such an intersection, at the high rate of speed proven by the evidence, was negligence in defendant, and to such negligence the jury properly, we think, attributed the accident. Another act of negligence inferable from the proofs, is the failure to ring the bell on the car when approaching the street intersection at a high rate of speed. Regardless of the speed of the car, it was the duty of defendant, in approaching and crossing such an intersection with its car, at such a busy place, to sound the bell to warn pedestrians and drivers of its coming. Its failure in this regard is negligence. C. & A. R. R. v. Corson, 198 Ill. 98.

In Chicago City Ry. v. Touhy, 196 Ill. 410, the court say: “Where the motorman or gripman runs his carat such a rate of speed that he is prevented from keeping control of it so as to stop it within a reasonable distance upon an appearance of danger to others, the rate of speed at which he propels the car is to be deemed unreasonable or dangerous,” and this court, in Chicago City Ry. v. Martensen, 100 Ill. App. 306, said: “This was at the street crossing where the appellant’s motorman was bound to expect that persons and teams would be crossing, and where, in the opinion of the court, appellant was bound to have its car so under control as to be able to avoid running-over or against persons or teams lawfully using the street, and not themselves guilty of any negligent act or omission contributing to the injury, and that it was not contributory negligence in appellee to rely upon the ability of the appellant to so manage and control its car as to avoid the collision, and the jury were justified in so finding.”

In Chicago City Ry. v. Sandusky, 198 Ill. 400, it is held that whether or not negligence can be attributed to a person in driving in front of a moving car, is a question of fact for the jury under proper instructions. To a like effect is W. C. St. Ry. Co. v. Dedloff, 92 Ill. App. 547.

Not being able to say that the judgment is manifestly against the weight of the evidence, we are not permitted to interfere with it.

Defendant complains of the refusal of the trial judge to give to the jury certain instructions proffered for that purpose. The court did instruct the jury orally, and did not give the instructions offered by defendant. This is contrary to the practice and the law governing and controlling other nisi prius courts of this state. But the rules and practice governing the Municipal Court vary in many important particulars from those of other courts of record in this state, and where they are sanctioned by specific provisions of the Municipal Court Act, such provisions must govern to the exclusion of all other rules of practice and procedure. Wherever decisions of the Supreme Court seemingly conflict with the directions and provisions of the Municipal Court Act, they must be treated as being inapplicable and must yield to the latest legislative direction controlling this new adjunct to the judicial branch of our government, at least until such time as the Supreme Court may, if it ever does, hold to a contrary doctrine.

The trial judge in this case instructed the jury orally. In this he was proceeding in conformity to the discretion vested in him by section 37 of the Municipal Court Act. The instructions were confined to the law of the case. Section supra provides, “The court shall charge the jury as to the law only; the charge may, in the discretion of the court, be given orally or in writing. ’ ’

The charge to the jury is found in the bill of exceptions. We have examined it with care, and are constrained to view it as a fair and impartial exposition of legal principles applicable to the case, sufficient to enable the jury to arrive, by its application of them to the proofs, to a correct solution of the controverted questions, and to determine fairly under the law the facts deducible from the evidence.

It is but fair to concede that many of the instructions tendered by defendant contain correct statements of the law germane to the controversy, but not necessary under the new Municipal Court procedure to be given to the jury.

The first instruction criticised by defendant, in which the jury are charged that plaintiff is a competent witness in his own behalf, is because it lacks the qualifying conditions that the jury should take into consideration that he is the plaintiff and interested in the result of the suit, in weighing and giving credence to his testimony, is ill-founded, because the qualifying conditions clearly and plainly appear in another part of the judge’s charge. The further objection that it was error to charge the jury that plaintiff was not required to make, out his case beyond a reasonable doubt, but by a preponderance of the evidence, to entitle him to recover, has no force, since C. C. Ry. Co. v. Nelson, 215 Ill. 436, where an instruction similarly framed was approved. One of the averments of the bill of particulars, being plaintiff’s pleading, was that he was in the exercise of due care and caution for his own safety, and a reference in the charge to the bill of particulars, and a direction that if the jury believed that the plaintiff established the allegations in his bill of particulars, etc., he was entitled to recover, was tantamount to a charge that plaintiff must sustain by proof, before he can recover, that he was in the exercise of due care and caution for his own safety at the time of the accident. C. C. Ry. Co. v. Carroll, 206 Ill. 318.

It is also urged that the trial court erred in not defining in his charge to the jury the meaning of the phrase “preponderance of the evidence.” We do not think this was necessary, as the word preponderance has a well defined and well understood meaning, and was not therefore calculated to mislead the jury. The well and generally understood meaning of preponderance is also its legal definition. There is no variation observable to us.

The court’s charge is also said to be erroneous, in that it is stated “that it is incumbent upon those in control of a street car to exercise a greater degree of care or watchfulness at street intersections than at other places along the route.” With this complaint we are unable to agree. The law was correctly stated. In C. C. Ry. Co. v. Fennimore, 199 Ill. 4, the court quote from Booth on Street Bailways, and say: “ ‘A greater degree of watchfulness is necessary at street intersections, especially at crossings which are usually thronged with vehicles and persons on foot, and at curves in the street or route. ’ It is the doctrine of this court that drivers, gripmen and motormen are obliged to exercise a more exacting attention when they approach street crossings in a crowded city, where vehicles and pedéstrians may always be expected in front of them.”

In C. C. Ry. Co. v. Touhy, supra, the court say: “It is incumbent on those in control of the street car to exercise a greater degree of care and watchfulness at street intersections than at other places along the route. ’ ’

The sentence in the charge so complained of is couched in almost the exact language used on several occasions by the Supreme Court. Many other cases-announcing substantially the same doctrine might be readily cited, but we content ourselves with the citations already made, and the further observation from Fisher v. C. C. Ry., 114 Ill. App. 217: ‘1 This proposition has been decided many times by this court and the Supreme Court; some questions must be regarded as settled; the courts will not go on forever discussing well established principles.”

We think the trial judge was justified in refusing to give all the instructions proffered by defendant. The Municipal Court Act vested him with a discretion to follow one of two courses, viz.: .to charge the jury orally or in writing. He chose the former; such was his statutory right. His charge is not open to any serious objection, for reasons already assigned. But were it otherwise we might say, as was said in Byan v. Donnelly, 71 Ill. 100, “Where it is apparent that substantial justice has been done, as it clearly has been in this case, and the jury could not reach any other result from the evidence, we will not reverse because the court may have refused instructions that might, with propriety, have been given.”

We are not satisfied that the judgment is contrary to the law and the evidence, or resulted from substantial errors of the trial judge directly affecting the issues. It therefore becomes our duty to affirm the judgment of the Municipal Court and its judgment is affirmed accordingly.

Affirmed.


text:
    Century Parlor Furniture Company v. Harty Bros. & Harty Co.
    Gen. No. 13,822.
    1. Landlord and tenant—construction of lease providing for furnishing of power. A lease by which a landlord agrees to furnish certain horse power for the running of a number of specified machines, includes only such machines as are specified, and the provision with respect thereto has no application to other machines subsequently installed, even though some of the original machines may have been at all times inactive.
    2. Verdict—when alight evidence will sustain. Evidence with respect to a fact peculiarly within the knowledge of the defendant, if slight, may sustain a verdict where such defendant has interposed no evidence with respect to such fact.
    Action of covenant. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantby, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 30, 1908.
    Clithero & Bell, for plaintiff in error.
    Btjlkley, Gray & More, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The writ of error here sued out calls for our review of a record of the Municipal Court culminating in a judgment against defendant below in favor of the plaintiff for $388.08 and costs.

Defendant argues, as grounds for reversal, under errors duly assigned, that the trial court erred in its construction of the clauses of the lease involved in this controversy, and that the judgment is excessive and contrary to the preponderant weight of the evidence.

The lease between the parties was for certain floor space and for steam power to move and keep in motion during nine hours of the secular days of the week fifteen machines specifically mentioned in the lease, and for this space and power service for these fifteen machines a certain fixed rental of $162.50 per month was named. For additional machinery added to defendant’s plant an increased rental was provided. The clauses of the lease affecting the contentions argued are encompassed within the fourth and fifth. These clauses read as follows:

“Fourth. The party of the first part agrees to furnish to the party of the second part horse power for the operation of the following machinery: One 27" single surfacer, One 36" Sander, One 36" band saw, one scroll-saw, one shaper, one trim-saw, one boring machine,' one post boring machine, one 18" jointer, one rip-saw, one swing saw, one serpentine shaper, one vertical sander, one cone sander, and one drum sander, for nine working hours each day between the hours of 7:30 o’clock a. m. and 5:30 o’clock p. m. Conditioned, however, that if power is furnished at any time beyond the times hereinabove specified, at the request of the second party, the second party shall pay to the party of the first part the cost of fuel and engineer for the operation and furnishing of power for such overtime. It being understood and agreed, however, that the party of the second part shall be entitled to operate its machinery at any time the party of the first part is operating its power plant for its own use, without cost to the party of the second part.

‘1 Fifth. It being mutually understood and agreed that the party of the first part is to furnish the necessary power to operate shaft and fan now in said premises. The party of the first part further agrees to furnish, not to exceed five additional horse power on request of party of the second part, at a cost of four dollars per month for each horse power.”

Defendant, in July, 1906, without notice to plaintiff, and in fact without its knowledge, installed in the demised premises, and operated in its business, nine other machines. When this fact came to the knowledge of plaintiff, it made a claim for increased rental, under the covenants of the lease. Defendant repudiated liability for any more rental, insisting that under the terms of the lease it was entitled to have furnished horsepower sufficient to operate fifteen machines all the time, that in fact it never did keep in operation fifteen machines, not even after the nine new machines were added to those already installed. Defendant also insisted that it consumed no more horsepower after the installing of the new machines than it did before that time. That the intention of the parties appears, from a construction of the lease and its various provisions, to have been that defendant at all times during the term of the lease was entitled to horsepower sufficient to operate fifteen machines, irrespective of the number of machines maintained by defendant upon the floor space leased. We cannot concede our assent to these contentions. The conceded facts, in the light of the covenants of the lease, are clearly contrary to these contentions. It is admitted that at no time anterior to the installing of the new machines were the fifteen machines set out in the lease kept in operation; that all of the time some of them remained inactive. The covenant to rent the floor space and to furnish steam motive power at a fixed rental of $162.50 a month is clearly limited to the fifteen machines designated, the language of the lease being ‘1 agrees to furnish horse power for the operation of the following machines,” naming fifteen. We have no right to enlarge the contract which the parties have made for themselves by a forced construction, or, as defendant invites us to do, to read into the contract conditions which are not found there. There is no covenant to furnish any limited number of horsepower. The covenants found in the lease are to furnish sufficient steam power to operate certain specifically named machines, and none other. Neither is the fact, if it be a fact, that numerically no more machines were actually operated after the enlargement of the number of machines than before, of any importance or significance. Such fact would not change in any degree the contractual relations of the parties.

We do not regard the covenants of the lease here involved as at all ambiguous; neither is there anything vague or uncertain in them. By clause four the covenant to furpish motive power was limited to fifteen machines, each specifically named. We think, in construing this covenant as excluding other machines from its operation, the maxim eoopressio'unius est ex-clusio alterius is applicable and controlling.

There is no such uncertainty as to the meaning of either of these covenants calling for the application of rules of construction. They are plain, and the intent of the parties therefrom apparent, and, as said in Gibbs v. Peoples Nat’l Bank, 198 Ill. 312, “Where an ambiguity appears and the intention is not clear, rules of construction are useful, but where a clear intention appears on the face of the instrument, they do not apply.”

While the evidence upon which the trial judge assessed damages was meager, and under some circumstances would be most unsatisfactory, still the evidence given was all that was within the reach of or attainable by plaintiff. How often or to what extent the nine new machines were operated, and the amount of horsepower energy used by them from the time they were installed until commencement of suit, were all facts and conditions within the exclusive knowledge of defendant. It chose to keep silent, and offered no proof in diminution of damages. It is too late now to complain. We can do no better in illustration of this point than to quote the language of Mr. Justice Adams in Board of Trade v. Central Grain & Stock Exchange, 98 Ill. App. 212, that “When a party refuses to answer relevant questions, or to produce evidence in his possession or subject to his control, the presumption is that the testimony, if given, or the evidence, if produced, would be unfavorable to him.” So in the case at bar we must construe the silence of defendant upon the question of damages as tantamount to a concession that if the facts known only to it, as to the quantity of horsepower energy consumed in the operation, from time to time, of the nine new machines, were divulged, the assessment of damages by the trial court would not have been diminished, but might have been increased.

We are satisfied that the merits of this case are with the plaintiff, and the judgment of the Municipal Court is therefore affirmed.

'Affirmed.


text:
    The Toledo Computing Scale Company, Defendant in Error, v. Oscar Tyden and Carl A. Tyden, Plaintiffs in Error.
    Gen. No. 13,826.
    1. Practice—what requirments of hill of particulars in Municipal Court. Precision, and exactitude of statement in a bill of particulars are not required by the Municipal Court Act in cases where written pleadings are not essential. All that the act demands is a bill of particulars sufficient to apprise the defendant of the nature and character of the demand made against him.
    2. Contracts—when note and written contract construed as one instrument. A note and a written agreement as to the mode in which the former shall be payable, where executed together, are construed as one instrument.

      3. Measure of damages—when general rule pertaining to cause of action for refusal to accept merchandise ordered does not apply. Held, that under the contract between the parties in this cause the general rule as to the measure of damages in an action for refusal to accept merchandise ordered did not apply.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Mancha Bbuqgembyer, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 30, 1908.
    Atwood, Pease & Loucks, for plaintiffs in error.
    Albert H. Meads, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

It is sought by this writ of error to reverse a judgment of the Municipal Court entered on the verdict of a jury for $240. The verdict was instructed by the court, and in so doing it is contended the court committed error. It is also contended, with much plausibility and citation of supporting authority, that the court took an erroneous view as to the measure of damages and in excluding from the consideration of the jury evidence of the value of the scales, the con-1 tract price of which, less $30 paid on account, was the subject-matter of the suit. It is álso contended that the proof is so variant from the bill of particulars filed in the cause by plaintiff and constituting its statement of claim as to preclude plaintiff from recovering in this action. Precision and exactitude of statement in a bill of particulars are not required by the Municipal Court Act in this class of eases. All that the act demands is a bill of particulars sufficient to apprise a defendant of the nature and character of the demand made against him. The bill of particulars in the record sufficiently fulfilled this requirement. It is not pretended that defendants were in any manner misled to their detriment, or prevented from interposing any defense which they might otherwise have interposed to the claim. If defendants desired a more specific bill of particulars, they should have moved for an order requiring one. If they needed any information not disclosed by the bill of particulars in relation to the plaintiff’s claim, they could have procured it by propounding interrogatories to plaintiff, as provided by the Municipal Court Act. The main purpose of the Municipal Court Act is to simplify procedure and to avoid the technicalities of common law pleading.

Plaintiff rested its case after offering in evidence the note of defendants for $240. This was sufficient, if unrebutted, to authorize a recovery. But the fact remains that the note was not in itself decisive of plaintiff’s right of recovery, as developed by the proofs of the defendants. Upon such proof rests the right of plaintiff to maintain this action. The note being no more than evidence corroborative of the contract existing between the parties. The parties entered into a contract in writing by which the plaintiff agreed to sell to defendants three scales at the aggregate price of $270. On this contract defendants paid $30 and gave the note in evidence for $240, The contract provides that the title to the scales shall remain in plaintiff until full payment therefor is made, and that the contract should not be countermanded by defendants, and that if defendants refused to accept the scales when tendered, the whole amount unpaid should immediately become due and payable. The contract is dated January 8, 1907, and on the twenty-sixth day of the same month defendants by letter notified plaintiff that they cancelled the order for the three scales covered by the contract. The scales were subsequently tendered to defendants at their store in Chicago, but they refused to accept them. The scales were again tendered in the Municipal Court upon the trial.

It is conceded that the giving of the note in no way changed the contract as between the parties, and the question presented for our decision involves the rule of law governing the rights of the parties under the. contract and the evidence of the action of the parties subsequent to its making. The court say in Bradley v. Marshall, 54 Ill. 174: “The note and the written agreement as to the mode in which it should be payable, having been executed together, are to be construed as one agreement.” We shall so treat the note and contract contained in the record before us. The contract, it is insisted, is executory in its nature; that the title to the scales never passed out of plaintiff, and that such title still remains in plaintiff, and that therefore the measure of damages recoverable in this action is the difference between the contract price and the market price at the time of the refusal of defendants to carry out their part of the contract by accepting the scales when first tendered. We have no disposition to disagree with the authorities cited by counsel—and they are many—which hold to the doctrine that in cases of an executory contract, where the title to the property remains in the vendor and never passed to the vendee, the measure of damages upon refusal of the vendee to accept and pay for the property is the difference between the contract price of the commodity bargained and its market value at the time of the breach by the vendee. We are in accord with the doctrine as thus announced. It is well stated in this state in Burnham v. Roberts, 70 Ill. 25, and has not been departed from since. It is sustained by text-writers, and may be found in 2 Benjamin on Sales, 6 Am. ed. 971; 2 Meacham on Sales, 1373. But the difficulty with defendants’ attitude arises, we think, from a misconception of the nature, effect and purport of this contract. It is akin to an executory contract. It is an executory contract, with the qualification that at the option and by the act of the vendor plaintiff it may become an executed contract. This is evidently its legal import. One of the strong evidences that it was so intended is gathered from the agreement of the parties that defendants could not countermand the order. As they could not do so, it follows that it was the intention of plaintiff to retain the power to hold defendants to their contract by making delivery at its option. Defendants could only insist on being vested with title to the scales upon the performance of one condition, viz., payment in full; but plaintiff could waive the executory part of the contract by tendering the scales and demanding the amount remaining unpaid. This it did, and from that time the contract became an executed one, so far as plaintiff’s rights are concerned, and thereby the title to the scales vested in defendants, for whom plaintiff thereafter held possession only. The tender was kept good and continued effectual by again being made at the trial.

The doctrine in this jurisdiction is that promulgated in Osgood v. Skinner, 211 Ill. 229, affirming on further review the decision of this court to be found in 111 Ill. App. 606.

White v. Solomon, 164 Mass. 518, is an exceedingly interesting and instructive case. The amount at stake was insignificant, but the legal principle involved subtle and far reaching. It cannot be gainsaid but what the decision in White v. Solomon, supra, demonstrates that the legal doctrine discussed is not free from doubt. The dissenting opinion is as vigorous and as well supported by citation from the opinions of courts of recognized eminence as the majority opinion pronouncing the law for that forum. The court there say: “¥e are not to construe the equities into the contract, but to carry it out as the parties were content to make it. If a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so and thereby binding himself to pay the whole sum. When, as here, all the conditions have been complied with, the performance of which by the terms of the contract entitles the vendors to the whole sum, if the vendors have not either broken the contract or done any act diminishing the rights given them in express words, the buyer cannot, by an act of his own repudiating the title, gain a right or recoupment, or otherwise diminish his obligation to pay the whole sum which he has promised.”

We do not wish to be understood as in the slightest degree departing from the doctrine that where chattels are sold under an executory contract, with title remaining in the vendor until payment of the contract price by the vendee, and the failure of the vendee to perform his part of the contract, that the measure of damages for such breach is the difference between the contract and the market price. But the case at bar, as we have already shown, is, under the conditions of the contract, so clearly distinguishable from the conditions supporting such rule and doctrine as to make that rule inapplicable.

While the contract in some of its aspects is executory and might be so maintained by the plaintiff, yet its provisions inhibited in express terms the right of defendants to abrogate or rescind it. The vendor must be held to have had in mind such purpose, and by the terms of the contract made such purpose and the intention inferable therefrom effectual, viz., the thwarting of any purpose or right on the part of the vendees to refuse to accept the scales, and to reserve thereby an option to itself to change the executory nature of the contract by tendering to vendees the scales and demanding the amount remaining unpaid. This plaintiff did. The contract thereby became executed on their part, with the right resulting to it to demand and receive from defendants, and on their failure to pay, to sue them for the unpaid purchase price.

Appleton v. Norwalk Library Corporation, 53 Conn. 4, is similar in fact and principle to the case at bar. That was a sale of books to be paid for in instalments, title to the books remaining in seller until payment in full. The purchaser sought to avoid the contract by returning the books received, and the court say: “It is true that the title to the goods did not pass and could not pass until the full sum of $90 had been paid, but the promise to pay' that sum was absolute. "Whence, then, come the defendants’ right to return the books in full satisfaction and discharge of the contract and thus leave a great part of the installments unpaid? But this is not their only remedy. The contract expressly further provides that, in case of such breach, all the remaining unpaid installments shall immediately become due and payable. If they become due and payable in consequence of non-payment, of course a suit could be maintained for their recovery.”

The decision of the Municipal Court is right and its judgment is affirmed.

'Affirmed.


text:
    Frank F. VanAlstine, Plaintiff in Error, v. Emily J. McAldon et al., Defendants in Error.
    Gen. No. 13,833.
    1. Duress—what essential to constitute, entitling relief in equity. In order to obtain relief in equity upon the ground of duress, it must appear that the means resorted to were sufficient for the time being to deprive the complainant of the exercise of his free will and understanding in what he did, so that such acts, instead of being the exercise of free will, were compelled by the dominant will of another.
    2. Duress—what does not constitute. It is not ipso facto unlawful to threaten civil proceedings to enforce a legal demand; such a threat is insufficient to support a claim of duress.
    3. Res judicata-—when established. Where the questions sought to be presented in one case have been properly raised and determined in another cause arising between the same parties with respect to the same subject-matter, the court having jurisdiction both of the parties and of the subject-matter, a res judicata is established.
    Bill in chancery. Error to the Superior Court of Cook county; the Hon. Geokqe A. Duput, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 30, 1908.
    Church, Sherburne & Sass, for plaintiff in error.
    Livingston & Bach and Livingston & Stern, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The sustaining of a general and special demurrer to the amended bill of plaintiff in error and the dismissing of the same for want of equity are claimed to be so erroneous that this court ought to reverse the decree of the chancellor and send the bill back tb the Superior Court for answer and a trial upon the merits. With that end in view this writ of error has been sued out.

Complainant below electing to stand by the averments of his bill, the question before us for decision is whether the amended bill, with its material averments uncontradicted, entitles complainant to any of the relief prayed. In other words, if all the material and essential facts averred are true and sustained by the proofs, are they sufficient to sustain a decree for the relief sought. The most convincing argument that they are not rests in the record of the Appellate Court in the Second District in a case where all the facts and most of the questions here involved were there decided, as appears from the opinion of Mr. Presiding Justice Willis in McAldon et al. v. VanAlstine, 135 Ill. App. 396. That case was decided upon its merits, after hearing the proofs of the parties on bill, answer and replication. In this it differs from the ease at bar, which is before us on the sustaining of the demurrer, a dismissal of the bill following.

The demurrer contains this special assignment: “That said amended bill upon its face shows that the complainant surrendered the notes therein mentioned voluntarily, and that the same was his act, and that said bill does not show any duress practiced by these defendants upon the complainant.”

The bill charges inter alia that complainant had advanced money with which to pay premiums upon a life insurance policy in favor of defendant, Emily J. Mc-Aldon, on the life of her sister, and had taken an assignment of the policy as security for premiums advanced and premiums which he might advance in the future; that James McAldon, the husband of Emily J. McAldon, being indebted to one C. 0. McClellan in the sum of $500, on April 12, 1900, gave his note for that sum, payable in one year after date, with interest at the rate of six per cent, per annum, payable semi-annually, and secured the said note by a trust deed executed by himself and wife to Daniel J. Avery, trustee, conveying certain real estate in Chicago; that James McAldon died October 15, 1902, and that by his will he vested the title to the property secured by the trust deed to Daniel J. Avery in his wife, the said Emily J. McAldon, subject to its lien; that complainant May 4, 1903, purchased the $500 note secured by the trust deed, and Emily J. McAldon on August 12, 1904, conveyed the real estate described in the trust deed securing the note unto Fred S. Larson, subject to the lien of the trust deed and subject also to a life estate reserved in the conveyance to herself. Complainant then charges that from February 19, 1904, until November 8, 1904, he was the Bepublican candidate for clerk of the Circuit Court of Woodford county in this state; that during that time “his health was poor;” that about October 10, 1904, the defendants, Emily J. McAldon and Fred S. Larson, together with W. H. Foster and J. I. Kerr, entered into a conspiracy to cheat and defraud him and to obtain and take from him, by false and fraudulent pretenses and unlawful threats, the aforesaid note and trust deed; that in furtherance of such unlawful conspiracy, about three weeks before the day of election, the said W. H. Foster represented to him that the defendant, Emily J. MeAldon, claimed that a part of the contract by which he got possession of the life insurance policy above mentioned was that he should cancel and surrender the $500 note, and that L. C. Hay, an attorney at Bloomington, had prepared a bill ready to file in the Wood-ford county Circuit Court specifically to enforce said contract and to cancel the note and compel a surrender of the trust deed securing’ the same; that such bill would publicly charge complainant with many unlawful and fraudulent acts, which would have the effect of impugning his integrity and endangering and maybe defeating his election, and that the only way open to him to avoid the disastrous consequences so unlawfully threatened was to submit to the demand and yield possession of the note and trust deed, which he accordingly did by delivering the same uncancelled to J. I. Kerr; avers that none of the charges made were true, and that the note and trust deed were surrendered without any consideration; that said $500 note was by some one can-celled after its surrender and the trust deed released by Avery, the trustee, and delivered to Larson, who filed the same for record in the recorder’s office of Cook county; prays an annulment of the Avery release deed, and that complainant may be adjudged the lawful owner of the note and trust deed, and that the trust deed be foreclosed to pay the amount of the principal and interest of the note secured by it, and for solicitor’s fee and costs, etc.

The application of the doctrine of duress is invoked as entitling complainant to the relief sought by his bill. If the means resorted to were sufficient, for the time being, to deprive complainant of the exercise of his free will and understanding in what he then did, so that such acts, instead of being the exercise of his own free will, were compelled by the dominant will of another, he might be entitled to relief from the results of the acts so coerced. There is, however, no averment that complainant did not fully know and understand what he was doing and the effect of such acts, and none that he was not in his right mind and compos mentis. Neither is it averred that any degree of force was used to compel him to take the action he did by complying with ■ the requests made upon him for the reasons urged upon him, which, if true, justified the acts complained of. It is true that complainant was a candidate for the suffrages of the people at the time of the transactions challenged, and that it undoubtedly would have been embarrassing to the prosecution of his campaign to have a bill filed in the political bailiwick which was the scene of such campaign impugning the fairness of his dealings with the widow of a former citizen; yet these facts in no way curtailed the right of Mrs. McAldon to seek her remedy in the manner threatened or to take advantage of the psychological moment thus presented to assert her claim and compel the complainant to perform his contract. It is not ipso facto unlawful to threaten civil proceedings to enforce a legal demand, and such a threat is insufficient to support the claims of duress. Weber v. Kirkendall, 44 Neb. 766.

Even to threaten a criminal prosecution does not constitute duress where no warrant has been issued or criminal proceedings commenced. Loan & Protective Assoc. v. Holland, 63 Ill. App. 59.

To set aside transactions of the nature involved in this dispute on the ground of duress, complainant must have been at the time he acted in fear of his life or bodily harm if he refused, and his mind so affected and his free will so overcome by the means used that he in fact lost his freedom of will to such an extent that he did not understand the effect of his actions; that the things done were coerced, and as a consequence lacked the element of free will. Hagan v. Waldo, 168 Ill. 646; Hintz v. Hintz, 222 ibid. 248.

The bill discloses that the surrender of the $500 note and the trust deed to Avery securing it were the voluntary acts of complainant, and it follows that from the. consequences of such voluntary acts a court of equity cannot afford him relief.

We are of the opinion that the rights of complainant in the matters set forth in the bill having been before the Circuit Court of Woodford county, as appears from the opinion of the Appellate Court in the Second District, supra, and this court having decided contrary to complainant’s contentions, and no further appeal being prosecuted, that all the questions there involved and adjudicated and here again sought to be further litigated, are res adjudicaba, and complainant is in consequence barred from again calling them in question in another forum.

Lord Hardwick’s definition of the doctrine of res adjudicaba in Gregory v. Molesworth, 3 Atkyns, 626, is terse and comprehensive and often quoted with commendation. It is: “When a question is necessarily decided in effect, though not in express terms, between parties to the suit, they cannot raise the same question as between themselves in any other suit in any other form.”

The Supreme Court of Massachusetts well defined the doctrine in Foster v. Busteed, 100 Mass. 409, in these words; “The doctrine of res adjudicaba is plain and intelligible, and amounts simply to this— that a canse of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal, cannot afterwards be litigated by a new proceeding either before the same or any other tribunal.”

The litigation in the Woodford Circuit Court, regfching finality by the decision of the Appellate Court in the Second District, fulfills all the essential requirements last quoted. The decree of the Superior Court sustaining the demurrer to the amended bill and dismissing it for want of equity is affirmed.

Affirmed.


text:
    Harry S. Lewis, Defendant in Error, v. Bidwell Electric Company, Plaintiff in Error.
    Gen. No. 13,841.
    1. Corporations—What conversion of corporate stock. A conversion of corporate stock will be attributed to a corporation, first, if it sells or declares a forfeiture of stock, wrongfully, and, second, where it wrongfully refuses to recognize a valid transfer and to register such a transfer and issue a new certificate to the transferee.
    2. Parties—who proper party to maintain action for illegal conversion of corporate stock. Where a corporation has converted corporate stock by refusing to issue a certificate to a legal transferee, the remedy and right of action rest solely in the transferee.
    Trover. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 30, 1908.
    Norman A. Beck, for plaintiff in error; A. M. Laslet, of counsel.
    Eldridge & Bose, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The cause here brought for review on the writ of error sued out of this court to the Municipal Court of Chicago, which has been made to operate as a supersedeas by an order of this court, seeks to reverse a judgment of the Municipal Court for $363, rendered without the intervention of a jury.

' Plaintiff is a broker and dealer in stocks and bonds at Chicago. He bought at various times during the months of February and March 1,100 shares of the stock of the defendant corporation. These shares were represented by three certificates, which were assigned in blank and delivered to plaintiff. The 1,100 shares were afterwards sold by plaintiff to Ellis & Co. of San Francisco, who directed that certificates for the stock be made out to different persons named in the numbers of shares designated. Ellis & Co. resold them and gave these transfer instructions to plaintiff. The three certificates were presented to the defendant company at their Chicago office, and the transfer requested and certificates evidencing such transfer asked to be issued in the names of the several subpurchasers.

Defendant refused to make the transfer and deliver the new certificates requested for the stock, except upon the payment of a transfer fee of one dollar for each one hundred shares of stock. Plaintiff refused the amount demanded and tendered $2.75 for transfer fee, claiming that the usual charge for transfer fee in Chicago was twenty-five cents per one hundred shares. The defendant refused to accept the tender and the transfer was not made. This suit was then commenced to recover the market value of the stock at the time of the refusal to make the transfer, upon the theory that such refusal was in law tantamount to a conversion of the stock by the defendant. Plaintiff says in his brief that “this suit is in effect an action of trover, ” and for the purposes of this opinion we will so treat it. There are many very interesting questions of law raised and discussed in the briefs, but we shall disregard all of them but the one controlling and decisive question, viz.: whether plaintiff has sufficient title to the stock to enable him to maintain an action as for a conversion of it.

It is patent from the testimony of plaintiff that he is not the transferee of the stock. The stock sought to be transferred has been sold by the plaintiff to Ellis & Co., acting for others, and the transfer requested was for the beneficial owners. Plaintiff at no time expressed any desire to have the transfer made for himself. In all his dealings with, and requests made of, defendant, plaintiff was acting for the transferees, and so stated, and made no claim to ownership of the three certificates which he originally bought and subsequently sold.

The application of the law cited by plaintiff to the facts resting in plaintiff’s proof appears to us to result in defeating Ms claim. In. Clark & Marshall on Private Corporations, sec. 379, two conditions are stated from which a conversion of stock will be attributed to a corporation: First. If it sells or declares a forfeiture of stock, wrongfully; and, second, where it wrongfully refuses to recognize a valid transfer and to register such a transfer and issue a new certificate to the transferee. In each of these cases the owner may maintain trover and recover the value of the stock as damages for the conversion. The decision in Ralston v. Bank of California, 112 Cal. 208, is in accord with the rules laid down in Clark & Marshall, supra. The remedy and right of action are restricted to the transferee, the owner of the shares represented by the certificate. The rule is thus stated by the CaliforMa court supra: “It may be stated as a rule that where a corporation refuses to allow a transfer of shares upon its books, the assignee may treat this as a conversion of his shares and sue the company for their value.” Referring to an alternate remedy in eqrnty, the court say supra-. “A suit in equity where registration of the transfer may be compelled or damages recovered as an alternative may be preferable, but it is not exclusive of the remedy invoked in this action.” Cook on Corporations, sec. 576, lays down the same principle as to who is vested with the right of action. It is there said: “It is well established that the refusal of a corporation to register a transfer in the name of one entitled to the stock is a conversion of the shares.” This clearly indicates the transferee as the party entitled to bring the action.

It is but logical that such should be the law. It is the common sense view of the situation so presented. What damages possibly could result to the seller by the refusal of the corporation to make the transfer? Clearly none. No case can be found, and none is cited, where the seller of the stock ever recovered damages for the refusal of the corporation to make the transfer and issue a certificate to the transferee. Sec. 603, Clark & Marshall, supra, announces the doctrine thus: “If a corporation wrongfully refuses to recognize a valid transfer of stock on its books, the transferee has two remedies. The duty to permit a transfer raises an implied promise on the part of a corporation, for a breach of which the transferee may maintain an action of assumpsit to recover the damages sustained by him by reason of the refusal. Or he may treat the wrongful refusal to allow a transfer as a conversion of the shares and recover damages in an action of trover for the conversion. Or he may maintain a special action on the case.” This text is supported by many decisions, American.and British, cited in the foot notes on page 1839 et seq.

Plaintiff had no title to the 1,100 shared of stock of the defendant company; consequently he has no right to maintain this action.

The judgment of the Municipal Court is reversed.

Reversed.