text:
    John C. Outhet, Jr., by L. L. Barth, next friend, and L. L. Barth, Guardian, Appellants, v. George A. Follansbee et al., Appellees.
    Gen. No. 25,251.
    1. Trusts, § 183

      —what will not justify sale of trust property. That the interests of those entitled to the income from trust property will be best subserved by breaking in upon the trust and disposing of its subject-matter in violation of the donor’s express intention does not warrant such action by a court of equity when not necessary to preserve the trust estate.
    2. Trusts, § 154*—when investment of trust property will he denied. Where a will provides that a minor shall be paid $100 a month, in the discretion of the trustee, such allowance to be used for the minor’s support and maintenance until he is 25, at which time he will receive, under the will, in excess of $450,000, a court of equity will not direct the trustee to procure $500,000 insurance on the life of such minor, which will require the payment of an annual premium of $9,000, notwithstanding the annual income of the estate beyond the amount necessary for such minor’s monthly allowance is $18,000, and, in the event of his death before reaching 25, his whole interest in the estate will pass to the trustee and other cousins of the testator and the minor desires to protect the interests of his mother and others who may be dependent on him should he marry before reaching the age of 25, since to do so would modify the expressed intention of the testator.
    Appeal from the, Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Mayer, Meyer, Austrian & Platt, for appellants.
    Adams, Follansbee, Hawley & Shorey, for appellee George A. Follansbee, as trustee; Samuel Adams, of counsel.

      Geoege A. Follansbee, pro se, individually.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from a decree sustaining the various demurrers to a bill filed by a minor beneficiary, John C. Outhet, Jr., and his guardian, against a trustee and various contingent remaindermen designated or referred to in the will of Reuble M. Outhet, whose son, John O. Outhet, was the father of said minor. Reuble M. Outhet died September 18, 1907, and his will was executed in April of that year, and a codicil thereto, May 1, 1907. The minor was born in 1901.

The bill sets forth the will and codicil at length; that John C. Outhet, was for his fault divorced from the minor’s mother, and died leaving said minor his only child; that the minor’s mother has since married ; that a decree of court has been entered relating to the disposition of the trust estate provided for in the will, in accordance with the decision in Wayman v. Follansbee, 253 Ill. 602, one-half of which, under the exclusive management and control of the trustee, George A. Follansbee, still awaits distribution in accordance with the terms of said will as construed in said decision; that the interests of said minor in said one-half, if the same were an absolute vested interest, would be in excess of $450,000; that said minor is entitled under said will at the present time out of said estate to only $100 per month until he shall attain the age of 25 years, which payments, the will provides, are subject to the discretion of said trustee, and may, for any reason the trustee may deem best, be withheld, it being the expressed desire of the testator that said payments and allowances shall be used as far as necessary in the minor’s support and education; that said minor will have no certain transferable or descendible interest in said trust property in case of his death before reaching the age of 25 years when he will receive a legacy and the rest of the entire estate; that in case of his death before reaching such age, the entire trust estate will go to said trustee and other cousins of the testator; that the annual income of the estate beyond what is necessary to make said monthly payments to the minor is in excess of $18,000, of which there will be occasion to expend but little in the care of the estate; that it is possible to obtain insurance on the life of the minor to the extent of $500,000, in companies of the highest financial responsibility under policies that will be incontestable after one year on which the gross annual premiums will be but $9,000 per year, the cost of carrying which until the minor reaches the age of 25 years will not exceed $31,500; that such an arrangement “is greatly to the interest of the minor,” who desires to protect the interests of his mother and' others that might be dependent upon him should he marry before reaching the age of 25, and that the creation of an insurance fund “would remove the present abnormal condition by which the enjoyment and benefit of a considerable fortune is entirely dependent upon his attaining the age of 25 years. ’ ’

The bill as amended prays that the trustee may be directed out of such accumulating income of the trust estate to pay the premiums on such insurance policies, upon condition that they shall be lodged with the. trustee and proper orders entered authorizing the guardian to assign such policies to the trustee, so that in case of the death of said minor before his right to the trust estate shall become vested, all sums theretofore advanced by the trustee out of such income, together with the interest thereon, shall be repaid to the trustee to be added to the corpus of the estate, thus protecting the remaindermen in case of the minor’s death before he reaches the age of 25.

The argument in support of the bill emphasizes, in the absence of any express authority to do the thing asked for, the so-called “abnormal condition” whereby, unless the minor attains the age of 25 years, no benefit from the estate will accrue to him beyond the monthly payment of $100 in the meantime, and in case of his death before that time no benefit therefrom will ever accrue to his heirs or next of kin, and en-' larges upon the fact that if the contemplated arrangement were effected it would greatly enhance the useful and financial interests of the minor, convert a contingent estate into a certain estate, and result in no impairment of the interests of the contingent remaindermen or any of the beneficiaries of the trust.

In this connection it is also urged that the justice of the proposal is such that the inherent power of a court of equity may properly be invoked to render it, even in the absence of any precedent to support the exercise of such power. Forcible as this argument may be from such point of view alone, it should not prevail if it conflicts with other established doctrines.

It will be conceded, as argued by appellant, and as said in Dodge v. Cole, 97 Ill. 338, 364, that “the fact that no precedent can be found in which relief has been granted under a similar state of facts is no reason for refusing it.” But the prayer of the bill practically asks for a modification of the trust with respect to matters that cannot be said to have been unforeseen by the testator. It cannot be questioned that the testator had the right to give such estate to whomsoever he saw fit and “to say at what period of time they shall come into the enjoyment and control of it” (Rhoads v. Rhoads, 43 Ill. 239, 254), and that “the fact that the interests of parties entitled to the income from trust property would be best subserved by breaking in upon the trust and disposing of the subject-matter thereof in violation of the donor’s express intention does not warrant such action by a court of equity when not necessary to preserve the trust estate.” (Johns v. Johns, 172 Ill. 472; Stephens v. Collison, 274 Ill. 389.)

In the last ease it is said:

“Courts are slow to exercise their power even to modify the terms of a trust, and will only do so when it clearly appears to be necessary. (Citations) Where the trustees cannot, under the existing circumstances, or any circumstances that can be anticipated, so manage the trust fund as to parry out the plain intentions of its creator, and such circumstances were clearly not within his contemplation or the subject of any direction in the scheme of the trust as formulated and prescribed by him, a case of necessity is presented requiring the intervention of a court of equity, which may direct a change in the management of the trust fund if by such change the manifest intention of the creator of the trust may be carried into effect.” (pp. 395, 396.)

The facts set up in the bill show no such necessity nor any exigency or unforeseen condition such as are referred to in the case last cited, or that would, in our opinion, warrant a court of equity so to break in upon the trust. No facts are presented showing a necessity of the court’s intervention to preserve this estate, or that the testator’s intention may be defeated, or that an unforeseen condition of affairs not within the contemplation of the testator has arisen. The testator may well have deemed it for the best interests of the minor that he should have no other benefit or enjoyment from the trust fund before he reached the age of 25, that his character would be stronger and habits better without the indulgence which the use of such a fortune might invite. And had it been the intention of the testator that the minor’s heirs or next of kin, either in the meantime or on his death before reaching the age of 25, should derive benefit from said estate, his will would unquestionably have so provided. But no such intention is disclosed therein. We cannot regard the bill in any other light than an effort to modify a trust in a manner not contemplated by the creator of it in a case where existing circumstances could have been readily anticipated by him, and could have been expressly provided for had he so desired. In this view of the case other points argued for dismissal of the bill need not be considered. Accordingly the decree will be affirmed:

Affirmed.

Mr. Justices G-ridley and Hatchett concur.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Jennie Philippe, Defendant in Error, v. John J. Curran and Isabella Curran, Plaintiffs in Error.
    Gen. No. 25,355.
    1. Parties, § 38

      —when omission of name of party in caption not equivalent to discontinuance. Where one is named as one of the defendants in the original prcecipe in the. original statement of claim and in the summons, is duly served by the bailiff, in her affidavit of merits to plaintiff’s second amended statement of claim her name appears in the caption as one of the defendants and she is described as one of the defendants in the body thereof, is represented at the trial by her attorney who takes an active part therein and submits propositions of law to the court, a contention, first raised in the Appellate Court, that the omission of her name in the caption of plaintiff’s second amended statement of claim is tantamount to a discontinuance of the action as to her, under the rule (15a) of the municipal court of Chicago, providing that every pleading shall be entitled with the names of the parties, is untenable.
    2. Municipal court of Chicago, § 13*—when failure to file bond sued on is immaterial. Under the practice in ■ the municipal court of Chicago, the objection that a copy of the bond sued on-is not filed with plaintiff’s second amended statement of claim is without merit, especially where a copy of the bond was filed with plaintiff’s original statement of claim and in said amended statement reference is made to the copy originally filed.

      3. Building and construction contracts, § 77

      —what does not affect surety’s liability on bond. The liability of a surety on bond to insure the erection in one year of a building or improvement by the principal on property purchased by him is separate and distinct from such principal’s liability under the trust deed given by him to secure the payment of his note for the purchase price of the property, which note such surety neither signed nor guaranteed, and the question of the surety’s liability on the bond had no proper place in and was not affected by the foreclosure under the trust deed.
    4. Building and construction contracts, § 78*—ufhat evidence is essential to recovery for breach of agreement. In an action to recover on a bond given to insure the performance of the agreement of the purchaser of property to erect thereon in one year a building or improvement to cost not less than a specified amount, it is essential to a recovery by the plaintiff that he introduce evidence as to the value of the property without the building or improvement and its value with such improvement.
    5. Building and construction contracts, § 78*-—what building is contemplated by bond for erection on property purchased. In an action to recover on a bond given to insure the performance by the purchaser of property to erect thereon in one year a building or improvement to cost not less than a specified amount, held that it would be presumed that the parties had in mind the construction of a building or improvements suitable to the locality.
    6. Building and construction contracts, § 78*—what is measure of damages for breach of agreement to erect building. In an action to recover on a bond given to insure the performance by the purchaser of property to erect thereon in one year a building or improvement to cost not less than $10,000, held that the measure of damages was the difference between the value of the property without such improvement and its value with such improvement at the time of the breach, and that the evidence supported a verdict of $5,435.49 with interest from the date of the decree.
    Error to the Municipal Court of Chicago; the Hon. Irwin R. Hazen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Rehearing denied July 28, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Leslie A. Gilmore, for plaintiffs in error.
    Either & Goff, for defendant in error.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

In a first-class action in debt on a bond,. commenced in the municipal court of Chicago on June 8, 1912, and tried before the court without a jury, the court, on February 15, 1919, found the issues against the defendants, John J. Curran and Isabella Curran, and assessed plaintiff’s damages at the sum of $7,247.12. On the same day, after defendants’ motions for a new trial and in arrest of judgment were overruled, the court entered judgment on the finding against defendants in the sum of $10,000 in debt and the sum of $7,247.12 damages, together with costs, the debt to be discharged upon the payment of said damages, costs and interest. This writ of error is sued out to reverse the judgment.

In plaintiff’s original statement of claim a copy of the bond sued on is attached thereto. It is in the sum of $10,000, dated July 2, 1909, and is signed, sealed and acknowledged by both defendants. They therein acknowledge that John J. Curran, as principal, and Isabella Curran, as surety, are held and firmly bound unto Jennie Philippe in said sum. The condition of the obligation is:

“Whereas said John J. Curran has this day purchased from Jennie Philippe the premises known and described as the north twenty-five (25) feet of the south one hundred (100) feet of lot seventeen (17) in block one hundred and twenty-four (124) in school section addition to Chicago, otherwise described as lot five (5) in the Assessor’s Division of said lot-seventeen (17) situated in the City of Chicago, Cook county, Illinois, and as part consideration therefor doth promise, undertake and agree that he will, within one year from date hereof, erect a building or improvements upon said premises which shall cost not less than ten thousand ($10,000) dollars, and shall and will pay promptly at maturity, all claim for labor or material used in the construction of said building or improvements, and will and shall indemnify and save said Jennie Philippe harmless from any and all mechanics’ liens and claims or demands of any kind or nature arising or growing out of the erection of said building or improvement.

“Now if the said John J. Curran shall fully and faithfully perform all of the agreements and undertakings on Ms part hereinabove mentioned, then this obligation to be void, otherwise to remain in full force and effect.”

In plaintiff’s second amended statement of claim, filed June 9, 1916, it is alleged in substance that on June 2, 1909, John J. Curran purchased from plaintiff certain real estate in Chicago; that as a part consideration for such purchase said Curran entered into a bond on or about said date with Isabella Curran as surety, which bond was delivered to plaintiff; that a copy of the bond is on file in this cause attached to the original statement of claim; that by the terms of said bond said John J. Curran agreed to erect a building or improvements upon said real estate costing not less than $10,000 within one year from the date thereof; that as a further consideration for the purchase of said real estate said Curran executed and delivered to plaintiff Ms promissory note for $30,000, bearing said date, payable on or before 10 years after its date, with 5 per cent interest per annum payable semiannually, which said note contained a provision that it would become due, at the election of the holder, if default was made in the payment of any interest and such default continued for 30 days, and which said note was secured by trust deed upon said real estate; that said Curran neither within one year nor at any other time did erect a building or improvements upon said real estate costing $10,000 or any other sum; that he defaulted in the payment of interest on said note, and plaintiff thereupon filed a bill in chancery in the superior court of Cook county to foreclose said trust deed, and a decree was entered by said court, finding that said Curran was indebted to plaintiff in the sum of $33,562.18 and costs, and ordering that said real estate be sold; that the same was sold thereunder for the sum of $28,500, and a deficiency decree was entered in said court on June 7, 1912, in favor of plaintiff and against said Curran for the sum of $5,062.18, together with costs amounting to $373.31, or a total of $5,435.49; that had the said building and improvements been erected, the said real estate on July 2, 1909, and at all times since, would have been of the value of more than $36,000; that said real estate in the condition it was on July 2, 1909, and at all times since, without said building or improvements thereon, was worth not to exceed $28,500; and that by reason of the foregoing plaintiff has sustained damag’es, because of the breach of the covenants and conditions of said bond, to the amount of $5,435.49, with interest thereon at 5 per cent per annum from June 7, 1912.

The affidavit of merits of Isabella Curran to said second amended statement of claim is to the effect that she is not liable on the bond described therein in any sum; that she was discharged and released prior to the institution of the suit; that said statement of claim does not disclose any indebtedness nor liability on her part to plaintiff; and that not being advised that, had said buildings or improvements been erected on said real estate, the value of the whole would have been more than $36,000 as alleged, and, not knowing where the said building or improvements were to have been erected or what their character was to be, she demands that strict proof be made.

On the trial the evidence introduced by plaintiff supported all the material allegations of her second amended statement of claim. Plaintiff introduced among other instruments (1) the original bond signed and acknowledged by both defendants; (2) the bill of complaint in the foreclosure suit mentioned, filed in February, 1912; (3) the master’s report; (4) the decree of sale entered by said superior court on May 10, 1912; (5) the master’s report of sale and distribution, showing that the premises were sold to plaintiff fot $28,500, and of which sum the master paid her $28,139.05 and disbursed the residue for costs, etc.; (6) the order confirming the master’s report of sale, and the deficiency decree, entered June 7, 1912, against John J. Curran, ordering that he pay to plaintiff the sum of $5,435.49, with interest thereon from the date of said master’s sale. Plaintiff also introduced the testimony of William H. Babcock and Albert J. Allen, real estate experts. Babcock testified, in substance, that in the years 1909 and 1910 no building or improvements were put upon the premises in question; that in those years the fair cash market value of the real estate was $29,000; that in those years if a building, costing $10,000 and for the highest and best use of the ground, had been erected on the property, it would have added $10,000 to the value of the real estate; and that if such a building had been on the property in the year 1912, the entire value of the. real estate and building would have been approximately $39,000. Allen testified, in substance, that he was well acquainted with the value of the real estate in question in 1909 and had been ever since; and that if a building, proper for the location, had been erected on the property during the years 1909 and 1910, it would have added to the value of the property the entire amount of the cost of the building, plus 10 per cent of the value of the ground.

Neither of the defendants introduced any evidence. The amount of the court’s finding was arrived at by adding to the amount of said deficiency decree, $5,435.49, interest thereon at 5 per cent per annum from June 7, 1912, or the sum of $1,811.63.

In clause a of rule 15 of the rules of the municipal court (introduced in evidence by plaintiff) it is provided that “every pleading■ shall be entitled with the names of the parties to the suit.” It appears from plaintiff’s second amended statement of claim that the cause is therein entitled “Jennie Philippe v. John J. Curran.” The name of Isabella Curran, the other defendant, is not set down. It is here contended by-counsel for defendants that the omission of her name in said caption “is tantamount to a discontinuance of the action as to her under the provisions of the above rule.” To this we cannot agree. Isabella Curran was named as one of the defendants in the original praecipe, in the original statement of claim filed by plaintiff, and in the summons. She was duly served by the bailiff. In her affidavit of merits to said second amended statement of claim her name appears in the caption as one of the defendants, and in the body of the affidavit she is described as one of the defendants. She was represented at the trial by her attorney, who took an active part therein; she submitted propositions of law to be passed upon by the court; and at no time during the trial was the point here urged made.

It is also contended that plaintiff’s second amended statement of claim did not state a cause of action because a copy of the bond sued on was not filed with it. This contention is without merit. It was not necessary under the municipal court practice to file a copy of the bond with said statement of claim. (Ferguson v. Hale, 162 Ill. App. 523, 525; Guerra v. Rocco, 181 Ill. App. 528, 529.) Furthermore, a copy of the bond was filed with plaintiff’s original statement of claim and in said amended statement of claim reference was made to said copy so originally filed in the cause.

A further contention of counsel, as we understand it, is that, inasmuch as plaintiff obtained a foreclosure decree under a bill filed by her against John J. Curran, plaintiff is not barred from maintaining this action on the theory that the liability of the makers of said bond should have been determined in said foreclosure proceedings and that the decree therein rendered is res ad judicata. We cannot agree with the contention. The trust deed which was foreclosed was given by John J. Curran to secure the payment of his note for $30,000. Isabella Curran was not liable on said note either as a maker or as a guarantor. John J. Curran also signed the bond in question as security to plaintiff that he would keep his further agreement to erect a building or improvements on the property within one year. Isabella Curran was the surety on this bond. Her responsibility, as such surety, was limited to such damages as plaintiff might sustain by reason of John J. Curran’s failure to comply with the covenants of the bond. We think that the liability of John J. Curran on the note was separate and distinct from the liability of the two Currans on the bond; and that the question of the liaT bility on the bond had no proper place in the foreclosure proceedings.

As to the proper measure of damages on such a bond as the one sued upon, the case of United Real Estate Co. v. McDonald, 140 Mo. 605, is in point. In that case the Real Estate Company sued McDonald, as principal, and others, as sureties, on a bond which obligated McDonald to build on a certain lot, which he had purchased from the Real Estate Company, ten buildings at a cost of not less than $35,000 before a certain time. The houses were not built and the Real Estate Company, in an action on the bond, claimed damages in the sum of about $18,500. The Real Estate- Company tried the case on the theory that the law would presume that the construction of buildings of a certain cost would add that amount to the value of the real estate and introduced no evidence as to the value of the real estate without the buildings thereon and its value with the buildings thereon. Because of the lack of this essential proof the court directed the entry of a judgment against the defendants for the penalty of the bond, but only allowed damages to the amount of one cent. The court says (p. 612):

“By reference to the breach alleged, it will be observed that damages were sought for the failure to build the houses called for in the bond on or before June 28, 1893. It stands confessed that the houses were never built. * * * The condition of the bond is not that McDonald’s note should be paid, but that the houses should be built. The measure of the damages for the failure to build the houses of the kind stipulated in the bond would be the difference between the value of the realty without such buildings and the value of the property with such buildings at the time of the breach, to wit, June 28, 1893. Plaintiff might and indeed did have other remedies on its notes against McDonald and its deed of trust but that bond stood as security for the difference between the land without and the' land with the buildings on it. The obligation of neither the principal nor the sureties thereon extended one farthing beyond this difference. * * * It follows that it was necessary for plaintiff to establish what that difference was. This could be shown only by proof of the value of the realty without the buildings on or before June 28, 1893, and what it would have been worth with the buildings.”

In the present case the necessary proof was made. The testimony of plaintiff’s witnesses, Babcock and Allen, disclosed, in substance, that in the years 1909 and 1910 the value of the real estate without any building or improvements thereon was $29,000, and that, if during those years a building costing $10,000 had been erected thereon, the value of the land and building would have been in excess of $39,000; and the defendants offered no proof to the contrary. The evident object of plaintiff in obtaining the bond was to increase the value of her security for the $30,000 note of John J. Curran. It is true that the bond in .question did not specify the nature or character of the building or improvements to be constructed on the property, beyond ,the fact that the same should not cost less than $10,000. It is also true that’ the question, whether or not the value of the property would have been enhanced by the construction of such building or improvements, depends to some extent upon the nature or character thereof. We think, however, in the present case it is to be presumed that the parties had in mind the construction of a building or improvements suitable to the locality. The building or improvements were not erected within the year or at any time. John J. Curran made default in his interest payments, and his trust deed, securing his $30,000 note, was foreclosed. At the foreclosure sale the real estate, unimproved, sold for $28,500. John J. Curran’s debt to plaintiff was not fully satisfied, and plaintiff obtained a deficiency decree of $5,435.49 on June 7, 1912. Had John J. Curran kept his agreement with plaintiff to erect on the property within one year from July 2, 1909, a building or improvements costing not less than $10,000, a foreclosure suit in all probability would not have been instituted, and, if it had been, plaintiff would have realized on the debt in full. Under the facts disclosed in this record we think that plaintiff was damaged, by reason of the failure of John J. Curran to comply with the covenants of his bond, at least in the amount of plaintiff’s deficiency decree, together with interest thereon from the date of said decree.

For the reasons indicated the judgment of the municipal court is affirmed.

Affirmed.

Mr. Presiding Justice Barnes and Mr. Justice Matchett concur.


text:
    Daniel Daly, Plaintiff in Error, v. City of Chicago and Chisholm, Boyd & White Company, Defendants in Error.
    Gen. No. 25,410.
    1. Process, § IS

      —when alias summons may issue. Under section 4 of the Practice Act (J. & A. 1f 8541), providing for the issuance of an alias summons whenever it appears by the return of the sheriff or coroner that defendant is not found, an order by the court for an alias summons is not justified nor is the clerk authorized to issue such a summons after a lapse of more than 4 years after the issue of the original summons where the original summons was not placed in the sheriff’s hands, defendants were not notified in any manner of the pendency of the suit and no excuse is made for such nonaction nor any showing made why an alias summons should issue.
    2. Process, § 32*—when summons should he served. Where an action to recover for personal injuries is instituted, defendants are entitled to prompt notice of its pendency, especially where the damages are sought for alleged injuries suffered in connection with a temporary structure.
    3. Appearance, § 8*—what does not constitute. The mere recital in the trial court’s order that leave is given a defendant to plead, answer or demur by a certain date does not require that such defendant be considered, on appeal, as having entered a general appearance thereby waiving the question as the propriety of the issuance of an alias summons, for the purpose of moving to quash which defendant specially appeared, where the record does not disclose that defendant asked leave to plead, etc., but the inconsistency between defendant’s course of action and the recital in the order will be attributed to a clerical error in the entry of the order.
    Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Rehearing denied July 28, 1920.
    Robert F. Muetsell, for plaintiff in error.
    Samuel A. Ettelson and William H. Devehish, for defendant in error City of Chicago; Robert H. Farrell, of counsel.
    Judah, Willard, Wolf & Reichmann, for defendant in error Chisholm, Boyd & White Co.

      See Illinois Notes nicest, Veis, XI tp XV, and Cumulative Quarterly, same topic and section number,

   Mr. Justice Gridley

delivered the opinion of the court.

It is sought by this writ of error to reverse the order of the superior court of Cook county quashing an alias writ of summons and dismissing the suit at plaintiff’s costs.

On March 10, 1914, the plaintiff, Daniel Daly, filed a praecipe for a writ of summons in the office of the clerk of said superior court against the defendants in an action for damages for personal injuries, and on the same day the clerk issued the summons in due form directed to the sheriff of said county to execute, returnable to the May term, 1914. The record does not disclose that the summons was ever placed in the sheriff’s hands or that any return was ever made thereon by him. No further action appears to have been taken in the case until December 22, 1916, when the court, on motion of plaintiff’s attorney, ordered that the cause1 be continued generally. Action was next taken by plaintiff on August 2, 1918, over 4 years and 4 months after the original summons had been issued by the clerk. ’The record discloses that on that day, on motion of plaintiff’s attorney, the court ordered that an alias summons issue; that also on that day the original summons, issued March 10, 1914, was presented to one of the judges of said superior court and said judge indorsed on the back thereof the order, “Let alias summons issue,” and signed his name thereunder; and that also on that day the clerk issued an alias summons, returnable to the September term, 1918, and the same was placed in the sheriff’s hands, who subsequently returned it with the indorsement as having served the defendant, City of Chicago, on August 5, 1918, and as having served the other defendant on the following day. No declaration was filed by plaintiff until August 6, 1918. It contains two counts and it is therein charged, in substance, that on December 26, 1913, the City of Chicago had control of 57th street in said city; that Chisholm, Boyd & White Company (hereinafter called Chisholm Company) maintained a building at 57th and Wallace streets, and near to or in front of No. 610 West 57th street maintained á driveway across the sidewalk on said street which led into its premises; that the defendants had negligently permitted an unsafe temporary construction to be erected there and an excavation to be made, 2% feet below the level of the sidewalk, rendering the place dangerous to pedestrians lawfully using said street; and that while plaintiff was walking over said temporary construction it gave way and fell and plaintiff was thrown down and severely injured, etc. On August 28 the defendant Chisholm Company entered its “special and limited appearance” for the sole purpose of moving the court to dismiss the suit “for failure to file a declaration and for want of prosecution.” On August 29 the court entered an order of record continuing said motion “for hearing and final disposition,” and further ordered that “leave be and is hereby given said defendant to plead, answer or demur herein by September 30, 1918.” On -September 3, the defendant, City of Chicago, entered its “special appearance for the sole and only purpose of making a motion to quash the alias writ heretofore issued. ’ ’ On November 9 the defendant, Chisholm Company, entered its “special and limited appearance, for the sole and only purpose of making a motion to quash the alias summons herein and the return of the sheriff thereon, * * * and to dismiss the suit as to the said defendant, # * * and for no other purpose whatsoever.” It appears from the bill of exceptions that on said November 9 all parties were present in court by their respective attorneys; that the Chisholm Company made a motion for leave to withdraw its special appearance filed on August 28 and to substitute therefor its special appearance last-above mentioned; that the court, over objection, allowed said motion; that thereupon the Chisholm Company made a written motion, supported by affidavits, to quash said alias summons issued on August 2, 1918, and to quash and vacate the alleged service by the sheriff of the same on said defendant, and to dismiss the suit; that in said motion the Chisholm Company set up the various prior proceedings shown by the record and alleged that because of the delay and laches of the plaintiff it has been greatly and irreparably injured in its defense of the suit; and that in the affidavit of Harry J. Flood, president of Chisholm Company, it is alleged, in substance, that Flood had been president of the company since 1896; that the company’s business is that of manufacturing brick machinery; that its buildings and plant since 1890 have been located west of Wallace street and between 56th and 57th streets; that its principal office fronts on 57th street; that its office has at all times been open during business hours for the transaction of business; that with few exceptions affiant has been in said office during business hours each business day since the alleged accident described in said declaration and on most any business day could have been served with process; that for a number of years past plaintiff has resided at No. 542 West 57th street within about one block from said office; that during the past 5 years affiant has frequently met the plaintiff on the street and conversed with him; that prior to August 6, 1918, no attempt had been made to serve the Chisholm Company with process in this case, and that affiant inquired at the sheriff’s office and was there informed that said sheriff’s office had no record that the original summons issued in this case was ever there received. It further appears that after argument of counsel the court entered an order on November 9, 1918, sustaining the motion of the Chisholm Company and dismissing the suit at plaintiff’s costs. It further appears from an additional bill of exceptions, in substance, that on January 13, 1919, all parties by their respective attorneys were again in court; that it appeared that on November 9, 1918, the court dictated the order to be entered to the minute clerk and that said clerk so confused the same that the order did not show that the City of Chicago joined in said motion made by the Chisholm Company to quash said alias summons and. to vacate the alleged service as to both defendants and to dismiss the suit; and that the court thereupon ordered that the record of the order entered on November 9 be amended and corrected to speak the truth. And the record discloses that on January 13, 1919, the court ordered that the record be so amended to show that on November 9, 1918, the court ordered, on motion of the' attorneys for both defendants, that the alias summons, issued on August 2, 1918, and the return of the sheriff thereon purporting to show service on both defendants, be quashed, and that the. suit be dismissed as to both defendants.

In Collins v. Manville, 170 Ill. 614, 616, it is said: “The issuing of the summons and delivery to the sheriff for service were the commencement of action in this State.” (Citing, Feazle v. Simpson, 2 Ill. (1 Scam.) 30; Chicago & N. W. Ry. Co. v. Jenkins, 103 Ill. 588; Schrœder v. Merchants & Mechanics’ Ins. Co., 104 Ill. 71; Fairbanks v. Farwell, 141 Ill. 354.) In section 4 of the Practice Act (J. & A. ft 8541) now in force it is provided: “Whenever it shall appear, by the return of the sheriff or coroner, that the defendant is not found, the clerk shall, at the request of the plaintiff, issue another summons or capias, as the case may be, and so on until service is had.” This language is the same as was contained in section, 8 of the former Practice Act. In the present case the plaintiff caused the clerk to issue- a summons on March 10, 1914. This original summons was not placed in the sheriff’s hands for service, and the defendants were not in any manner notified of the pendency of the suit. No excuse for such nonaction is shown. On August 2, 1.918, after a lapse of more than 4 years, the original summons was presented to one of the judges of the court and an order was entered, on motion of plaintiff’s attorney, that an alias summons issue. It does not appear that any showing whatever was made as to why an alias summons should issue. Under the circumstances, and by reason of the language of section 4 of the Statute above quoted, we do not -think that the court was justified in entering the order for the issuance of an alias summons or that the clerk had authority to issue such a summons.

In 14 Cyc. p. 443, it is said: “An action may be dismissed or a nonsuit granted for the failure of plaintiff to prosecute it with due diligence, unless he presents sufficient excuse for failure to prosecute. This power exists independently of statute or rule of court. * * * Within the rule just stated, an action is properly dismissed for want of prosecution * * * where plaintiff fails to take any steps in the action for several years.” In 9 Ruling Case Law, p. 206, sec. 25, it is'said:, “It is an inherent right of the courts, and therefore one existing independently of any statute, to dismiss a suit for a failure to prosecute it with due diligence. Within the rule, declared in some jurisdictions, that a court may, in the exercise of its discretion, dismiss an action for this cause, -it has been held that a suit may be dismissed if there has been a failure to have the summons issued for an unreasonable period of time after the filing of the complaint, or if, after its issuance, there has been an unreasonable and inexcusable delay in serving it.” (See Grigsby v. Napa County, 36 Cal. 585, 588; Sanitary Dist. of Chicago v. Chapin, 226 Ill. 499, 500.) In the present ease we think that the action of plaintiff’s attorney, in not causing service to be had on the defendants, or plaintiff’s declaration to be filed, until after the lapse of more than 4 years after the issuance of the original summons, militated against 'the rights of the defendants. They were entitled to be notified promptly of the pendency of the action, especially as it is disclosed from the declaration as finally filed that plaintiff sought damages for alleged injuries suffered in connection with a temporary structure. With the lapse of time witnesses are not easily obtainable and the details of previously existing temporary conditions are forgotten. The language used in the opinion in the case of Hazlehurst v. Morris, 28 Md. 67, 75, is pertinent: “We do not find any authority for such practice, but are of opinion that such an one ought not to be tolerated. Plaintiffs might lie by for years, and then bring defendants into court, after their witnesses were dead or their proofs lost or destroyed, and obtain judgments against them upon claims not founded in justice; and the practice be thus used as a means of injustice and oppression.”

And we do not think that because of the latter part of the court’s order of August 29, 1918, the Chisholm Company should be considered as having entered a general appearance, thereby waiving the point made by their special appearance. The record does not disclose that the Chisholm Company ashed leave to plead, etc. The latter part of said order is so inconsistent with the action taken by the Chisholm Company at all times that apparently the entry is a clerical error.

Our conclusion is that the trial court did not abuse its discretion in entering the order that the alias summons and the return of the sheriff thereon be quashed, and that the action be dismissed as to both defendants.

Affirmed.

Mr. Presiding Justice Barnes and Mr. Justice Matchett concur.


text:
    Irving G. Zazove, Appellee, v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company, Appellant.
    Gen. No. 25,468.
    1. Infants, § 21—to7ie.ro attorney’s services are .necessaries. The professional services of an attorney rendered in protecting and enforcing the civil or property rights of a minor may be a necessary for which the minor is bound.
    2. Infants, § 34*—who is “next friend.” A next friend is “one who, without being regularly appointed guardian, acts for the benefit of an infant, married woman or other person not sui juris.”

    3. Infants, § 34*—who may act as next friend. The stepmother of a minor with whom the latter lives and who stands in loco :parentis as to the minor has a right to act as the minor’s next friend, to employ an attorney to act for the benefit and in the interest of the minor.
    4. Attobníby and client, § 127*—when attorney is entitled to reasonable fee. Where in an action under the Attorney’s Lien Act (Hurd’s Rev. St. ch. 82, sec. 55, J. & A. f 611) it appears that the stepmother of a minor, with the consent of her husband, who is the minor’s father, and the acquiescence of the minor, signs a contract on the latter’s behalf retaining one as attorney to prosecute a claim of the minor for personal injuries against a railway company, such attorney to receive 50 per cent of the gross recovery, and the railway company is duly notified of the arrangement and of the attorney’s claim of a lien under the statute, and thereafter, in prosecution of such arrangement, the attorney brings an action in the name of the minor by the stepmother as next friend and performs services in the minor’s interest, the railway company recognizing him as the minor’s attorney and its representative conferring with him as to a settlement and subsequently effects a settlement of the claim for $500 in the probate court, in which settlement the attorney did not take part, held that the attorney is entitled to recover a reasonable fee against the railway company and that $250 is not an unreasonable amount.

      Appeal from the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    John L. McInerney, for appellant.
    Irving G. Zazove, pro se.

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

   Mr. Justice Gridley

delivered the opinion of the court.

It is sought by this appeal to reverse a judgment for $250, entered April 15,1919, by the municipal court of Chicago against the defendant railway company. The plaintiff is an attorney at law, practicing in the City of Chicago, and his action is based upon the statute creating an attorney’s lien. (Hurd’s Rev. St. Ill. ch. 82, see. 55, J. & A. If 611.) After a hearing the court found the issues against the railway company and assessed plaintiff’s damages at $250, and the judgment followed.

On April 28, 1917, William Maziarka, a minor about 12 years of age, while on the right of way of the Illinois Central Railroad Company, was seriously injured by being struck by an engine of the defendant railway company. Shortly thereafter the following contract was executed and delivered:

“I hereby retain Irving G. Zazove, attorney at law, to prosecute my claim against the Illinois Central Railroad Co., et al, for injuries sustained by me on or about the 28 day of April, 1917. The compensation of my said attorney is to be 50 per cent of the gross amount recovered. It is understood, however, that my said attorney is to have no compensation unless damages are paid on account of said claim.

“(Signed) Wm. Maziarka, a minor, by his mother and next friend, Franciska Maziarka.

“I hereby accept the above in all of its terms.

(Signed) Irving G. Zazove.”

It further appears from the evidence, in substance, that the contract was actually signed by Franciska Maziarka, in the presence of Jacob Maziarka, father of the minor, that William, the minor, did not sign it, but he knew of its execution and afterwards consulted with plaintiff as his attorney; that at the time the contract was signed plaintiff supposed that Franciska Maziarka was the mother of the minor, but she was in fact his stepmother; that Jacob Maziarka and Franciska Maziarka, husband and wife, and the minor, and the minor’s brothers and sisters, all lived together as a family; that Jacob Maziarka, the father, requested" that she sign the contract and look after the interests of the minor, saying: “Let her sign it; she will go' through with everything; I am working and I do not want to lose any time”; that during the month of May, 1917, proper notices in writing of an attorney’s lien were duly served by plaintiff upon both the Illinois Central Railroad Company and the defendant; that subsequently plaintiff had conferences with representatives of defendant and made efforts to obtain a settlement of the claim but without success; that subsequently, after interviewing witnesses .and making investigations, plaintiff, as attorney, commenced suit in the superior court of Cook county, on behalf of said minor “by his mother and next friend, Franciska Maziarka” against the defendant and said Illinois Central Railroad Company, and obtained leave for the plaintiff in that action to sue as a poor person; that subsequently a declaration consisting of eight counts was filed in said action charging the defendant and said Illinois Central Railroad Company with negligence; that subsequently plaintiff rendered further services in connection with said suit, and made further unsuccessful efforts to reach a settlement óf the claim; that on October 23, 1917, and while said suit was pending, a petition was. filed by another attorney, on behalf of Jacob Maziarka, father of the minor, in the probate court of Cook county, praying that said father he appointed as guardian of the estate of the minor and he was so appointed; that on November 14, 1917, upon petition filed, leave was granted to said guardian by said probate court to settle said claim of the minor for the sum of $500, and in said order the guardian was authorized to pay as attorney’s fees 25 per cent of the net proceeds; that said probate court was not informed at the time of the entry of said order that a suit was pending in said superior court or that plaintiff held the said contract in connection with said claim, although a representative of defendant who had knowledge of those facts was present in said probate court at the time; that subsequently the sum of $500 was paid to said guardian by the defendant, which is all the money paid by defendant to any one on account of the claim of said minor; and that defendant at no time made any promise to any one to pay any fees to plaintiff. It further appears from plaintiff’s testimony that, while he was negotiating with defendant’s representative for a settlement and prior to the commencement of the suit in the superior court, he refused an offer of $900 to settle the claim.

On the trial the attorney for defendant did not contend that the amount of $250, claimed by plaintiff, was unreasonable or unconscionable. His sole contention there was, and is in this court, that no valid or enforceable contract was made with plaintiff and, hence, no lien was created by the service of the notice. He stated in the trial court: “My position is simply that the contract is not a legal contract, and, therefore, defendant is not liable; that the minor, never signed it, and that the stepmother had no right to execute a contract on behalf of the minor for anything, necessities or anything else, without the minor’s signature.”

It is provided in tile Attorney’s Lien Act (chapter 82, sec. 55, Hurd’s Eev. St., J. & A. 611):

“That attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of action: Provided, however, such attorneys shall serve notice in writing upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such- suits, claims, demands or causes of action, from and after the time of service of the aforesaid notice. On petition filed by such attorneys or their clients any court of competent jurisdiction shall, on not less than five days’ notice to the adverse party, adjudicate the rights of the parties and enforce such lien in term time or vacation.”

“It is well established, as a general rule, that an infant or his estate may be held liable for necessaries furnished him.” (22 Cyc. 590.) “The professional services of an attorney may be a necessary for which an infant is bound, whether such attorney be employed to enforce or protect the civil or property rights of the infant, or to defend him in a criminal action or prosecution.” (22 Cyc. 594.) The term “next friend” is defined in Bouvier’s Law Dictionary as: “One who, without being regularly appointed guardian, acts for the benefit of an infant, married woman, or other person not sui juris.” In the proviso in section 18 of the Guardian and Ward Act (chapter 64, Hurd’s Bev. St., J. & A. 6015), it is provided “that any suit or proceeding may be commenced and prosecuted by any minor by his next friend, without any previous authority or appointment by the court, on such next friend entering into bond for costs, and filing same in the court in which, or with the justice of the peace before whom such suit or proceeding is instituted.” In 14 Ruling Case Law, p. 290, par. 57, it is said: “It is evidently a necessary incident to the duty of conducting a suit or maintaining a defense for an infant that the next friend or guardian ad litem should have the power of selecting and employing counsel.” In Paskewie v. East St. Louis & S. Ry. Co., 281 Ill. 385, 388, it is decided that “the duty of the next friend begins and ends with the prosecution of the infant’s suit,” and that “under our statutes the only person authorized to receive and take charge of the property or estate of a minor is the legally qualified guardian, and it is the general rule that no one but the legal guardian of an infant has authority to receive payment and enter satisfaction of a judgment recovered in favor of such infant.”

In Haj v. American Bottle Co., 182 Ill. App. 636, it appears, in substance, that Adam Rabí Haj, a minor and son of Sam Haj, was seriously injured while in the employ of the American Bottle Company at Streator, Illinois, and it was claimed that his injuries were due to the negligence of his employer; that the minor and his father, as next friend, by a written contract, employed an attorney named Conway to prosecute the minor’s claim for damages, and subsequently Conway brought suit in the name of the minor, plaintiff, by Sam Haj, as his next friend, and against the employer, as defendant; that the day before the suit was brought Conway notified the employer by letter of his contract and claim of lien for attorney’s fees; that thereafter the minor and his father, without the knowledge of Conway, arranged a settlement with the defendant, and, in the pending cause, the defendant caused a jury to be impaneled and some proof to be heard, and a verdict and judgment were rendered in favor of the minor for $1,000 and the amount was paid to the minor or his father; that thereafter Conway filed in said cause his petition to enforce his lien for attorney’s fees; that upon the hearing on the petition the court found that a contract had been entered into between Conway and the minor and his father, by which Conway was to receive one-third of. the amount of any judgment recovered or settlement obtained; that Conway had notified the defendant in apt time by letter of the substance of his contract and of his claim of lien, and that he was entitled to a lien on said judgment for one-third of $1,000, and the court entered judgment in that amount in his favor and against said defendant. On appeal it was contended on behalf of the defendant (1) that the contract between Conway and his clients was void and (2) that service of notice in writing was not given the defendant pursuant to the statute. The Appellate Court for the second district decided adversely to both contentions and affirmed the judgment. In discussing the first contention, Mr. Justice Dibell said (p. 639):

“The minor and his next friend could each make a valid contract for necessaries and could agree to pay what the Same were reasonably worth. * * * We are of opinion that,, under the special circumstances here disclosed, this suit comes within the purview of necessaries for the minor, and that the minor could make a valid contract, and so could his next friend, whereby to hire an attorney to prosecute the suit and agree to pay him a reasonable compensation, and if a compensation was named in the contract which did not strike the conscience of a court called upon to enforce it as unconscionable, it would be enforceable as to amount unless it appeared from the proof that it was an unreasonable amount. Therefore, we hold that this contract by the minor and by his next friend, by which he employed Conway to prosecute this suit, was valid. * * * But let us suppose that' the minor and his next friend could not make a valid contract as to the amount Conway should receive for his services. If defendant received the written notice then its officers are presumed to know the law, and they therefore knew that the facts stated in the notice would give Conway a lien for whatever his services were reasonably worth.”

This Haj case was subsequently reversed by the Supreme Court (261 Ill. 362), upon the sole ground, however, that under the provisions of the Attorney’s Lien Act there must be personal service of the notice in writing, and that a notice by mail was not sufficient. No other point was discussed. In the present case the sufficiency of plaintiff’s notice in writing of his claim for lien is not questioned.

In view of the holdings of the Appellate Court for the second district in the Haj case, and under the peculiar facts disclosed in the present case, we are of the opinion that the plaintiff’s right to an attorney’s lien should be sustained and the judgment appealed from affirmed. Franciska Maziarka, the stepmother of the minor, William Maziarka, stood in loco parentis as to him. We think that she had a right to act as the minor’s next friend, to employ an attorney to act for the benefit and in the interest of the minor. With the consent of Jacob Maziarka, her husband and the father of the minor, and with the acquiescence of the minor, she signed on behalf of the minor a contract whereby plaintiff as attorney was retained to prosecute the minor’s claim for personal injuries sustained by him, and the defendant railway company was duly notified of the arrangement and of plaintiff’s claim of lien under the statute. Thereafter, in furtherance of the arrangement, plaintiff brought suit in the name of the minor by Franciska Maziarka as next friend, and performed services in the minor’s interest. Thereafter the defendant railway company recognized plaintiff as the minor’s attorney, and its representative had conferences with plaintiff relative to a settlement of the case. Thereafter a settlement of the minor’s claim was made in the probate court, as above outlined, in which plaintiff did not take part. We do not think that the fact that the minor did not himself sign the contract should prevent a recovery by plaintiff. The claim or cause of action was placed in plaintiff’s hands with the acquiescence of the minor and plaintiff rendered services. Under the statute he was at least entitled to a reasonable fee. And we cannot-say under all the circumstances disclosed that the amount allowed by the trial court was an.unreasonable amount.

The judgment of the municipal court is affirmed.

Affirmed.

Mr. Presiding Justice Barnes and Mr. Justice Matchett concur.


author: Mr. Justice Matchett Mr. Presiding Justice Barnes

text:
    George G. Brandenburg and Joseph I. Brandenburg, trading as Brandenburg & Company, Appellees, v. The Buda Company, Appellant.
    Gen. No. 25,156.
    1. Discovert, § 2

      —what is effect of statute as to discovery. Section. 9 of the Evidence Act (Hurd’s Rev. St. ch. 51, J. & A. t 5526), authorizing the courts to require the parties to produce books or writings in pending actions, does not abolish or limit the jurisdiction of chancery courts as to pure bills of discovery, but only provides a concurrent remedy, the bill of discovery being a remedy superior to that afforded by a court of law under such statute.
    2. Discovert, § 5*—what objections to bill are not available. On a pure bill for discovery of certain matters in aid of complainants’ suit at law theretofore brought against defendant on a contract, the court will not sustain as applicable thereto under facts here appearing contentions of defendant that the bill cannot be maintained because the suit is prematurely brought, or because the contract gives complainants the right to examine defendant’s books at stated intervals, or because complainants may not ask questions of which they have knowledge themselves, or because questions are asked concerning matters, the knowledge of which is in the possession of third persons, who can be produced at the trial as witnesses.
    3. Discovery, § 6

      —what must he shown in order that discovery may he granted. On a bill for discovery of certain matters in aid of their suit at law theretofore brought against defendant, complainants ■ must show by their bill that they have a good cause of action at law.
    4. Discovery, § 6*—when relief will he denied. Where, on a bill for discovery of certain matters in aid of complainants’ action at law theretofore brought against defendant, it affirmatively appears that complainants have no case in the law action set up by them therein, the relief asked should not be granted.
    5. Discovery, § 6*—-what will not he determined as to law action. •Where, on a bill seeking discovery of certain matters in aid of complainants’ action at law on a contract theretofore brought by them against defendant, it does not appear that the action at law is clearly unmaintainable but such question involves construction of the contract and is not free from doubt, it will be left for the decision of the court of law in which such action is pending, and discovery will not be denied on the ground that the action is not maintainable.
    Barnes, J., dissenting on motion to modify judgment of affirmance.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Rehearing denied and a dissenting opinion filed July 30, 1920.
    Jones, Addington, Ames & Seibold, for appellant; Keene H. Addington and Walter Hamilton, of counsel.
    John T. Bichards, for appellees.

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

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

   Mr. Justice Matchett

delivered the opinion of the court.

The appellees are members of the partnership of Brandenburg & Company. They filed their bill in equity against appellant, The Buda Company, a corporation, for discovery of certain matters in aid of their suit at law theretofore brought by them against this corporation.

The bill alleges the execution by the parties of a written contract on October 19, 1911, which it sets out in liceo verba, and by which appellees were made exclusive selling agents of appellant’s motor vehicle products in the United States for a compensation-expressed in the contract.

The 13th paragraph provides:

“It is further covenanted and agreed that at the end of a period of every three months, dating from the date of this contract, the parties of the second part shall have the right to examine the books of the party of the first part for the purpose only of ascertaining the amount of shipments made by the party of the first part, and for the purpose only of checking up and verifying statements rendered by the party of the first part to the parties of the second, part hereto.”

The 15th paragraph provides:

“It is further covenanted and agreed by and between the parties hereto, that this contract shall take effect from its date, and shall continue to July 1st, 1916, and from year to year thereafter, unless either party may wish to terminate this contract, which may be done on any year thereafter, by giving the other party a notice in writing of their intention to so terminate this agreement sixty days prior to July 1st of any year thereafter. Said cancellation to take effect provided all payments are made sixty days after date of cancellation.”

By other paragraphs it was provided that if members of the partnership should for any reason cease to be actually engaged in the sale of motor vehicle products, the corporation should have the right to cancel the agreement, after giving 90 days’ notice in advance of the date of such cancellation, and that if either of the parties became insolvent, the contract might be terminated as soon as all payments thereunder should have been made. The bill alleges full performance by the partnership of the terms of the contract, but charg-es that on April 21, 1916, the following notice was served on them:

“Chicago, April 21, 1916.

“To George G. Brandenburg and Joseph I. Brandenburg, copartners, doing business as Brandenburg & Company.

Chicago, Ill.

NOTICE.

“You are hereby notified that the contract of date October 19,1911, by and between yourselves as parties of the second part and The Buda Company, an Illinois corporation of the City of Harvey, Illinois, as party of the first part, having to do with commissions to you on shipments by us of parts for motor vehicles, is hereby terminated by us, said termination to take effect on the expiration of the five year period of said contract on July 1, 1916.

The Buda Company,

By James Viles, President.”

The bill also says that after July 1, 1916, defendant refused to carry out its contract, and that, by reason thereof, complainants, on January 2, 1917, instituted in the circuit court of Cook county, Illinois, a certain action in assumpsit, to recover from the defendant the amount of their damages, $250,000, suffered by reason of the failure and refusal of the defendant to carry out and perform said contract on its part; that said action of assumpsit is still pending and undetermined.

The bill further alleges that material facts necessary to the maintenance of this suit can be obtained only from examination of defendant’s books of account, etc. It prays discovery may be made and propounds certain interrogatories which it prays may be answered by complainants’ solicitor. The bill is sworn to and duly signed by complainants’ solicitor.

To this bill defendant-appellant filed a general demurrer and afterwards a special demurrer, both of which were by the court overruled, and a decree entered, directing defendant to answer the interrogatories within 10 days. From that decree this appeal is prosecuted.

It is to be noticed that the bill is one for discovery only. It does not seek to have the merits of the suit at law passed on by the chancery court. It does not ask the court of chancery to give any relief, other than the defendant “The Buda Company, may make full, true and complete discovery of the several matters aforesaid, to the end that your orators may be better enabled to maintain their said action in assumpsit, so instituted by them in the Circuit Court of Cook County, Illinois, against said The Buda Company. ’ ’

It is the contention of appellant that the bill cannot be maintained for the reason that complainants have a full, adequate and complete remedy at law, to obtain all the. information to which they are en- • titled, and it is specifically pointed out that the information asked for, if proper, is obtainable under section 9 of the Evidence Act (Hurd’s Bev. St. ch. 51, p. 1306 (J.- & A. U 5526), which provides:

“The several courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue.”

In this connection we are cited to numerous cases construing this section in a liberal manner, and which seem to express the opinion that bills of discovery have been made unnecessary by its enactment. We are cited to Hartford Fire Ins. Co. v. Ledford, 151 Ill. App. 413, where the opinion says: “Where the evidence desired can be had on notice, there is no need of a bill of discovery, and this bill in equity will not lie for discovery”; to Swedish-American Tel. Co. v. Fidelity & Casualty Co. of New York, 208 Ill. 562, where considering an appeal from an order entered under said section 9 compelling the production of books by a party to a suit at law, the court said: “Nor do we think that it was necessary to file a bill of discovery in order to secure an examination of the books”; to Denison Cotton Mill Co. v. Schermerhorn, 257 Ill. 128, where an order was sustained, requiring a party to permit an examination of evidence in his possession by his adversary, to prepare for trial.

In connection with these authorities appellant invokes the rule laid down in 3 Story’s Equity Jurisprudence, sec. 1943, to the effect that “courts of equity will not entertain a bill for discovery to assist a suit in another court, if the latter is, of itself, competent to grant the same relief; for in such a case the proper exercise of the jurisdiction should be left to the functionaries of the court where the suit is depending.”

The leading authority for this last statement of law is Gelston v. Hoyt, 1 Johns. Ch. (N. Y.) 543, in which the opinion was delivered by Chancellor Kent in 1815. This case was followed in the later case of. Leggett v. Postley, 2 Paige (N. Y.) 599, in 1831, but in the later case of Marsh v. Davison, 9 Paige (N. Y.) 580, decided by Chancellor Walworth in 1842, the limitations of the doctrine were stated:

“It is not necessary in a mere bill for discovery for the complainant to aver that he cannot otherwise establish his defense at law, and the headnote to the contrary in the case of Leggett v. Postley, 2 Paige (N. Y.) 599, is not warranted by the opinion of the court in that respect.

“By referring to the case itself it will be seen that the court made a distinction between a mere bill of discovery and a bill in which the complainant asks for relief in this court upon the ground that he has been compelled to come here for discovery.’?

The citation of cases and arguments of appellant ignore this vital distinction. Every bill in equity is, in one sense, a bill for discovery, since it always calls for an answer, and it is therefore clear that in cases where discovery and other relief are prayed for, the bill, if sustained, may have the effect of ousting the common-law jurisdiction, because equity having once acquired jurisdiction will generally retain it for the purpose of doing complete justice between the parties. Indeed the common-law judges of England at one time joined in a protest against the extent to which their courts were ousted of jurisdiction in this manner.

It is time that in some States, particularly in those which have adopted the so-called reformed procedure, by which all distinctions between law and equity are abolished, it has been held that the effect of these statutes is to do away with bills of discovery, but such legislation has not been enacted in this State.

In the absence of this or some similar enactment expressing the intention of the legislature to accomplish that result, it seems reasonable to hold that section 9 does not abolish or limit the jurisdiction of chancery courts as to pure bills of discovery, but only ,provides a concurrent remedy. This has been the construction in this State of this and other statutes transferring to courts of law jurisdiction formerly exercised exclusively by courts of chancery. Grimes v. Hilliary, 38 Ill. App. 246; Kendallville Refrigerator Co. v. Davis, 40 Ill. App. 616; Garden City Sand Co. v. People, 118 Ill. App. 372; Rickly v. Parlin & Orendorff Co., 206 Ill. App. 599; Howell v. Moores, 127 Ill. 79.

As is said in volume 1, 4th Edition of Pomeroy’s Equity Jurisprudence, sec. 193 (after pointing out the effect of the so-called reformed procedure in England and many of the American States in this respect):

‘‘Notwithstanding these great changes made by statutes which seem to remove the very foundation for any interposition by equity, it has generally been held that the legislature has not abridged nor affected the auxiliary equitable jurisdiction to entertain suits for mere discovery of evidence and production of documents, and that such equitable jurisdiction still exists where not expressly abolished by the statutes. This conclusion, however, is not universal. In some cases it has been held that the legislation, by abolishing all the grounds upon which a suit for discovery was based, has necessarily abrogated the jurisdiction itself. ’ ’

As authority made for the statement in the last sentence quoted, the author cites Riopelle v. Doellner, 26 Mich. 102, one of the cases upon which the appellant relies.

We think a pure bill for discovery provides a remedy superior to any which a court of law affords under the statute in question, Continental Nat. Bank v. Heilman, 66 Fed. 184; Indianapolis Gas Co. v. City of Indianapolis, 90 Fed. 196, and that the jurisdiction of chancery courts to give this relief has not been limited in this State.

The further contentions of appellant that this suit cannot be maintained because prematurely brought, or because the contract gives appellees the right to examine the books of appellant at stated intervals, or because complainants may not ask questions of which they have knowledge themselves, or because questions are asked concerning matters, the knowledge of which is in the possession of third parties, who can be produced at the trial as witnesses, cannot, we think, be sustained as applicable to a pure bill of discovery. Marsh v. Davison, 9 Paige (N. Y.) 580; Earl of Glengal v. Frazer, 2 Hare 99; Brereton v. Gamul, 2 Atk. 240; Montague v. Dudman, 2 Ves. 397; Peck v. Ashley, 12 Metc. (Mass.) 478. The cases cited to the contrary by appellant are distinguished by the fact that the complainants in them sought to invoke general chancery jurisdiction for relief.

But appellant says, and truly, that it was necessary for complainants to show by their bill that they.had a good cause of action at law. In Story’s Equity Jurisprudence (14th Ed.), vol. 3, sec. 1941, the rule is stated:

“In the next place the party must not only show that he has an interest in the subject-matter of the bill to which the required discovery relates, but he must also state a case which will, if he is the plaintiff at law, constitute a good ground of action, or, if he is the defendant at law, show a good ground of defense in aid of which the discovery is sought. If it is clear that the action or the defense is unmaintainable at law, courts of equity will not entertain a bill for any discovery in support of it, since the discovery could not be material, but must be useless. This, however, is so delicate a function, that courts of equity will not undertake to refuse a discovery upon such grounds, unless the case is entirely free from doubt. If the point be fairly open to doubt or controversy, courts of equity will grant the discovery and leave it to courts of law to adjudicate upon the legal rights of the party seeking the discovery.”

It is the contention of appellant that it affirmatively appears complainants in the bill have no case in the law suit set up by them therein. If this is clearly so, complainants should not be granted the relief asked for, for the plain reason that in such case the questions asked would be wholly immaterial. It is the theory of appellant that under the provisions of para-, graph 15 of the contract, it had a perfect right to terminate the contract on July 1, 1916, by the written notice served on April 21, 1916, which was more than 60 days prior to that date; that properly construed, the contract was “to” July 1, 1916, “certainly,” and that beyond that time its duration is uncertain. Appellees contend that under the plain terms of that section, the contract could not be terminated prior to July, 1, 1917. If appellant’s construction of this paragraph is correct, then the termination of the contract was not wrongful, and appellees could not have any cause of action on that ground. If appellees’ construction is correct, then the termination of the contract was wrongful, and action for damages would lie.

The parties cite cases in support of their respective contentions, which, while interesting, are hardly conclusive. Appellant cites Mayo, Hysore & Co. v. Philadelphia Textile Machinery Co., 105 Va. 486; Tilling, Ltd. v. James, 94 Law T. Rep. 823; Brown v. Symons, 98 E. C. L. 208; Langton v. Carleton, 29 Law T. Rep. 650; Hamilton v. Bryant, 30 Law T. Rep. 408. It also contends that appellees’ construction of the contract is based on the latter clause of the paragraph and is inconsistent with the first clause of it, and that the first clause should therefore prevail. Citing Straus v. Wanamaker, 175 Pa. St. 213; Pittsburg & S. R. Co. v. Central Trust Co., 156 N. Y. App. Div. 182, 141 N. Y. Supp. 66; Employers’ Liability Assur. Corp., Ltd. v. Morrow, 143 Fed. 750.

As against these contentions, appellees claim the clauses are not inconsistent, and point to the nature of the business which was to be conducted, and other provisions of the contract, which, it is claimed, indicate the intention of the parties that the contract should remain in force as long as the parties con-tinned actively engaged in the business; to the contemporaneous construction of the paragraph as indicated by the notice given, that it was to end at the expiration of the 5-year period, which could not have been July 1, 1916; and to the clear grammatical construction of the paragraph. As authorities they cite Regina v. Chawton, L. R. 1 Q. B. 523; Doe d. Chadbourn v. Green, 9 A. & E. 658; Sir Herbert Marshall & Sons v. John Brinsmead & Sons, 106 Law T. Rep. 460.

We have read all these cases carefully. Upon consideration of the whole matter we are of the opinion the only certain thing about said paragraph 15 is that it is ambiguous and uncertain. The question raised is not only delicate but difficult. Clearly, we cannot say that the construction contended for by appellant is free from doubt in face of the fact that in some of the cases cited in support of its contention the courts, apparently, are not quite sure of the correctness of the position taken.

This is a court of errors. The question to be decided is whether within the rule as first stated the suit of complainants is clearly and without doubt unmaintainable at law. We think we must say, at least, the question is not free from doubt, and that the chancellor, therefore, properly left, the decision of that question to the court of law, in which complainants ’ action for the alleged breach of contract is pending. It follows that the decree of the chancellor should be affirmed.

Affirmed.

Mr. Presiding Justice Barnes and Mr. Justice ■Gridley concur.

Dissenting Opinion of

Mr. Presiding Justice Barnes

on Petition.for Behearing.

Appellant has filed a petition for rehearing asking in effect that the judgment of affirmance be modified in conformity with the opinion so as to make clear that construction of the contract in question is still open to adjudication. A majority of the court think the motion should be denied. If the form of the judgment is open to the contention that an unqualified affirmance of the decree upholds appellees’ construction of the contract, then holding a contrary view I think the judgment here should be one of reversal.


author: Mr. Justice Matchett

text:
    George W. Hartzell, Defendant in Error, v. Cincinnati, Hamilton & Dayton Railway Company, Plaintiff in Error.
    Gen. No. 25,206.
    1. Assumpsit, § 81

      —when plea is demurrable. Where a declaration contains the common counts, a plea filed thereto which purports to answer the entire declaration is properly held bad on demurrer where it fails to show a defense to the common counts.
    2. Contracts, § 163*—what laws are part of contract. All laws in existence when a contract is made necessarily enter into and form a part of it as fully as if they were expressly referred to or incorporated into its terms.
    3. Limitation of actions, § 11*—when existence of statute does not convert action on written contract to one on unwritten contract. ' Where an action is brought against the initial carrier engaged in interstate commerce to recover damages for defendant’s breach of its agreement to carry safely and within a reasonable time in accordance with the bill of lading set up in the declaration, the provisions of section 20 of the “Carmack Amendment” enter into and form a part of such written contract, and the fact that the amended declaration not only alleges the execution of and sets up the bill of lading but further alleges that defendant became liable “by force of the statute” does not convert the action therein to an action on an unwritten contract arising out of the “Carmack Amendment” to which the statute of limitations applicable to unwritten agreements may be interposed, since the contract is not created by implication derived from the Carmack Amendment, but the latter merely enters into and forms a part of the interpretation of the written contract.
    Error to the Circuit Court of Cook county; the Hon. John H. Marshall, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed July 14, 1920.
    Jambs M. Sheeah and Charles, D. Clark, for plaintiff in error.

      George M. Stephen, A. W. Martin and Edward H. S. Martin, for defendant in error.

      See Illinois Notes Digest, Vole, XI to XV, and Cumulative Quarterly, samo topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

This is a writ of error to review the record of a judgment entered upon the finding of the court. On February 23, 1912, plaintiff below, defendant in error, filed suit in assumpsit against plaintiff in error and six other common carriers, alleging that on or about March 28, 1907, the.carriers were engaged in interstate commerce, and that on that date the defendant, Cincinnati, Hamilton & Dayton Railway Company, for the usual and legal rate of compensation,' agreed to transport from Piqua in the State of Ohio, to San Francisco, in the State. of California, safely and within a reasonable time, certain goods described in the bill of lading issued by the said defendant, which said bill of lading or contract was in writing and set up in the declaration in hcec verba.

This declaration further alleged that the other common carriers, defendants with lines of railroad, extending between the points named “adopted and ratified said contract as their own, and as their contract with the plaintiff.” It also alleged the default of all the defendants in their promise to safely carry within a reasonable tim'e, and to deliver the goods, etc. To this declaration plaintiff added the common counts, and the defendant, plaintiff in error here, filed the general issue. Later, by stipulation of the parties, the suit was dismissed as to all the defendants except plaintiff in error.

On January 24, 1913, the plaintiff filed an amended declaration which alleged that on the said 28th day of March, 1907, one Judson Harmon was the receiver of the Cincinnati, Hamilton & Dayton Railway Company, engaged in interstate commerce, etc.; that he paade, executed and delivered the bill of lading or contract in writing, which is, as in the original declaration, set up in h(BG verba; that he failed to keep the contract to safely carry and deliver; that on the 19th day of August, 1909, the receiver was duly discharged and defendant then resumed possession of the property and promised to and assumed and agreed to pay all the debts and liabilities created by the receiver; that by reason thereof “by force of the statute in such case made and provided, the said defendant railway company became liable to pay to the said plaintiff the said sum of money, value of the property aforesaid, together with a reasonable attorney’s fee to be fixed by the court in case of recovery.” The common counts were also attached.

To this amended declaration the defendant filed a plea of the general issue and later, by leave of court, certain special pleas, one of which set up that the cause of action as stated in the amended declaration was barred by the statute of limitations. To this plea the plaintiff filed a general demurrer, which was overruled, and thereafter a replication thereto filed by plaintiff. April 18, 1918, the'defendant, by leave of court, filed an amended first additional plea, in which it set up that the supposed causes of action in the amended declaration alleged were other and different causes of action than those alleged in the original declaration filed February 25, 1912, and that they had not accrued to the plaintiff at any time within 5 years' next before the commencement of suit thereon by the filing of the amended declaration. To this amended first additional plea the plaintiff demurred. The demurrer was sustained and defendant, electing to stand by his plea, the cause was submitted to the court, which found the issues for the plaintiff and his damages at $2,105.30, for which sum judgment was entered, defendant’s motion at the close of all the evidence for a finding in its favor being overruled.

The error here assigned and argued is the action of the court in sustaining plaintiff’s demurrer to defendant’s amended first additional plea to the plaintiff’s amended declaration. The declaration, as amended, contained the common counts, and the plea filed April 18, 1918, purported to answer the entire declaration. This ,plea failed to show a defense to the common counts and was, therefore, properly held bad on demurrer. Goodrich v. Reynolds, Wilder & Co., 31 Ill. 490; People v. McCormack, 68 Ill. 226; Gebbie v. Mooney, 121 Ill. 255. - However, aside from this technical point, on which the judgment of the lower court must be affirmed, we think the merits of the case are with defendant in error. It is apparent that if the cause of action-set forth in the amended declaration is upon a “written contract” within the meaning of section 16 of the Limitation Act (Hurd’s Eev. St. 1917, p. 1889, J. & A. ft 7211), which provides for á 10-year limitation for actions therein described, then the demurrer to the additional plea which set up a 5-year limitation, applicable to actions on “unwritten contracts, express or implied,” as provided by section 15, was properly sustained.

We understand plaintiff in error to contend that the cause of action as stated in the amended declaration is-based on an “unwritten contract, express or implied”; that the liability of the defendant as therein stated arises out of a contract implied from the “Carmack Amendment” to the Interstate Commerce Act, which makes the initial carrier responsible for the delivery of a shipment at its destination, whether that destination is or is not on its line.

It is pointed out that the original declaration set up a specific contract by which defendant agreed “to carry to its usnal place of delivery at said destination, if on its road, otherwise to deliver to another on the route to said destination,” and alleging that the other carriers then named as defendants adopted and ratified this contract. On the other hand, the amended declaration alleges the defendant became liable “by force of the statute in such case made and provided.” Plaintiff in error therefore argues it is apparent the cause of action is other and different from that first stated, and is based on an unwritten contract, express or implied, arising out of the “Carmack Amendment” to which the 5-year limitation provided by section 15 is applicable.

While the contention is plausible we think it ignores the fundamental rule obtaining in the interpretation of contracts to the effect-that: “All laws in existence when an agreement is made necessarily enter into and form a part of it as fully as if they were expressly referred to or incorporated into its terms.” Armour Packing Co. v. United States, 153 Fed. 1, p. 19. This rule is, we think, peculiarly applicable to contracts between carriers and shippers in interstate commerce. If we thus incorporate the express provisions of the “Carmack Amendment,” section 20 of the Act to regulate commerce, into the bill of lading, which here constitutes the written contract between the parties and which is set up in hcec verba in both the original and amended declarations, we think it must be interpreted as a written contract by defendant in error to carry to final destination over its own line, if possible, and, if not, then partly over the lines of its agents and subsequent carriers. Northern Pac. Ry. Co. v. Wall, 241 U. S. 87; Illinois Cent. R. Co. v. Johnson, 34 Ill. 389; Coats v. Chicago, R. I. & P. Ry. Co., 134 Ill. App. 217; Shafton Co. v. St. Louis, I. M. & S. Ry. Co., 174 Ill. App. 121; L. Starks Co. v. Michigan Cent. R. Co., 207 Ill. App. 333.

The contract here is not created by an implication derived from the statute. The statute enters into the interpretation of the contract, created in writing by -the voluntary acts of the parties to it. The allegation of the declaration as amended that the defendant became liable “by force.of the statute” is, therefore, surplusage. The precise point is not decided by. any authorities cited. There is language in Illinois Cent. R. Co. v. Miller, 32 Ill. App. 259, which would seem to sustain the contention of plaintiff in error, but it was unnecessary to the decision of the case, and must be regarded as mere dicta. That case relies on Plumb v. Campbell, 129 Ill. 101, where the court said:

“If it be true that the agreement, as set forth in writing, is so indefinite as to necessitate resort to parol testimony °to make it complete, the law is, that in applying the statute of limitations, it must be treated as an oral contract. Both reason and authority support this view.”

If we apply this rule here it is apparent, we think, that the bill of lading, as interpreted in view of the ‘ ‘ Carmack Amendment, ’ ’ would not necessitate oral evidence to establish its terms. On principle, we can see no more reason why the interpretation of this bill of lading in the light of the “Carmack Amendment” should convert the written contract into an oral one, than the interpretation of a promissory note or other writings, in the light of the statutes existing at the time of their execution, with reference to the payment of interest thereon, would convert such written contracts into oral ones. Matthias v. Cook, 31 Ill. 83; Heissler v. Stose, 131 Ill. 393; Dick Co. v. Sherwood Letter File Co., 157 Ill. 325.

The judgment will be affirmed.

Affirmed.

Mr. Presiding Justice Barnes and Mr. Justice G-ridley concur.