author: Mr. Justice Carnes

text:
    Maney Milling Company, Appellee, v. Baker-Wignall & Company, Appellant.
    Gen. No. 5,841.
    1. Conteacts, § 187

      —when one party cannot complain of the other’s construction. The party who chose the ambiguous language of a contract cannot complain of the construction placed on it by the other party where with knowledge of the other party’s construction he failed to give notice.
    2. Conteacts, § 263

      —when action lies for default of severable parts of contract. In case of a severable contract of sale, an action may be brought on the default of any of the severable parts thereof and the contract may he rescinded as to one part without rescinding the whole contract.
    3. Sales, § 59

      —when contract is severable. A contract for flour to be delivered in instalments and to be paid for when delivered, held a severable contract.

      4. Sales, § 284

      —when vendor may cancel portion of contract and sue for breach thereof. A vendor of goods to he delivered in instalments may, on refusal of the vendee to accept certain instalments, cancel the contract as to them and hold the contract in force as to the other instalments; and as to the refused instalments, he may sell the same at the time fixed for delivery and recover of the vendee the difference between the contract and market price.
    5. Appeal and eeeoe, § 438

      —when variance cannot be urged on appeal. Variance between pleadings and proofs cannot be urged where there was no objection on that ground in the trial court and no error in admission of evidence is assigned or argued.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Arthur H. Shay, for appellant.
    Boys, Osborn & Griggs, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

On the 5th day of March, 1910, the defendant (appellant), Baker-Wignall & Company, then engaged in the wholesale produce business in Streator, Illinois, ordered from the plaintiff (appellee), Maney Milling Company, then engaged in the milling business in Omaha, Nebraska, 4,000 barrels of Sunkist flour at $5 per barrel, the flour to be packed in 49 pound sacks, under defendant’s brand or plaintiff’s as defendant might desire, and to be delivered by plaintiff at Streator at the rate of 1,000 barrels per month on the shipping instructions of the defendant, and paid for on delivery.

Plaintiff had delivered 155 barrels of flour when on April 3rd its mill burned, and on April 5th it wrote the defendant asking that the contract be canceled. Beceiving no answer to this letter, another of like import was mailed defendant April 14,1910, and still another on April 16th, and on April 18th defendant wrote plaintiff that it could not place this block of flour "with a mill with a reputation and that it had a lot sold for May and June delivery and must insist on the performance of the contract, adding: “Now, if you can place this block of flour with Wells, Abbott, Nieman Co. for their best patent flour at $5.00 all well and good. If not, we ask you to remit us 20^ per barrel on the 4M barrels, less the 155 barrels which we received.” Plaintiff purchased 4,000 barrels of flour of Wells, Abbott, Nieman Co., and on April 20th wrote defendant: “We are in receipt of yours of April 18 and contents noted. We promptly wired you as follows: Tour letter 18th received. Have purchased Wells, Abbott, Nieman Puritan grade for your contract, please send shipping instructions promptly. Heretofore we have been afraid to purchase this flour in against your contract for fear same would not be satisfactory, but have arranged with Wells, Abbott, Nieman to fill your contract. So please send us shipping instructions direct to Omaha, and trust you will send us instructions on a few cars promptly. The flour we are to furnish is Wells, Abbott, Nieman’s Puritan grade at $5.00 per barrel, basis 49 lb. sacks, delivered Streator, and we trust the flour will please you as Puritan has heretofore.” Not hearing from defendant, the plaintiff again wrote on May 3rd: “We have not heard from you since we purchased the flour in against your contract. Please advise us when you expect to give us shipping instructions.” On May 7th defendant wrote plaintiff that it had orders for delivery a few weeks later and as soon as these orders were ready to ship it would send the orders direct to Wells, Abbott, Nieman Co., and would send plaintiff a copy of the order, instructing Wells, Abbott, Nieman Co. to draw on defendant at the rate of $5 per barrel, and if the price was above that to draw on plaintiff for the balance. On May 10th plaintiff wrote the defendant that Wells, Abbott, Nieman had nothing to do with the deal between defendant and plaintiff, and to send all orders direct to plaintiff Eeceiving no answer to this letter it again wrote on May 17th: “As we have not had a reply to our letter of May 7th, we are today cancelling two thousand barrels of your order given us on March 5th. The market is getting in a very weak position and we can purchase flour today at $5.00 basis Streator and are afraid to carry this order on our books any longer, as we are almost sure the market will go much lower and you will be unable to take it out in the specified time.” Defendant did not reply until May 30th, when it wrote plaintiff: “You have not seen fit, or agreed, to fill your contract for flour as we have suggested to you and rather than to have any further misunderstanding, you may cancel the entire block of flour, as we cannot see our way clear to send you the orders and let you fill them with what flour you see fit.” To this letter plaintiff replied on June 2nd, reciting the facts from its standpoint, and said: “We immediately turned and purchased the full amount of your contract from Wells, Abbott, Nieman Co. of the grade of flour requested and wrote you accordingly and asked you for instructions. This you did not comply with. We have been kind enough to cancel 2,000 barrels of this contract and unless we receive shipping instructions on 1,000 barrels by return mail, we will sell same for your account and on the 1st day of July will sell the other thousand barrels.” And on June 11th again wrote defendant that it had sold 1,000. barrels of the flour for its account at $4.45 per barrel and charged defendant’s account 24 cents per barrel, the difference in price. And again on July 5th wrote defendant stating, that it had sold another 1,000 barrels at $4.55 per barrel.'

Afterwards this suit was brought to recover such difference in price, and an account presented on the theory that the original contract was for 4,000 barrels of flour, of which 155 barrels were delivered and paid for and 2,000 cancelled, leaving 1,845 barrels at $5 per barrel, of which 845 barrels were sold June 11th at $4.45, and 1,000 barrels sold July 5th at $4.55, which after allowing defendant credit on account of sacks and freight left a balance due plaintiff of $353.50.

There was no evidence offered other than the correspondence before stated of much importance, except that it did appear that the price of flour was fluctuating during the period in question, with the result that had the contract been cancelled when the plaintiff so desired there would have been a loss to the defendant of about 20 cents a barrel; that at the time the 2,000 barrels were cancelled there was no loss to plaintiff in so cancelling it, and at the latter period when the flour was sold, the loss was as before indicated. At the close of the testimony, the court was asked by each of the parties to direct a verdict in its favor and refused the motion of the defendant and directed a verdict for the plaintiff for $353.50, the full amount claimed, which was followed by judgment from which this appeal is prosecuted.

It is argued that the correspondence does not amount to a contract, or a modification of the original contract, to the effect that plaintiff might substitute Puritan flour for Sunkist flour, but that the offer meant and should .be construed as meaning that plaintiff might secure Wells Abbott, Nieman Co., the manufacturers of Puritan flour, to furnish that flour direct to the defendant. The letter of defendant of April 18th seems to us capable of the two different constructions put on it by the parties. It was known to defendant that the plaintiff construed it as an offer that Puritan flour might be substituted. In its answer of April 20th to this offer of the 18th, the words “direct to Omaha” were underscored' to call attention to the fact that the order should not be sent to Wells, Abbott, Nieman Co., who were located, not at Omaha but at Schuyler, Nebraska. No objection seems to have been then made by defendant to this construction of the contract, and plaintiff had no intimation until May 7th that the defendant construed it otherwise, and was not notified until May 30th that the defendant refused to perform the contract as construed by the plaintiff. We are of the opinion that the defendant should not be permitted to complain of this construction of the contract under these circumstances. The language of the offer was chosen by the defendant; if ambiguous it was its fault, and if interpreted by the other party contrary to the intention of the author, notice should have been given.

It is argued that the plaintiff released the defendant from any obligation under the contract, even if the contract be conceded, by cancelling the first two deliveries without the consent of the defendant. This contention rests on the well-recognized principle of law that a contract cannot be rescinded in part and affirmed in part. This rule of law does not apply to several contracts. 35 Cyc. 139. There is some confusion and conflict in the authorities on the question of entire and severable contracts, but the contract in question here must be treated as severable under the authority of Harber Brothers Co. v. Moffat Cycle Co., 151 Ill. 84. In that case the Supreme Court adopted the opinion of the Appellate Court [52 Ill. App. 146] in which it was said: “We have no doubt that this contract, though one, was severable, embracing independent obligations of the parties as to delivery on the one part and payment on the other, under the several orders for machines given by appellant—the principle difference between which and an entire contract is, that either party to one of the former kind, having fully performed as to any independent agreement, may maintain an action thereon for its breach by the other without averring or proving performance, or its equivalent, on his part as to all; but subject to defendant’s right to recoup for his failure as to others, in respect of which he is himself not in default. ’ ’ The contract under consideration in that case was one for delivery of goods in instalments as ordered by the defendant, and its construction is controlling here. In case of severable contracts of sale, the law is well settled that an action can be brought on the default of any of the severable parts of the contract and the contract can be rescinded as to one part without rescinding the whole contract. In cases, of severable contracts for goods to be delivered in instalments extending over a considerable period of time, a default of either party does not discharge the contract, though it must necessarily give rise to an action for damages. 9 Cyc. 648. As indicated in the above quotation from Harber Brothers Co. v. Moffat Cycle Co. supra. If action is brought for default on one part of a severable contract the defendant may recoup damages arising from the default of the plaintiff on another part of the contract if he, the defendant, was not himself in default as to that part. In the case at bar, the plaintiff was at all times ready and willing to perform each part of this severable contract, and the nonperformance of delivery of the first two instalments of flour was occasioned by the default of the defendant in failing and refusing to give shipping instructions.

The question whether the vendor of goods to be delivered in instalments, as in this case, may cancel the contract, on refusal of the vendee to accept the goods, as to such instalments as he may choose, and as to which he may perhaps profit by the cancellation, and hold the contract in force as to other instalments that because of the then condition of the market he could not cancel without a loss to himself, is a novel one. We are referred to no authority and find none directly in point. The law is well settled that plaintiff had the right to await the time of delivery fixed by the contract and recover damages based on the market at that time. Kadish v. Young, 108 Ill. 170; Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59. There can be no question that the plaintiff in this case, if the last two instalments of flour had been provided for in an independent contract, could, at its election, on refusal of the defendant to perform the contract keep it alive for the benefit of both parties and proceed, as it did, to sell each instalment at the time fixed for delivery, and recover damages on the basis of the market price at that time. White Walnut Coal Co. v. Crescent Coal Mining Co., 254 Ill. 368. In the absence of authority we are inclined to hold, on principle, that the defendant in the face of its own default cannot be heard to complain that the plaintiff chose to cancel two instalments and hold the defendant as to the two other instalments.

It is claimed that the declaration is insufficient; there were four special counts and the common counts. The fourth special count alleges a contract to deliver 2,000 barrels of flour; an offer by plaintiff to deliver; a refusal by defendant to accept; and resale after due notice, etc. It is argued that there was no contract to sell 2,000 barrels, that if there was any contract it was to sell 3,845 barrels. Even if there was a variance between the pleadings and the proofs, no objection on that ground was made in the trial court and no error is assigned or argued here on the admission of evidence. Appellant cannot now be heard to say that the court erred, either in overruling its motion for a new trial or in arrest of judgment because of a variance between the pleadings and proof. Fox v. Starr, 106 Ill. App. 273, and authorities there cited. Other objections to the declaration might have been considered had they been raised on demurrer, but the defendant having pleaded to the merits, the question now is, was there one count in the declaration good after verdict? We have no doubt the declaration was good, at least after the verdict.

Finding no error in the record the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Warren E. Reynolds, Plaintiff in Error, v. Harriet E. Reynolds et al., Defendants in Error.
    Gen. No. 5,833.
    1. Partnership, § 397

      —when bill for accounting against devisees of copartner demurrable. A bill filed by complainant against his mother and his children for an accounting and apportionment to him of his partnership interest in certain property and funds devised to defendants by his father, who was complainant’s copartner in business, held demurrable where it alleged that title to real estate purchased with partnership funds was taken in the name of his father, that the partnership was dissolved, and it appeared that complainant had waited until his father’s estate had been administered and his rights had become barred by the statute of limitations before the hill was filed.
    2. Partnership, § 392

      —time within which bill for accounting may be filed. A bill for an accounting of partnership assets must he filed within five years after the dissolution of the partnership.
    3. Limitation op actions, § 41

      —application of statute giving creditors of deceased one year to file claims. The saving of the statute giving creditors of deceased one year after the issuance of letters in which to exhibit their claims applies only to actions against the executor or administrator.
    Error to the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.

      Henry C. Ward and James Hamilton Lewis, for plaintiff in error; Robert P. Burkhalter, of counsel.
    Stager & Stager and McCalmont & Ramsay, for defendants in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Plaintiff in error filed a bill in equity against his mother, Harriet E. Reynolds, and his children, Helena B. Reynolds and Edwin S. Reynolds, to which the mother demurred and the children by guardians ad litem, they being minors. The demurrers were confessed and he filed an amended bill, to which the mother demurred and the daughter, having then become of age, demurred, and the son demurred by his guardian ad litem. Said demurrers were sustained and the amended bill was dismissed for want of equity. Complainant below sued out this writ of error to review said decree.

The amended bill will hereinafter be referred to for brevity as the bill. The bill alleged that in 1885 complainant lived in Prophetstown, Whiteside county, with his parents, Edwin and Harriet E. Reynolds, and became of age in that year, and wished to engage in some profitable occupation; that his father whs then engaged in farming and in raising and buying and selling blooded stock, principally neat cattle; that his father proposed to complainant that if he would stay at home with his parents, the father would take him into partnership in said business and give him a half interest therein, and complainant accepted said offer; that no written articles of partnership were ever entered into, but a verbal agreement was made between them that complainant should take the management of the business off from his father’s hands and leave him only the part of adviser and director in the management of the business; and that all the stock of hay, grain and feed should be held in common between the two, and that the nse of the farm, farm buildings, farming utensils, etc., should be considered partnership property, for partnership benefit; that they then entered into the work of said partnership; that no inventory was taken of the effects of the partnership; that the partnership assumed the name of Edwin Reynolds and Son, or E. Reynolds and Son, and by that name made contracts, had bank accounts, printed pedigrees of various animals and had letter heads, bill heads and advertising matter; that the complainant had the entire management of the business of the firm and devoted his entire time to it, and drew out of the partnership funds only small amounts for living expenses, taking nothing as compensation or salary, as it was a part of the agreement that all profits above reasonable living expenses should be left in the business; that complainant drew partnership checks in paying expenses and purchases, and from time to time, as such partnership accounts were balanced in the book, the bank books and returned checks were checked over by said Edwin Reynolds, and he was at all times advised as to the partnership business, and the actual condition of the same; that the firm made a great deal of money, and in 1891 purchased a certain farm of 200 acres described in the bill; that complainant proposed that the title should be vested in said Edwin Reynolds to please his vanity, and the title was so taken; that in 1904 another farm of 413.83 acres was bought with the partnership funds, and the title placed in said Edwin Reynolds; and that complainant desired the title should be so placed, both because the firm was contemplating going out of business in the near future, and complainant desired to go into some other business which would take him away from the neighborhood where these farms were, and he feared that he might make a failure in any venture he might enter upon, and he knew at the time that he was an only child and that the estate not used by his parents in their lifetime would descend to him, and also because Ms father had told him that he had executed a will whereby, after the death of both his parents, the entire remaining estate would come to complainant; that in March, 1905, the partnership was dissolved, and notice thereof given in a newspaper, and complainant left home and went into a different business, and drew from the partnership a small part of his interest therein; that on account of the age of Ms father and mother he never asked for a division of the partnersMp assets, and no such division was made; that he did not suspect that his. father had changed his intention to give Mm his property in Ms last will until after his father died, in January, 1910, and said will was presented for probate, and it gave all Ms personal property and the life use of his real estate to said Harriet E. Reynolds and in fee to the children of complainant subject to said life estate; in which will it was also stated that the testator had advanced to complainant $10,000 and that he, by said will, gave Mm said money in full of Ms share in the estate; and said Harriet E. Reynolds and another were made executors; that complainant did not administer upon the partnership estate, as his mother knew all these facts, and he relied upon her sense of justice to inventory the partnership estate, and, acting under legal advice, he waited until the estate of his father was duly settled, and tMs was done without the partnership interests of complainant having been adjusted. The bill also alleged that there were other lands and village property which complainant was informed and believed were purchased with the joint funds of the partnership ; that since its acquisition by purchase from partnership funds, the real estate has greatly increased in value; that complainant refrained from persisting in the distribution of the property of the partnersMp during the lifetime of the said Edwin Reynolds because he relied upon the high integrity of his father"; but that under some influence unknown to the complainant, his father lost sight of complainant’s legal rights in the property and made said will as if all of said property had been the exclusive estate of said Edwin Reynolds. The bill also alleged that his mother, Harriet E. Reynolds, knew of the partnership, knew of the investment of the partnership funds in this real estate and knew of his rights generally. The bill prayed that a full accounting be had between the complainant and the said defendants, and that their respective interests in the subject-matter be determined, and the interest of complainant be apportioned to him, and that defendant Harriet E. Reynolds be required to disclose fully all the chattel property of which Edwin Reynolds died possessed, and all the notes, securities and other credits he possessed or was entitled to possess at the time of his' decease, and a full description of all the real estate of which Edwin Reynolds died seized, other than that described in the bill, and that a receiver be appointed.

By the averments of the bill, the partnership was dissolved in March, 1905. On April 1, 1909, Edwin Reynolds made the will set out in the bill. Edwin Reynolds died in January, 1910. His will was admitted to probate and his estate was duly settled, and thereafter this original bill was filed on December 20, 1911, and summons served the next day. The demurrers claimed that the bill showed on its face that the right to an accounting, if one ever existed, was barred by the statute of limitations before said bill was filed, as was also complainant’s right to have any of said property apportioned to him, and also his right to a discovery, and also his right to any of the relief prayed for, and that the same were also barred by laches, by equitable estoppel, by estoppel in pais and by the statute of frauds.

We are of the opinion that unless some facts are shown in the bill relieving complainant from the operation of the statute of limitations, he was required to file his bill fpr an accounting within five years after the dissolution of the partnership, or by March, 1910. If the death of his father operated to suspend his rights in any respect, it was only his right to proceed against the executors, and that suspension was only for one year from the time when he could have taken out letters as the sole heir at law, if the executors did not do so. As the bill declares the estate was “duly settled” before he filed the original bill, and, as the statute gave creditors one year after the issue of letters in which to exhibit their claims, it is obvious that the time of one year saved by statute had expired before this bill was filed. But that saving of the statute is only as to actions against the executor or administrator. The title to this land passed directly to the devisees under the death of the testator, subject to the life estate granted to Harriet E. Reynolds by the will, and as to the land, no reason is perceived why the running of the statute was arrested by the death of the father, unless some sufficient excuse is shown in the bill. The excuses set out in the bill are these: His father had, at some time in his life, told him that he had made a will giving the complainant all the property upon the death of both his parents, and his father afterwards made the will above referred to. There is no averment in the bill when this statement was made by Edwin Reynolds to complainant. It may have been very many years ago. There is no suggestion in the bill that that statement was false when made. The bill does not allege any facts tending to show a contract to devise the estate to complainant. The bill does not intimate that such statement was made to complainant for the purpose of deceiving him, or for the purpose of inducing him to have the title to these lands put in the father (who, the bill alleged, proposed that the title should be placed in the son), or that it was in any way connected with the placing of the title to the lands in the father, except that complainant says that when he proposed to have the title to the land last purchased placed in his father, he remembered and thought of that statement which his father had at some time prior made to him. The will which was probated was made long after the son dissolved the partnership and left home, and it may very well be that the father had good reasons for changing his mind. As another reason why the statute of limitations should not run, it is alleged that his mother, the executrix, knew all about the partnership and investment of the partnership funds in land. That would be no reason why the statute of limitations should not run in favor of the father while he lived, and he lived, and the statute ran in his lifetime, from March, 1905 until January, 1910. It is not averred that the mother deceived him or did any act prejudicial to his interests, except that she proceeded to administer the estate. A third reason urged why the statute of limitations should not run is because this was between parents and child. We are of opinion that nothing is alleged in the bill concerning that relation which would tend to arrest the statute of limitations. It is further to be noted that the statute gave complainant, as a partner, the right to inventory and administer the partnership effects in the Probate Court, and that complainant did not perform that duty or act upon the privilege which the statute gave him. Moreover, under the present statute, the proceedings for the administration of an estate are in personam and not merly in rem, and it must be presumed, in the absence of any allegation in this bill, that the complainant was duly notified of the death of his father, of the application for probate of the will and for letters testamentary, and of the application to close the estate, and that he was heard in reference to all these matters if he desired to be heard. Complainant now contends that this is not a bill for an accounting of a partnership, but to enforce a trust, and that the various things above stated should prevent the statute from being applied to obstruct the enforcement of the trust. He argues that his father promised to will this land to him, and that the making of the will, which was probated, was a fraud upon his rights, and that he did not discover that fraud until the will was probated, and the statute did not begin to run against him until that time. There is no foundation for these positions in the bill itself. Complainant does not state therein that his father ever promised to convey this land to him. He does not aver any facts which constitute a fraud upon his rights. He has waited until the estate was administered and until his mother’s right to renounce the will and take her rights as widow has expired, and, after his rights are barred by the statute of limitations, he now seeks this relief. We are of opinion that the court properly sustained the demurrers to the amended bill and dismissed the bill for want of equity.

The decree is affirmed.

Affirmed.


text:
    Lottie B. Turner, Appellee, v. Modern Woodmen of America, Appellant.
    Gen. No. 5,862.
    1. Insurance, § 761

      —when benefit society cannot claim answer in application was false. Where an applicant for membership in a benefit society made true statements to the society’s examining physician and the physician wrote an inaccurate answer in the application, a defense that the answer was false cannot be maintained in a suit on the certificate by the beneficiary to recover insurance.
    2. Insurance, § 793

      —when benefit society estopped to claim forfeiture of certificate for false answer in application. Where an application was addressed to a local camp of a benefit society as well as to the head camp, held that the head camp was estopped to claim a forfeiture of the certificate by reason of false answers in the application, where the local camp with full knowledge of a false answer in the application voted to make the applicant a member, accepted his dues and remitted the same to the head camp.

      3. Insurance, § 761

      —when applicant by signing and delivering application does not warrant answers to be true. An applicant by-signing the application and delivering it to the society does not warrant the answers to be true, though directly beneath his signature was the following printed words: “A copy of your application for membership is attached to this certificate—Read it—. If any answer or statement therein is not correct, notify the Head Clerk at once.” „
    4. Insurance, § 761

      —when examining physician is agent of benefit society. A regular examining physician of a benefit society is the agent of the society, and the society is bound by his acts within the scope of his authority notwithstanding an express stipulation in the application that the applicant makes him his agent.
    5. Insurance, § 889

      —when evidence of conversation with member concerning his health competent. In an action on a benefit certificate to recover insurance, sustaining an objection to an offer to prove by a witness a certain conversation with the member concerning his health shortly before the application was made, held error.
    6. Insurance, § 889

      —when declarations of member admissible in suit by beneficiary on certificate. Declarations made by the member of a benefit society against his interest are admissible in evidence against the beneficiary in a suit by the beneficiary upon the certificate after the death of the member.
    7. Insurance, § 887

      —admissibility of application and examinar tion of member by another lodge. In an action by a beneficiary on a benefit certificate where the defense was that the member made false answer in his application concerning his health, defendant offered in evidence a previous application of the deceased member to another lodge, and attached thereto was an examination by the physician of such lodge in which he stated that he considered the applicant a second-class risk, etc. Held that the application was competent but that the physician’s examination not signed by the applicant was incompetent because not under oath.
    8. Trial, § 83

      —when calling witness after close of case should be permitted. Where defendant, after it closed its case and plaintiff had closed its rebuttal, called an expert witness, without previously having revealed to the court that it had an absent witness and asking permission to call him, but counsel upon calling such witness stated that the witness had been absent making professional calls and could not be obtained, held that unless the court had some reason to doubt the truthfulness of counsel’s statements he should have been permitted to testify in the interest of justice, and that although the court permitted him to testify to certain things his examination was unduly restricted.

      9. Pleading, § 136

      —effect of going to trial without written rejoinder. Where parties go to trial without any written rejoinder of issues upon certain replications to a plea, the case is treated as if there were oral denials of the replications.
    10. Appeal and error, § 1456

      —when striking of rejoinders from files harmless. Where parties go to trial without any written rejoinder of issues upon replications, and special rejoinders are filed without leave of court and without the knowledge of plaintiff, held that the striking of such rejoinders from the files at a later term did not harm the defendant.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Truman Plantz, George G. Perrin and James J. Conway, for appellant.
    R. D. Mills and M. N. Armstrong, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

The Modem Woodmen of America, a fraternal beneficiary society, issued to George Arthur Turner a certificate wherein it agreed to pay to his mother, Addie L. Turner, and to his sister, Lottie B. Turner, each one thousand dollars in case of his death while a beneficial member of said society in good standing, which certificate was dated February 2, 1909. Turner died on July 25, 1910, of pulmonary tuberculosis. His sister, Lottie B. Turner, brought this suit to recover the sum payable to her by the terms of said certificate and filed an appropriate declaration; There were many pleas, replications and rejoinders. The society claimed that the statements in Turner’s application were warranties and that certain of them were false. The beneficiary denied the falsity of the statements and set up various matters by way of waiver and estoppel. It is sufficient to say of the pleadings that all the positions taken herein by the parties were sufficiently pleaded, unless it be certain matters set up by way of rejoinder. The beneficiary had a verdict and a judgment for one thousand dollars, from which the society appeals.

Appellee contends that the statements in the application are representations and not warranties, and relies upon such cases as Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273, and other cases considered by this court in Berner v. Brotherhood of American Yeomen, 154 Ill. App. 27, and Raymer v. Modern Brotherhood of America, 157 Ill. App. 510. All the expressions found in the applications in those cases, and relied upon by the courts of Illinois to sustain the position that such statements are representations and not warranties, have been with great care -excluded from the language of this application, except that part of the medical examination which inquires if the applicant ever had any of fifty specified diseases, among which are ague, catarrh and dyspepsia. If the answer to that question is a warranty and must be literally true and covers the entire period of the applicant’s life, then it is obvious that after any member had paid ‘his dues during his lifetime, the society can probably defeat any recovery upon the certificate by finding some physician or nurse or grandmother who will remember that the applicant in his infancy or early childhood had some of these complaints. But the answers which are here complained of do not relate to said omnibus question, except the answer relating to consumption, and the other language of said application is so specific that we conclude that as to all statements here involved, except perhaps as to consulting a physician within seven years, they should be held warranties, under Crosse v. Knights of Honor, 254 Ill. 80.

The eleventh question put to Turner, the applicant, was: “Have you ever been rejected by any * * * fraternal beneficiary society?” The answer was “No.” Turner had applied for membership in the Mystic Workers of the World, a fraternal society, and that application had been rejected on July 15, 1907. The local lodge of appellant at Deer Park, in LaSalle county, was known as “Mercer Camp, No. 2967,” and Turner’s application to appellant was for membership in the head camp and in Mercer Camp. Dr. A. C. Ehiel was the Camp physician and he made the medical examination. He was a witness and he admitted that when he asked the foregoing question of Turner, the latter answered in substance as follows: “I don’t know. I have applied to the Mystic Workers for insurance but I have never heard anything from them. ’ ’ At that time Howard Bennett was consul of said Mercer Camp and C. J. Clark was its clerk. Bennett was present when this application was filled out and when this medical examination was held, and he testified that, in answer to this question, Turner said: “I don’t know;” that Dr. Ehiel said that answer was not permitted, and Turner then said: “I made application to the Mystic Workers some time ago;” and that he had been examined by the examining physician of the Mystic Workers, but had never heard from the physician or the company; and that there was then a discussion about the matter and Dr. Ehiel wrote some answer upon the paper and after the medical examination was completed, Turner picked up the examination paper filled out by the physician and glanced at it and then signed it. Dr. Ehiel testified in general terms that he wrote the answers which Turner gave him, but in regard to this particular question he stated that after Turner answered that he had applied to the Mystic Workers for insurance, but had never heard from them, there was a conversation between himself and Bennett and Turner as to how the answer should be filled out, and he finally wrote the answer which was the conclusion of himself and of the others. There was no proof that Turner had ever been notified that he had been rejected by the Mystic Workers. Clark, at the time Turner made his application to the Mystic Workers, was the officer of that body whose duty it would have been to notify Turner of his rejection, if any such notice was given, and he testified that he did not mail any notice or rejection to Turner, and that he had no knowledge that Turner knew that he had been rejected. Therefore, so far as appears, Turner told the Camp physician the exact truth in answer to this question. Under the rules of law prevailing in this State, the regular examining physician of such a society is the agent of the society and the society is bound by his acts within the scope of his authority, notwithstanding an express stipulation in the application that the applicant makes him his agent.

In Royal Neighbors of America v. Boman, 177 Ill. 27, the medical examiner asked the applicant to answer the question whether she had ever had bronchitis, and she answered that she had had an attack of acute bronchitis, and the physician said that was of no consequence and wrote the answer “No.” The court held that he was acting in the interests of the order and that his knowledge must be held to be the knowledge of the order. The Court said: “Where one makes true answers to the questions in an application for insurance, the validity of the insurance is not affected by the falsity of the answers inserted by the agent of the company, even though the application contained a stipulation that the agent took the application as the agent of the insured.” In Provident Sav. Life Assur. Soc. v. Cannon, 201 Ill. 260, it was held that notice to the agent at the time of the application of facts material to the risk is notice to the insurer and will prevent it from insisting on a forfeiture for causes within the knowledge of the agent. The Court said: “Where the assured discloses facts to the agent, and the agent undertakes to fill out the application, and instead of stating the facts as they are disclosed to him inserts in lieu thereof conclusions of his own, the insurance company will not be permitted to insist that the words of the agent, and not of the assured, are warranties, rendering the policy void. ’ ’

The same rule was applied in Farrenkoph v. Holm, 237 Ill. 94, where the applicant told the agent that he was engaged to marry the proposed beneficiary, and the agent wrote down that the beneficiary was a cousin of applicant, which was not true. It was held that the validity of the benefit certificate was not affected by the false answer inserted by the agent, but that the agent’s knowledge of the facts bound the society. In Johnson v. Royal Neighbors of America, 253 Ill. 570, one of the questions required to be asked of the applicant by the company physician was whether she had ever had “la Grippe” and the answer “No” was written. It was proved that the application was taken by an assistant deputy, and that when that officer asked the applicant this question she replied that she had been treated by physicians and had taken patent medicine for the “grippe” and that officer said that did not count, and wrote the answer “No.” Thereafter another party examined the same applicant, and she told that officer of illnesses she had had and treatments she had taken from physicians, and he wrote answers contrary to the true answers made by her. It was held that the parties taking the application were the agents of the society, and that by the conduct of the agent the society waived its right to object to the validity of the certificate on the ground that the answers were warranties. Since Turner stated the truth to the camp physician and the latter wrote an inaccurate answer, the defense that said answer was false cannot be maintained.

But the evidence seems to furnish another answer to the position here taken by appellant. Mercer Camp was the agent of appellant. The application was addressed to it as well as to appellant. It had to be first voted upon by Mercer Camp. The question whether Turner should be admitted to the order was brought up in a meeting of Mercer Camp. It is fair to assume that this application, addressed to the Camp, was there present. Several members then present, and some of them officers of Mercer Camp, were also members of the Mystic Workers and were or had been officers thereof, and they knew that Turner had been so rejected by the Mystic Workers. They stated in that meeting of Mercer Camp that Turner had been so rejected by the Mystic Workers, and that matter was there discussed, and an officer of the Mystic Workers, then present, was asked to state the cause of his rejection, and he replied that it was unrevealable. With full knowledge of this rejection, the Camp voted to admit Turner as a member. Morover, Turner was required to and did pay all his dues to Mercer Camp, and the latter remitted the same to the head camp, that is, to appellant, with full knowledge that Turner had been rejected by the Mystic Workers. It would seem that the knowledge and acts of the Camp ought to bind this society. In Order of Foresters v. Schweitzer, 171 Ill. 325, where the member was a bartender, and therefore not entitled to insurance at the rate he was paying, the Court said: “In associations of this character the relation of the members to the order is necessarily through the subordinate lodges, and when a forfeiture of the certificate of insurance is insisted upon, it is proper to show that the subordinate lodge, with full knowledge of the alleged cause of forfeiture, continued to treat the insurance as in full force, receiving the member’s dues and paying the money over to the supreme lodge. We are unable to see how such societies could be conducted upon any other principle, without great injustice to the members.”

In Coverdale v. Royal Arcanum, 193 Ill. 91, liquor dealers were not permitted to become members, and in his application the deceased had stated that he was not engaged in the sale of intoxicating liquors, whereas he did keep a bar and sometimes sold liquor over the bar, and the subordinate lodge knew the fact and yet received and transmitted his dues, It wag held that there was a waiver of the forfeiture. In Grand Lodge A. O. U. W. v. Lachmann, 199 Ill. 140, it was held that in beneficial organizations in Illinois, the subordinate lodge is the agent of the grand lodge. While this doctrine of the agency of the subordinate lodge is somewhat qualified in Love v. Modern Woodmen of America, 259 Ill. 102, yet it is there held that the subordinate lodge is the agent of the principal lodge to collect the dues, and that if it receives and pays them over with knowledge of a fact which would work a forfeiture, the right to forfeit the certificate on account of that fact is waived. Dromgold v. Royal Neighbors, 261 Ill. 60. For all- the foregoing reasons, we conclude that appellant is estopped to claim a forfeiture by reason of the answer above set out.

Appellant contends that Turner, by signing the application and by delivering it to the local camp or to appellant, bound himself that the foregoing answer was true. In several of the cases above cited the applicant signed the application containing the untrue answer and delivered it to the society and yet the society was not permitted to set up its untruth as a breach of warranty. Directly underneath the signature of Turner to the application was the following, printed in capital letters: “A Copy of your application for membership is attached to this certificate— Bead it—If any answer or statement therein is not correct, notify the Head Clerk at once.” It is contended that by reason of those words, the foregoing rules should not apply. In Johnson v. Royal Neighbors of America, supra, there was printed in the certificate a like request, and it was held that that did not affect the rule above stated.

By the fourteenth question Turner was asked, if within the last seven years he had been treated by or had consulted any person or physician in regard to any personal ailment and if so to give the details. He answered that he had been treated on April 3, 1907, for a boil by Dr. A. C. Rhiel of Tonica, Illinois, and that his recovery was complete. A plea alleged that he had within seven years consulted a physician for other purposes, and on that plea issue was joined. There was no proof that he had ever been treated by or had consulted any other physician, but questions put to the witness, Matthew Kerwin, and an offer of proof by said witness, might have shown this, if the proof had been admitted. Kerwin had known Turner for from thirteen to sixteen years before he died, and the offer that was made was to show that shortly before Turner made this application to appellant he told the witness that he had consulted a physician for his health and had received certain advice from him. Appellant did not offer to prove that Turner stated the date of this consultation or stated that it was within seven years before this application to appellant. The question had relation also to a sleeping in a tent and appellant treats it as if the witness had testified that Turner lived in a tent four or five years before his death, but the question which elicited the answer was, whether “some four or five years or longer” before his death he lived in a tent, and this answer was answered in the affirmative. There was no attempt or offer to show that Turner had consulted a physician within seven years before his death.

To the question whether Turner had ever had any local disease, personal injury or serious illness, he answered “No.” To the question whether he was now in sound body, mind and health, and free from disease and injury, he answered “Yes.” To the question whether he had ever had consumption he answered “No.” It was pleaded that each of these answers was false. The application contained an agreement that the certificate should be void unless delivered to Turner while he was in sound health, and there was a plea that he was not in sound health when this certificate was delivered to him. These matters may be considered together.

The proof shows that Turner had pneumonia a few months before he died and that after he recovered from pneumonia he was taken with consumption and died therefrom. There was evidence tending to show that he had always been in good health, except for the ordinary diseases of childhood, until he was taken with pneumonia several months after this certificate was issued and that the consumption resulted from the pneumonia. There was evidence tending to show that he was unnaturally thin and below normal weight, and that he had been troubled with a cough before this application was made. Matthew Kerwin was a witness for defendant. He had known Turner from thirteen to sixteen years. Turner had at different times worked for him upon Kerwin’s farm. He testified that some time prior to the making of-this application Turner lived in a canvas tent. The court sustained numerous objections put to Kerwin which sought to obtain from him the narration of a conversation he had with Turner, not long before this application to appellant was made, concerning Turner’s health. Some of the questions were leading but others were not. The jury was then withdrawn and an offer was made to prove that shortly before this application was made Turner told Kerwin that he had consulted a physician for his health and that said physician had advised him that he had tuberculosis and that he would have to live in a tent in the future for his health. An objection to this offer was sustained. In mutual benefit insurance the contract is between the society and the member. The beneficiary has no interest in the contract while the member is alive. The member can change his beneficiary whenever he pleases. In such cases declarations made by the member against his interest are admissible in evidence against the beneficiary in a suit by the beneficiary upon the certificate after the death of the member. Niblack on Benefit Societies (2nd Ed.) sec. 325; 2 Bacon on Benefit Societies, sec. 460. Court of Honor v. Dinger, 123 Ill. App. 406, affirmed in 221 Ill. 176, and cases there cited. Therefore any statements or declarations which Turner made to any one, tending to show a defense to this certificate or the untruthfulness of the statements in the application, would be competent evidence against the beneficiary in this suit, where such defense is pleaded. It may be that a mere statement by Turner to Kerwin that a physician had at some time advised him that he had consumption, standing alone, would not be competent evidence, either that he did have consumption or he answered the foregoing questions untruly. But when coupled with the fact that he did live in a tent, the testimony would tend to show that at that time he regarded the advice as true and acted upon it. We are of opinion that the examination of Kerwin was unduly restricted.

Defendant offered in evidence exhibit 6, which was the application of Turner to the Mystic Workers, and attached thereto was an examination by the physician of the society, Dr. James T. Green, in which he stated that he considered Turner a second-class risk and found unfavorable features in his physique, family or personal history, habits, residence, occupation, habits or circumstances in life, and that in his judgment his present prospects were not good for attaining full expectancy of life. Plaintiff objected to the introduction of this exhibit and that objection was overruled. The application signed by Turner was competent, but the physician’s examination not signed by Turner should not have been admitted, as it was not under oath and was incompetent. Railway Conductors’ Benefit Ass’n v. Robinson, 147 Ill. 138-158; Pudritzky v. Knights of Honor, 76 Mich. 428. Thereafter, and after defendant had closed its case and plaintiff had closed its rebuttal, defendant called Dr. Green as a witness and sought to examine him concerning the condition of Turner at the time he examined Turner upon his application to the Mystic Workers. It was objected that this was a part of defendant’s original case, which we think was true. It was stated by counsel for defendant that they had tried to call him before but that he was with a patient and could not be obtained. Defendant, before closing its case, should have revealed to the court that it had an absent medical witness whose professional engagements prevented him from being present at that time but that he would be produced later, and should have then asked permission to call him when he could attend. Although that was not done, yet, unless the court had some reason to doubt the truthfulness of counsel’s statement, we are of opinion the witness should have been permitted to testify, in the interests of justice. The court did permit him to testify to certain things. But still we are of opinion that his examination was unduly restricted. The ruling seems to have been based upon the idea that the period inquired about was too long prior to the making of this application. If the only defense had been that he was not in good health when he made the application and when he received the certificate, that would have been a good reason for not permitting the testimony, but the issue was also being tried whether he had ever had any serious disease or consumption, and we are of opinion that the witness should not only have been permitted to testify to all that he remembered, but also to all that he remembered or testified he knew was true, after being permitted to see the report which he then prepared. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338; Richardson Fueling Co. v. Seymour, 235 Ill. 319. Upon the whole record we conclude that the defense was unduly restricted in its efforts to prove the previous ill health of Turner and to show circumstances tending to indicate that he was afflicted with tuberculosis before this application was made.

One other matter requires attention. At a term after the judgment term, appellant found it necessary to invoke the jurisdiction of the trial court to sign, nunc pro tunc, the bill of exceptions after the time fixed by the court therefor. Thereupon, at the same time, appellee moved to strike from the files a number of rejoinders, and introduced testimony showing that on the evening of the second day of the trial, and without leave of court and without notice to appellee, these rejoinders were filed, and that appellee and her counsel did not know thereof until long after judgment. The court struck these rejoinders from the files. The evidence upon this motion was preserved by another bill of exceptions. The parties had, in fact, gone to trial without rejoinders to the fourth and fifth replications, which were the third and fourth replications to the second plea. These replications concluded with a verification and did not tender an issue of fact, and a rejoinder thereto was necessary to complete the issues.

Appellee had taken no rule on appellant to rejoin to these replications and appellee had not been defaulted for failure to rejoin to said two replications, and therefore, if these rejoinders had been filed before the trial began, then, as no- leave had been obtained to rejoin double, the rule laid down in Ryan v. Vanlandingham, 25 Ill. 128, would have been applicable, namely, that the first rejoinder, to each of said two replications would alone be considered and the others would be treated as if they had never been filed; and, as the first rejoinder to said third replication only denied the agency of the Camp physician and the first rejoinder to said fourth replication only denied the agency of the Mercer Camp, and as both those agencies are established under the law, the case would not have changed in any respect, and it would have been immaterial whether the trial judge did or did not strike the rejoinders from the files. But the parties went to trial without any written joinder of issues upon said third and fourth replications to the second plea. When this is done, the rule is that the case is treated as if there were oral denials of the replications, under the authorities discussed by us in Supreme Court of Honor v. Barker, 96 Ill. App. 490. The parties having thus gone to trial as if there were oral rejoinders to said two replications, appellant conld not after the trial had begun and without leave of court and without notice and without the knowledge of appellee or her counsel file, as appellant here did, numerous special rejoinders to said two replications and thereby raise new issues, and such special rejoinders should have been disregarded by the court whenever discovered, and no harm was done to appellant by striking them from the files at a later term. In Wyatt v. Headrick, 21 Ill. 158, this course was pursued in the trial court after the cause had reached the Supreme Court, and that action was not disapproved. The matter is now of slight importance, for appellant, upon the reinstatement of the cause in the court below, can obtain leave to rejoin double if it wishes to do so, and can then file these rejoinders.

The judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Frank Stevenson, Appellee, v. Illinois Watch Case Company, Appellant.
    Gen. No. 5,843.
    1. Master and servant, § 98a

      —right to recoser for disfigurement of hand under WorTcmen’s Compensation Act. Where an employe in operating a press lost the tips of two fingers of his right hand, impairing the sense of feeling in those fingers and permanently incapacitating him in whole or in part from doing the particular kind of work in which he was engaged at the time of the accident, held that he was entitled to compensation for disfigurement of his hand under the provisions of clause C of section 5 of the Workmen’s Compensation Act of 1911, J. & A. If 5453.

      2. Master and servant, § 98a

      —when proof sufficient to dependency of persons on employe. In an action for compensation for accidental injuries under the Workmen’s Compensation Act of 1911, proof that plaintiff's mother has no property, that plaintiff and his sisters take care of her and that they all keep house together, held sufficient proof that there were persons dependent on plaintiff.
    3. Master and servant, § 98a

      —when recovery under Workmen’s Compensation Act not excessive. A judgment for $454.08 for accidental injuries under the Workmen’s Compensation Act, held not excessive.
    Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 6, 1914.
    Anson H. Brown, for appellant.
    R. H. Kramer and R. S. Egan, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal from a judgment rendered under the Workmen’s Compensation Act of 1911, in force May 1, 1912 (J. & A. ¶¶ 5449 et seq.); which act was repealed by our present act in force July 1,1913. Appellee, Frank Stevenson, while in the employ of appellant, Illinois Watch Case Company, operating a press, April 7, 1913, caught his fingers in the press resulting in the loss of about one-quarter inch of the bone from the ends of the first and second fingers of the right hand leaving only a small portion of the nail of "each of those two fingers, impairing the sense of feeling in those fingers and permanently incapacitating bim in whole or in part from doing the particular kind of work in which he was engaged for appellant at and before the time of the injury, but leaving bim. after recovering from the immediate effects able to do other and different work, at which he could earn less wages, but might in time earn as much or more wages. Arbitrators were appointed as provided by the statute and there was a majority report that the average wages of appellee before the injury were $15 per week, and after the injury $12 per week, that the injury will permanently disable him from engaging in many lines of high class employment, and awarding him the sum of $50 for loss of wages under clause b of section 5 of said act (J. & A. ¶ 5453), and the further sum of $825 as compensation for disfigurement of the hand under clause c of the said section. One of the arbitrators reported that in his opinion appellee was not entitled to recover under said clause c, because as he construed that clause the injury was not within its provisions. An.appeal was taken to the Circuit Court, where a jury was waived and there was a hearing and an award in favor of appellee in the sum of $454.08, followed by judgment, from which this appeal is prosecuted. It appeared on that trial that the earning capacity of appellee was $2.35 a day during the time he worked for appellant prior to the injury, and that he was twenty-one years old.

Appellant concedes that appellee is entitled to recover $52.50 for seven weeks of total disability, but insists that he is not entitled to recover for the disfigurement of his hand, and therefore that the judgment in so far as it exceeds that amount is entirely unsupported. The controversy rests on the construction of paragraphs b, c arid d of section 5 of said act. These paragraphs read as follows:

“b. If the period of disability lasts for more than six working days, and such fact is determined by the physician or physicians, as provided in section 9, compensation equal to one-half of the earnings, but not less than $5.00 nor more than $12.00 per week, beginning on the eighth day of disability, and as long as the disability lasts, or until the amount of the compensation paid equals the amount payable as a death benefit.

c. If any employee, by reason of any accident arising out of and in the course of his employment, receive any serious and permanent disfigurement to the hands or face, but which injury does not actually incapacitate the employe from pursuing his usual or customary employment so that it is possible to measure compensation in accordance with the scale of compensation and the methods of computing* the same herein provided, such employe shall have the right to resort to the arbitration provisions of this act for the purpose of determining a reasonable amount of compensation to be paid to such employe, but not to exceed one-quarter (%) the amount of his compensation in case of death.

d. If after the injury has been received it shall appear upon medical examination as provided for in section 9, that the employe has been partially, though, permanently incapacitated from pursuing his usual and customary line of employment, he shall receive compensation equal to one-half of the difference between the average amount which he earned before the accident, and the average amount which he is earning, or is able to earn in some suitable employment or business after the accident, if such employment is secured. ’ ’

Appellant’s contention is that the injury in question here did actually incapacitate appellee from pursuing his usual and customary employment, therefore it was not an injury that could be compensated under clause c. "While it is true that the injury did temporarily so incapacitate appellee, yet it was not one so far as the disfigurement of the hand is concerned that it was possible to compensate in accordance with the scale of compensation and the methods of computing- the same provided in clause b or any other clause or section of the act. We are therefore of the opinion that he was entitled to recover compensation for the disfigurement of the hand under the provisions of clause c. Appellant’s contention is that clause c is designed to cover cases where the injured employe entirely recovers from his injury and an unsightly scar or other disfigurement remains on his hands or face which does not incapacitate him from following his usual occupation; that if after the period of total disability has passed there still exists, as in this case, some measure of permanent partial disability, even though coupled with disfigurement, he cannot proceed under clause c for an arbitration but must proceed if at all under clause d, which it will be observed provides only for a loss in earning capacity. This construction leaves the employe without remedy in case of a disfigurement of the hands or face, from which he is temporarily disabled and compensated under clause b, if it does not result in a diminution of his earning capacity in some other employment compared with his earning capacity before the injury. As applied to this case, if the proof showed that appellee could earn as much or more than he was earning at the time of the injury by changing to some other suitable employment, he could only recover for his temporary total disability and would be left remediless for the loss of his finger tips. It is quite conceivable that a workman might lose his entire hand and after he recovered from the immediate consequence of the injury because of such loss engage in some profession or calling where his earnings would be much larger than in the employment in which he was injured. Under appellant’s construction of the law he would be entitled to recover under clause b for the time lost from the immediate effects of the injury and would be driven to clause d for any recovery for disfigurement and could not recover under that clause because there would appear no comparative loss in his earnings. The legislature should not be held to intend such a result unless its language admits no other reasonable construction, and we are of the opinion that the language in clause c can be reasonably construed as providing for compensation for the disfigurement in such cases.

It is argued that there is no sufficient proof that there were persons dependent on appellee so that in case of death there could have been compensation awarded. Therefore, no basis for fixing compensation “not to exceed one-quarter the amount of his compensation in case of death.” The proof is that his mother has no property; that appellee and his sisters take care of her; that they all keep house together. This seems to us a sufficient answer to that question.

It is said the judgment is excessive. The compensation in case of death is fixed by section 4 of the act at a sum equal to four times the annual earnings of the employe, not less in any event than $1,500 and not more than $3,500. It will be seen that the judgment was well within the limit fixed by the statute. The amount was for the court to determine and the damages are not capable of definite measurement, as in cases of injury to chattels. Under this act it is no doubt true that no two judges and no two juries acting independent of each other would find the same amount of compensation for such a disfigurement. We assume that question must under this act, as under the law theretofore existing, be left largely to the judgment of the jury or court deciding the matter in the trial court, and see no reason for reversing the judgment on that ground.

A motion by appellee to dismiss the appeal was taken with the case. Having reached the conclusion that the case should be affirmed on the merits, we have not deemed it necessary to discuss or much consider the reasons suggested for and against that motion, and therefore the motion to dismiss the appeal is denied, and the judgment of the trial court affirmed.

Judgment affirmed.


text:
    A. H. Nilson Machine Company, Appellee, v. Kurtz Action Company, Appellant.
    Gen. No. 5,835.
    1. Contracts, § 157

      —right to enforce contracts against public policy and prohibited by law. Where a party comes into court seeking to enforce a contract which is against public policy or is prohibited by public law, the court will refuse to aid either party and will leave them where they have placed themselves, and in refusing to enforce such contracts the court does not act for the benefit or for the preservation of the alleged rights of either party, but in the maintenance of its own dignity, the public good and the laws of the State.
    2. Sales, § 329

      —when secret agreement to pay buyer’s agent commissions established by the evidence. In an action by one corporation against another to recover a balance due for goods ordered by an official of defendant corporation, a defense that there was an arrangement between such officer and an officer of the plaintiff corporation whereby the officer of defendant corporation received secret commissions on goods ordered and that such payments of money were a fraud upon defendant constituting a defense to the entire claim, held established by the evidence.
    3. Appeal and error, § 1241

      —when party cannot complain of refusal to give instructions. Where a defendant otters two sets of instructions together he cannot complain of refusal of court to give one of the sets, where both sets could not be given and the choice made by the court was invited by defendant offering both sets of instructions together.
    Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 6, 1914.
    A. D. Early and R. K. Welsh, for appellant.
    E. D. Reynolds, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

The A. H. Nilson Machine Company is a corporation organized, under the laws of Connecticut and has its place of business in Bridgeport, in that State, and has been engaged for many years in the manufacture and sale of special machinery. Its chief stockholder and managing director is A. H. Nilson. The Kurtz Action Company is a corporation organized under the laws of the State of Illinois, has its place of business in Rockford, in Winnebago county, and for many years has been engaged in the manufacture and sale of piano actions. For many years prior to and at the time of the mailing of the contracts here sued on, Fred K. Kurtz was the secretary and manager of the Kurtz Action Company and had entire control of the activities of the Company until a few months previous to his discharge, which took place on May 20, 1910. In the course of its manufacturing business it became necessary for the Kurtz Company to have certain special machinery and it had purchased such machinery for many years from the Nilson Company, all of the business relating’ to those transactions being’ carried on between Nilson and Kurtz for their respective companies. These two men had been acquainted for about twenty years, and Kurtz frequently visited the establishment of the Nilson Company in Bridgeport. Early in the year 1910, the management of the Kurtz Company changed and a new manager, W. B. Thayer, was installed. At that time the balance claimed to be due from the Kurtz Company to the Nilson Company amounted to $2,368.05, and this sum the Kurtz Company, under its new management, refused or failed to pay. Suit therefore was accordingly brought by the Nilson Company in assumpsit and a declaration was filed containing the common counts, and also one count on a quantum valebat. There was a jury trial and a verdict for the plaintiff in the sum of $1,800. A motion for a new trial was overruled and plaintiff had judgment in that amount, from which defendant below appeals.

The evidence shows that Kurtz was in Bridgeport iat the establishment of the appellee in March, 1909, and that either while there or upon his return to ¡Rockford he gave an order in the name of appellant to Nilson, acting for appellee, for certain machinery, and that this suit is brought for the balance of the cost of that order. Appellant claims that it was arranged between Nilson and Kurtz that Kurtz should receive secret compensation or commissions from the appellee out of the moneys to be paid appellee by appellant for said order. The evidence shows, without contradiction, that various sums, aggregating in all $1,500, were paid to Kurtz by Nilson, and appellant claims that this alleged agreement and the payment of- these sums of money was a fraud upon appellant and constitute a defense to the entire claim of appellee, or, at least, that appellant is entitled to a set-off in the sum of $1,500.

Appellee contends that Nilson paid these various sums of money to Kurtz as a reward for favors done by him to Nilson about twenty years before; that Kurtz had furnished Nilson with many ideas relative to his business which were of great value to him, and that he had desired to make some recompense to Kurtz for such assistance, but had never before that time been able to do so; and that shortly before the giving of this order Kurtz had come to him and claimed to be in need of financial assistance and he had agreed to give Kurtz $1,500, which he did in instalments and entirely without reference ot the business transaction between the two companies.

We are unable to accept the theory of appellee regarding the payment of this money by Nilson to Kurtz. If Nilson felt under obligations to Kurtz for past favors or assistance and felt that he ought to pay Kurtz the exact sum of $1,500, he would naturally have made it in one payment, if his financial condition would enable him to do so at that time. If not, he would naturally have given Kurtz his note or notes for that amount, clue at some later date or dates, when he felt confident that he would be able to make payment. Instead, the evidence shows that Nilson made payments to Kurtz as follows: $115 by check on July 20, 1908, which was before the order here sued upon, but shortly after a large payment by appellant to appellee upon a prior contract; $300 by check on April 3, 1909; $335 by note dated July 1, 1909, which "was afterwards paid in full; $300 by note dated October 1, 1909, which was afterwards paid in full; $400 by note dated December 14, 1909, which was afterwards paid in full; and $50 by check, of which the date was not proved. We consider it highly significant that each of these checks or notes were drawn and delivered to Kurtz at the time or shortly after the Nilson Company had received a remittance on account from the Kurtz Company. If Kurtz was in Bridgeport he was paid at the same date that he made a payment for appellant to appellee, while if he was at Rockford he was paid as soon after a remittance to appellee as it could reasonably be received by mail. Nilson admits in his testimony that he never paid Kurtz any money until he was in the employ of appellant and that he made no payments to him after his discharge. The preponderance of the evidence also shows that the prices charged appellant for the machinery purchased by it were greatly in excess of its value, and while appellant never complained to appellee of the prices it was forced to pay and was apparently satisfied therewith, yet the fact remains that during that time Kurtz was in entire control of appellant and could buy machinery for appellant for any price he saw fit to pay. That these events so happened without any relation of cause and effect is contrary to human experience. Ramsay’s Estate v. Whitbeck, 183 Ill. 550. We cannot agree with the claim of appellee that the purchase of the machinery was open and above board and in good faith, and that the jury has approved of the entire transaction by its verdict. The verdict was not for the full amount claimed, nor did it include any interest, though the account was about three years in arrears. Appellee requested an instruction that the jury assess its damages at $2,683.05. The verdict was $883.05 short of that amount, and while we cannot know the reason for this deduction by the jury, yet it is a fair inference that it was made because the jury found fraud in the payment to Kurtz or because it believed appellant had been overcharged for the machinery purchased by it. The evidence by Nil-son as to his reasons for wishing to pay Kurtz the sum of $1,500 is not convincing, and the entire transaction strongly savors of fraud. It seems to us from the clear preponderance of the' evidence that this money was paid by Nilson to Kurtz in pursuance of an agreement and in consideration of certain orders for machinery from appellant, and that, as part of this agreement, the prices to be paid by appellant were raised to such an extent over the ordinary market price that Kurtz could be paid his commissions without actually reducing the profits of appellee. In other words, by this agreement, appellant itself furnished the money with which these commissions were paid to Kurtz. During all this time Kurtz was a salaried officer of appellant and had no authority to receive any such commissions. He owed to it the duty of devoting his time and efforts solely to its interest. We conclude that the conduct of appellee, in entering into such an arrangement with the representative of appellant, constituted a fraud upon appellant.

The courts of this and other States have always looked with much disfavor upon conduct such as is revealed in the clear preponderance of the testimony before us. Here, Kurtz was the employe and agent of appellant, and as such was under the paramount duty and obligation so to act as best to promote the interests of the corporation for which he was working and whose affairs he was conducting. Such an agent has a duty to discharge of a fiduciary nature towards his principal, and it is a rule of universal application that no one having such duties to discharge shall be allowed to enter into engagements in which he has or can have a personal interest conflicting, or which position may conflict, with the interests of those whom he is bound to protect. See Smythe’s Estate v. Evans, 209 Ill. 376, on page 382, and cases there cited. These cases proceed upon the ground that such, a contract, made by the agent of one party to serve another with whom the first employer is dealing, is contrary to public policy, where the interests of the employers involved are adverse. The great weight of authority is that where a party comes into court seeking to enforce a contract which is against public policy- or is prohibited by public law, the court will refuse to aid either party and will leave them where they have placed themselves, and in refusing to enforce such contracts the court does not act for the benefit or for the preservation of the alleged rights of either party, but in the maintenance of its own dignity, the public good and the laws of the State. Smythe’s Estate v. Evans, supra, and many cases cited on page 383.

We are asked to reverse without remanding, but we are precluded from so doing by the state of the record. We assume that under the general issue, appellant could have the benefit of the defense that a contract tainted with such illegality cannot support any recovery. Appellant not only pleaded the general issue, but with it a notice that by a conspiracy between appellee and said Kurtz it was overcharged $2,236.82 for the machinery sued for, and that Kurtz was unlawfully paid a commission of ten per cent, upon the price of said machinery, amounting to $1,378.30, making a total of $3,615.12, and it offered to set-off that amount against appellant’s demand, and averred it would ask a judgment against appellant for the difference between that sum and appellant’s claim. Appellant asked instructions, which the court gave, to the effect that if its said defense was established it was entitled to an offset for the amount of the compensation or commissions so paid by appellee to Kurtz, and other instructions, which the court refused, that under like circumstances appellee could recover nothing. If the latter instructions had been first offered and refused, appellant might have then offered the former without losing his right to assign error in refusing to instruct that there could be no recovery under the circumstances named in the latter instructions. But apparently appellant offered all these instructions together and gave the court a choice of instructions, and it cannot be heard to complain that the court adopted the theory it presented that the circumstances stated were a proper matter of set-off and refused those instructions based upon the theory that the illegality would prevent any - recovery. The two sets of instructions could not both be given, for appellant could not have a set-off and also entirely defeat appellee’s claim. The choice made by the court was invited by appellant. But under the theory which the court so selected, the recovery was for much too large an amount.

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Justice Higbee

text:
    Commissioners of Highways of Saline Township, Appellants, v. John Klaus, Appellee.
    1. Costs, § 82

      —when taxing costs against successful party improper. On appeal to the Circuit Court from a justice judgment taxing all costs against the appellants when they prevailed in their suit, held error.
    2. Roads and bridges, § 43

      —right of owner of land to damages caused by vacation of highway. Where land crossed by a highway is damaged on account of the vacation of the highway by the Highway Commissioners, the owner is entitled to compensation by virtue of section 13 of article 2 of the Constitution, J. & A. ¶ 143, and also sections 39, 40, 41 of the act relating to “Roads and Bridges,” J. & A. ¶¶ 9666-9668.
    3. Roads and bridges, § 147

      —when direction of verdict in proceeding to assess damages caused by vacation of highway improper. On appeal to the Circuit Court from a judgment rendered on a petition filed by Highway Commissioners to assess damages to land on account of the vacation of a public highway across such land, a direction of a verdict to find the issues for the Commissioners and to find that the owner was not entitled to any damages, held error.

      Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Rehearing denied January 6, 1914.
    J. P. Streuber and D. H. Mudge, for appellants.
    C. H. Burton, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

The questions submitted to us in this case grew out of the following facts': John Klaus, appellee, is the owner of some seventy acres of land in section four in Saline township, Madison county, Illinois, which was crossed at the extreme northeast corner by a public highway, which had existed there for some fifty years. The Commissioners of Highways of said township, on petition properly filed, decided to vacate said highway and entered an order to that effect. Thereafter, being unable to agree with appellee, said Commissioners filed their petition before a justice of the peace of said township for the purpose of having the damages claimed by him and others ascertained and determined. Upon the trial the jury awarded appellee twenty-five dollars for his damages, and he, being dissatisfied with the amount, took an appeal to the Circuit Court, where the case was again heard with a jury.

At the conclusion of the evidence introduced by appellee, the court instructed the jury to find the issues for the Commissioners and to find that appellee was not entitled to any damages, to which action of the court appellee excepted. The jury thereupon returned a verdict in favor of the Commissioners in accordance with said instructions, and John Klaus entered a motion for a new trial, which was overruled. The court subsequently entered a judgment against the Commissioners of Highways for the costs of the suit and they have appealed from that judgment to this court. Appellee, Klaus, has also filed cross-errors. Both appellants and appellee have joined in the request that the judgment in this case be reversed and the cause remanded and both state good reasons why these requests should be granted.

It is provided in section 20, ch. 33 of our Revised Statutes (J. & A. ¶ 2734) that: “In all cases of appeal or certiorari, upon the judgments of justices of the peace, when the judgment of the justice of the peace shall be wholly affirmed or reversed, the party succeeding shall recover from the opposite party his costs, not only in the Appellate Court but before the justice of the peace.

In the case of Hodge v. People, 78 Ill. App. 378, it was said: “The right of a party to recover costs is purely statutory. At common law a party could not recover costs. Under the statute, the successful party only can recover his costs.” The court below therefore erred in taxing all the costs against appellants when they prevailed in their suit.

Appellee’s cross-errors raise the question of the right of the court below to give the peremptory instruction to the jury to find the issues in favor of the Commissioners and to further find that appellee was not entitled to any damages. By a stipulation filed in the case, it was agreed that the road in question had been vacated by the Commissioners, and the proofs tended to show that the seventy acres of appellee’s land were damaged by such vacation of the highway from five dollars to ten dollars per acre. Section 13 of article 2 of the Constitution of 1870 (J. & A. ¶ 143) provides that “Private property shall not be taken or damaged for public use without just compensation.”

Rigney v. City of Chicago, 102 Ill. 64, which is a leading case upon the subject, was a suit against the city of Chicago to recover damages sustained by the plaintiff, by reason of the construction of a viaduct or bridge along a street in said city, which interfered with communication with said street from certain dwelling houses occupied by the plaintiff and his tenants, and the doctrine was there recognized that under the said constitutional provision the physical obstruction of the right and means of access to the plaintiff’s premises was an element of damage.

In Lake Erie W. R. Co. v. Scott, 132 Ill. 429, it is said: “A highway beside a farm may, and generally does, give it an increased value, depending, to some extent, upon the location of the buildings and the character and degree of use the owner may have for such highway. In so far as its use is interfered with or destroyed, the value of the farm is lessened, and for that the owner should recover, for he sustains some special pecuniary damages in excess of that sustained by the public generally. ’ ’

By the same reasoning it would appear that appellee, IClaus, could not be lawfully deprived of the highway leading to his premises, which had been in existence for fifty years or more and the loss of which would injure the premises from five dollars to ten dollars an acre, by the Highway Commissioners, unless compensation should be paid him for the injury sustained.

In addition to any right of recovery appellee may have had by virtue of the constitutional provision above referred to, our statutes in relation to roads and bridges especially provides for ascertaining and paying the damages accruing to a landowner by the vacation of a road. Section 39 (J. & A. ¶ 9666) of said act provides that the commissioners before they shall “order any road to be established, altered, widened or vacated,” ascertain in the manner provided by the act, the aggregate amount of damages which the owner of the land over which the road is to pass shall be entitled to, by reason of the location, alteration ot-vacation of such road. It is provided by section 40 (J. & A. ¶ 9667) that the damages sustained by the owner of the land by reason of the “establishment, alteration, widening or vacation of any road” may be agreed upon by the owners of snch lands and the commissioners or they may be released by such owners, in which case the agreement or release shall be in writing and shall be filed and recorded with the copy of the order “establishing, altering, widening or vacating such road” in the town clerk’s office. Section 41 (J. & A. ¶ 9668), with which this ease is directly concerned, is in part as follows: “In case such damages are not released or agreed upon as in the preceding section specified, the commissioners shall within ten days from the date of the meeting at which it was decided to grant the prayer of the petition, make certificate that they are about to establish, widen, vacate or alter a public road, describing such road, vacation, widening or alteration, and the land over or on which such road is to be established, altered, widened or vacated and naming the owners of such lands if known, and if not known stating the fact and asking for a jury to assess the damages of such owners.”

It follows from what is above said that the court below erred in instructing the jury .to find a verdict in favor of appellants and also to further find that appellee was not entitled to any damages in the case. The judgment of the court below is reversed and the cause remanded, and it is ordered that each party pay one-half of the costs in this court.

Reversed and remanded.