text:
    T. T. Hinde et al., Appellants, v. H. M. Madansky et al., Appellees.
    1. Landlord and tenant—when abandonment not justified. If a leasing has taken place the tenant has no right without cause to abandon the premises and refuse to pay the rent stipulated.
    2. Landlord and tenant—obligation of former to re-rent. If demised premises are improperly abandoned by the defendant it is the duty of the landlord to use due diligence to re-rent the premises and thus reduce the amount of the tenant’s liability. The burden of establishing lack of due diligence by the landlord rests upon the tenant.
    3. Measure of damages—in action against tenant for rent where tenant has wrongfully abandoned. The measure of damages for the abandonment of a lease by a tenant is the rent agreed to be paid less whatever the landlord could have made out of the premises by the use of due diligence after they came into his possession.
    Assumpsit. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Springer & Buckley, for appellants.
    Warnock, Williamson & Burroughs, for appellees; Thomas Stallings, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit in assumpsit commenced in the Circuit Court of Madison county, November 20, 1908, by T. T. Hinde and J. C. Hinde, partners doing business as Hinde & Hinde, against H. M. Madansky and his three sons, doing business under the firm name of Madansky & Sons, to recover ten months’ rent at the rate of $120 a month for two store buildings, owned by the first named firm.

The declaration contained two special counts and the common counts. The first count relied upon and set out in full, a statement in writing, the principal provisions of which are as follows:

“Madansky & Sons,
Tri-Cities, Ill.
Dear Sirs:—We will lease you for a term of five years the two new store rooms to be built by us on Madison Avenue, Madison, Ill., between our present store building and Dave Washauer’s Store building to be built according to plans and specifications, etc. for the sum of $120 per month payable monthly cash in advance. The term to begin at the completion of said store rooms which we expect to be August 1st, 1907, and at the beginning of such term you are to be released from the lease of the store room now occupied by you * * * and also bind ourselves during the five year term of your lease or until you discontinue your present line of business in both of said store rooms not to rent either of the four store rooms immediately south of the proposed new building and fronting on Madison Avenue for any business to carry a line of men’s clothing, shoes, wearing apparel, etc., it being a part of this proposition that should we rent either one or more of said store rooms for a dry goods or department store business it must be under written lease from us, excluding the lines above mentioned. * * *
Hinde & Hinde, by T. T. Hinde.
Dated March 18th, 1907.
We hereby accept the above rental proposition this 19th day of March, 1907.
H. M. Madansky & Sons,
By B. H. Madansky.”

It was alleged that appellants built said store rooms and appellees took possession of the same on February 1, 1908. The second count avers that appellants entered into a written agreement to lease to appellees the two store rooms in question, for five years from the completion of the same; that the rooms were completed about January 1, 1908, but at the request of appellees, the time for the commencement of the lease was extended to February 1, 1908, at which time appellees entered into possession of the same.

There was a verdict in favor of appellants for $240 for which judgment was rendered, and they, being dissatisfied with the amount recovered by them, appealed to this court.

At the time the written proposition was made and accepted, appellants, as it appeared from the proofs, owned certain store rooms in Madison, Illinois, also some vacant lots adjoining the same. Appellees occupied the store rooms next to the vacant property for which they were paying appellants $60 a month rent. After their proposition was accepted, appellants proceeded to erect two brick store rooms on the vacant lots and while they were being constructed, appellee, B. H. Madansky, who appears to have been the managing partner for appellees, was about the building, and at his suggestion and request many alterations and additions were made, for one of which, if not more, he agreed to pay the additional expense incurred. There was also evidence tending to show that he stated he had leased the rooms. About this time, appellees, whose store was called “The Model,” had a sign put in the window of one of the new store rooms, stating, “This building will be occupied by The Model February 1st” and on the show window of the other new room was a sign, “For Bent, Apply at The Model.” On the front window of the room occupied by appellees was placed a notice of a “removal sale.” In the latter part of January there was a fire near the property in question, which destroyed the building occupied by another clothing store. Two witnesses testified that they went to B. H. Madansky and requested him to give up one of the rooms to the man who had been burned out, but he refused to do so, saying that he needed the rooms and the party was a competitor. About March 3, 1908, B. H. Madansky and his father went to the office of appellants and after some conversation with T. T. Hinde, in which the question whether they had rented the rooms or not was warmly contested, B. H. Madansky, who had possession of the keys to the new rooms, threw them down on a desk, refused to acknowledge the lease and, with his father, left the office.

Appellants did not acknowledge the right of appellees to give up the rooms and made no effort to rent them to others. It was shown by the proofs that two different parties desired to rent rooms but appellants refused to accept them as tenants.

It appears to be clearly shown by the evidence that the said written instrument was executed by the parties to the suit; that thereafter the building was erected by appellants; that appellees under the written agreement, caused changes in the same to be made to suit their convenience; that the time for the commencement of the lease was changed at their request to begin on February 1,1908, and at that time they took possession of the premises; that on March 3, 1908, appellees undertook to abandon their rights and obligations under the contract but that appellants would not give consent for them to do so.

Under the circumstances, we are of opinion the instrument in question must be considered as a leasing of the premises by appellees and the jury properly recognized the right of appellants to recover.

Upon the trial certain checks given by appellees to appellants and bearing the statement “Bent in full up to date” or other words of like nature, were admitted in evidence by the court. These checks from their amounts and the circumstances under which they were given, were plainly understood by both parties to cover only the rent for the old store building occupied by appellees and had no relation whatever to the new store rooms. In fact, appellees have always denied that they were under any obligations to pay rent on the new store buildings and have refused to do so. Appellants objected to the introduction of these checks in evidence and assert here that it was error to admit them. While the bearing these checks may have had upon the question in issue was very slight, yet we think they were admissible as tending to show that appellees were continually denying they were under obligations to pay rent to appellants, except for the store room occupied by them. In order that no injury might accrue to appellants, the trial court instructed the jury that if they found the checks in question were given in payment for the rent of a building other than the one mentioned in said instrument in writing, they should not consider payments made by such checks in arriving at their verdict.

After the attempted abandonment of the leásing contract by appellees on March 3, 1908, the rooms in question remained vacant. Appellants themselves testified that they did not try to rent the property after the keys were returned to them.

Notwithstanding the fact, however, that appellants refused to acknowledge the right of appellees to surrender their lease, there were certain obligations resting on the former as owners of the building, in reference to the renting and occupancy of the same. This obligation did not affect appellants’ legal right to recover damages, but concerned the measure of damages.

Appellees correctly assert that the measure of damages for the abandonment of a lease by a tenant, is the rent agreed to be paid, less whatever the landlord could have made out of the premises by the use of due diligence after they came into his possession. Resser v. Corwin, 72 Ill. App. 625.

It was, however, the duty of appellees and the burden was upon them to show, in order to relieve them from the payment of all or any portion of the rent after their attempted abandonment of the lease, that appellants did not exercise due diligence to rent or lease the abandoned premises and also that the exercise of such diligence on their part would have resulted in securing another suitable tenant. It was also the duty of .appellees to show how much rent could have been obtained for the premises by appellants, from such tenant, in order that their actual loss as owners of the building might be ascertained.

Appellants were only entitled to recover a sufficient sum to make them whole for the loss, if any, occasioned by appellees’ attempted abandonment of their lease. The sum of $240 recovered, was the amount of rent due at the time appellees surrendered the premises and there is no evidence in this record tending to show whether appellants could or could not have rented said premises thereafter to other suitable parties. In the absence of proof upon this question, appellees were not entitled to be relieved from the payment of rent on the premises covered by the lease after their abandonment of the same. The judgment of the court below will therefore be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    John Gill, Appellee, v. Nicholas Gill, Appellant.
    Landlord and tenant—how tenancy from year to year terminated. A tenancy from year to year cannot be terminated by a notice which does not specify termination at the end of a year. A notice which undertakes to terminate such a tenancy at an improper time is insufficient and does not form a basis for a demand for immediate possession at the end of the year.
    Forcible detainer. Appeal from the Circuit Court of Perry county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed April 15, 1911.
    Russell & Sanford and B. W. Pope, for appellant.
    J. Paul Carter and A. R. Dry, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This is a suit in forcible detainer, brought by John Grill, appellee, to recover possession of eighty acres of land in Perry county, Illinois, which he claims has been wrongfully withheld from him by his son, the appellant, Nicholas Grill.

The jury found that appellant was guilty of unlawfully withholding the possession of the premises in question, and judgment was entered that appellee recover possession of said premises and his costs.

It appeared from the proofs that on October 21, 1904, appellee purchased the premises in question from one William McConnell, for $1550; that some time the following March, appellant took possession of the same at the request or with the consent of appellee, his father. Appellant claimed that the arrangement made between him and his father was that he was to rent the place and give his father one-third of the crops, if the latter needed the same; that appellee was to keep up the taxes; that appellant was to have possession of the place as long as appellee lived and at his death it was to belong to appellant; that he went on the place under this arrangement, made valuable improvements in expectation of future ownership and fulfilled his part of the contract.

Appellee, on the contrary, claimed that the relation between the parties was that of landlord and tenant; that the tenancy was one from year to year, commencing on the first day of March each year and providing for a crop rent, which appellant had, to a very large extent, failed to pay or deliver to him. In support of his case and his right to institute the suit, appellee introduced a notice directed to appellant, dated December 27, 1909, stating: “You are hereby notified that I have decided to terminate your lease of my farm, known as the McConnell place, and you are hereby notified to quit and deliver up possession of the same to me, within sixty days of this date.”

Appellee also introduced another notice to appellant, dated March 1, 1910, demanding immediate possession of the premises in question.

If we concede that appellee’s statement of the relation between himself and appellant is the true one, as must have been found by the jury, and that the tenancy was one from year to year, commencing March 1st, neither of the two notices was sufficient to terminate the tenancy. The first one of the notices sought to terminate the tenancy and demanded possession within sixty days of December 27, 1909, which time would expire several days prior to March 1st, which was the end of the rental year. The notice was not one to terminate a tenancy on account of failure to comply with the terms of the lease, but was simply intended to be a notice to terminate a tenancy from year to year. This could not be legally terminated until the expiration of' the year. Neither was the demand for immediate possession served on the first of March, sufficient to terminate the tenancy. The other notice having been insufficient appellant was rightfully in possession of the premises on March 1st, his tenancy was not ended and appellee was not in position to demand immediate possession. Appellee therefore was not entitled to the possession of the premises in question at the time he instituted his suit and a judgment in his favor cannot be sustained.

The judgment in this case will therefore be reversed and, as in our view of the case, as above expressed, appellee cannot maintain this suit in forcible detainer, the cause will not be remanded.'

Reversed.


text:
    Anna Lumber & Manufacturing Company, Appellee, v. Orion Coal Company, Appellant.
    1. Appeals and ebboks—when purported certificate of evidence not considered. A purported certificate of evidence filed before presentation to the judge and subsequently signed after making various changes, is not such a certificate of evidence as will be considered on review.
    2. Appeals and ebbobs—how questions of evidence saved for review. In order to save for review the rulings of the trial court upon questions of evidence a proper certificate of evidence should be presented to and signed by the trial judge within the time fixed by such judge.
    3. Intebest—when allowance proper in mechanic’s lien proceeding. Interest is properly allowed upon the amount found due in a mechanic’s lien proceeding if such amount corresponds with the amount claimed in the claim for lien filed with the circuit clerk,— the filing of a correct claim for lien being treated as a statement of the account.
    Mechanic’s lien. Appeal from the Circuit Court of Perry county; the Hon. Louis Bebnbeuteb, Judge, presiding.
    Heard in this court at the October term, 1910.
    Modified and affirmed.
    Opinion filed April 15, 1911.
    Bland & Cave and I. R. Spilman, for appellant.
    A. Ney Sessions, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

On March 31, 1909, appellee filed a petition to enforce a mechanics’ lien against certain real estate, belonging to appellant, for lumber and other building material, furnished a lessee of the latter, making appellant and others, defendants.

The petition alleged that appellant was the owner of certain lands in Perry county which it had leased to the Jupiter Coal and Mining Company; that on September 1, 1906, the latter company which was mining coal on the premises, contracted with appellee for the sale and delivery of lumber and other material, to be used in the construction of certain structures on said premises; that said material was delivered to said lessee under said contract and used as contemplated; that appellant knowingly permitted the erection of said structures; that no specific time for the delivery of said material was contracted for but that the last of the material was delivered on August 6, 1907. The petition asked for an accounting of the amount due it and for a sale of the. premises, in case of the failure of the defendants to pay such amount. None of the defendants answered except appellant.

The cause was referred to a special master to take the proof and upon the hearing the court entered a decree finding the allegations of the bill to be true; that the material in question was furnished by appellee to said lessee of said premises, with the consent of appellant; that the first delivery of the same was made on September 1, 1906, and the last on August 6, 1907; that said materials were worth $986.33; that appellee was entitled to recover said amount together with interest at the rate of five per cent per annum from August 6, 1907, the date of the last delivery of material, amounting in all to $1,126.61, for which amount the decree found appellee was entitled to a lien on said premises. It was decreed that appellant and its said lessee pay appellee said sum of $1,126.61, with interest from the date of the decree, within sixty days thereafter and that in default of said payment the premises be sold.

Appellant seeks to reverse this decree and assigns a number of errors. An examination of the record, however, discloses that it does not present the facts in the case or the rulings of the court on the trial, for review. The record as filed in this court, contains the process, the pleadings and certain motions made on the trial, together with the decree. Following these is a certificate of the clerk of the Circuit Court, stating that “the above and foregoing is a true, correct and complete copy of all pleas and proceedings filed in and of all writs issued and returned, with all indorsements thereon, and of all other papers and records in the certain cause heretofore and until the appeal thereof.” Following this certificate and attached to the record is what purports to be a bill of exceptions or certificate of evidence. The decree provides that appellant should have sixty days from June 4, 1910, to present a certificate of evidence. The purported certificate of evidence filed in this case bears upon it what appears to be the file mark of the clerk of the trial court, showing that it was filed in his office July 27, 1910. It further shows by an endorsement of the trial judge, that it was presented to him after the date of said filing, on August 1, 1910.

The certificate of evidence appears to have been actually signed and certified by the trial judge on September 26, 1910, but it contains no order of the trial judge to the clerk that it be filed as of the day on which it was presented to him, nor does it appear to have ever been filed in the office of the clerk after it was signed by or presented to the trial judge. That it was filed in the office of the clerk, if such is the fact, prior to the time it was presented to the trial judge, is not sufficient, as it was not a complete certificate of evidence until certified to by the judge and in the settlement of the same, many changes may have been made before it was finally signed. The purported certificate of evidence is therefore not properly before us for our consideration.

All of appellant’s assignments of error, with one exception, referred to matters of evidence and rulings of the court, which could only be presented to this court by a proper certificate of evidence. It is proper to say, however, that we have examined the purported bill of exceptions, and .even if it were properly before us for consideration, we would necessarily hold that the court below properly found in favor of appellee on the merits of the case, and that it was entitled to a decree in its favor.

The one question raised by appellant’s assignment of errors which appears to us to be presented for consideration, without the certificate of evidence, is that which questions the right of the court to allow interest upon the amount found due appellee for materials furnished, at the rate of five per cent per annum from August 6, 1907.

In the case of Sorg v. Crandall, 129 Ill. App. 255, which was a suit under the mechanics’ lien law, the several lien claimants were allowed to recover interest from the time they filed their respective claims with the circuit clerk, the court treating such filings as statements of their accounts, it being said: “The master evidently treated the filing of the several claims as the date on which the parties stated their account and in the light of the fact that such statement, was followed by proof sufficient to sustain the whole of the claim, appellees clearly brought their demand within that section of the interest statute which, among other things, provides that interest may be allowed ‘on settlement on account from the day of liquidating accounts between the parties and ascertaining the balance. ’ ”

The decree in this case, however, does not show that appellee brought itself within the above rule or within any other rule contained in the interest statute, providing for the payment of interest. The decree of the court below will be modified by striking out that portion which provides for the payment of interest at the rate of five per cent per annum from August 6,' 1907, which will leave the value of the material furnished by appellees, which the court below found to be the sum of $986.33, as the amount for which appellee is entitled to a decree in this case, and said decree as so modified, will be affirmed.

Decree modified cmd affirmed.


text:
    Granite City Lime & Cement Company, Appellee, v. Julius Pitzman et al., Appellants.
    Mechanic’s liens—who not encumbrancers mthin meaning of section 16 of act of 1903. Trustees making a contract for the sale and conveyance of land upon certain payments of money being made, who knowingly permit improvements to be made on said land by the vendee prior to making such payments, are not encumbrancers within the meaning of geetion 16 of the act of 1903, but their rights, as against a lien- claimant, are fixed and defined by section 1 of said act.
    Mechanic’s lien. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Koerner & Koerner., for appellant.
    Warnock, Williamson & Burroughs, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

On August 1, 1907, appellants, Julius Pitzman and Charles D. McClure, • together with another person, since deceased hut succeeded in interest by appellant, L. M. Bumsey, Jr., held title as trustees for the Cool Land Syndicate of certain lots situated in the southern extension of Granite City, Illinois. They had theretofore sold and conveyed lot No. 22 in block B of said extension, to Sava N. Yarneff and Mineo Pinoff, and those parties had gone into possession of the same. On the date above mentioned, the said Pinoff and Yarneff entered into a written contract with said trustees, whereby the latter in consideration of a cash payment of $350, and the further payment of $600, to be paid in monthly installments of $30 per month, agreed to convey lot No. 1 in Block B of said extension to said Pinoff and Yarneff by warranty deed, when the full purchase price was paid. Said lot No. 22 was on the west side of said block B and fronted towards the west and said lot No. 1 on the east side thereof and fronted east, the two being separated by a 15 foot alley. Before the contract to purchase said lot was entered into, Varneff and Pinoff informed the agent of appellants that they wanted to proceed at once to build on lot 1 before it was paid for and before they obtained a deed therefor. The agent informed the trustees of such desire, and was authorized by them to give Pinoff and Varneff permission to take immediate possession of said lot and erect such a building as they desired. Shortly afterwards, Varneff and Pinoff made arrangements to build on said lot No. 1 and at the same time to complete or make some additions to a building they had previously erected upon said lot No. 22 and with both these objects in view, purchased from appellee certain building material, such as lime, cement, sand, stone and brick, to be used on both lots in making said additions and erecting said new building. The total bill for material purchased of appellee amounted to $593.26, upon which a payment was made of $47.20. Some of the material furnished consisted of tiles, the bill for the same amounting to $13, which were used on lot 22, and the rest of the material purchased of appellee was used in erecting a foundation on said lot No. 1. Said foundation was put in with the knowledge and consent of appellants’ agent, who passed by the lot very many times while the same was being constructed.

Appellee continued to deliver said material until September 10, 1907, when the purchasers of the same, being unable either to pay for the same or complete their work, refused to accept any more. Appellee, to collect its debt for the material furnished, on November 29, 1907, filed in the office of the circuit clerk of Madison county a claim for lien properly verified, which claim for lien was based on one entire contract for the material on both lots. There was an itemized statement attached to the claim for lien, which was shown to be correct, but neither the affidavit nor the itemized statement incorporated therein, disclosed what part of the material was delivered to and used upon lot 22, and what part was delivered to and used upon lot 1. Afterwards on April 17, 1909, appellee filed its petition for a mechanic’s lien against both lots, treating the claim as based on one entire contract for the material for both lots, the same as stated in the claim for lien filed in the office of the clerk of the Circuit Court.

The cause was referred to the master in chancery, who found that $533.06 of the material claimed for had been used on lot 1 and $13 worth on lot 22. Appellee dismissed its claim for the $13 on lot 22 and a decree was thereupon entered by the court in its favor for $533.06 against lot No. 1. From this decree an appeal was taken by said trustees alone, the other defendants to the bill, some six in number, not appealing.

There is no contention that the material was not furnished as claimed, nor that the claim of lien and petition were not filed in apt time, but appellant insists the decree should not be entered against their interest in lot 1, because (1st) the relation of appellants to said lot was the same as that of an encumbrancer and they should be accorded the same rights and priorities that are accorded to encumbrancers under similar circumstances; (2nd) because such a lien is indivisible and is therefore improperly filed against two separate and distinct lots of land, owned by separate and distinct parties; (3rd) because the claim filed and petition in the case, do not attempt to separate the items which went into lot 1 from those which went into lot 22; and (4th) because the court improperly admitted evidence on the trial as to what portion of the materials went into the improvements on lot No. 1 and what part into the improvements on lot 22, for the reason that there was no allegation in the petition upon which such evidence conld be based.

If appellants should in law be treated as encumbrancers of the property in question, then their rights are determined by section 16 of the mechanic’s lien law of 1903, which provides that “all previous encumbrancers shall be preferred to the extent of the value of the land at the time of making the contract and the lien creditor shall be preferred to the value of the improvements erected on said premises.” If, however, appellants are to be treated as the owners of the land, their rights and interests in the premises under the mechanics ’ lien law are altogether different.

It appears plain from the contract of sale and purchase entered into between appellants on the one part and Varneff and Pinoff on the other, that appellants were to remain the owners and retain the title to the premises until the same were fully paid for. This contract differs even from a bond for a deed and does not recite a sale of the property from the trustees to Pinoff and Varneff but only purports to be an agreement on the part of the former to convey the premises to the latter after certain payments had been made.

It was shown by the evidence, and found by the decree, that the work of construction on said lot No. 1 was authorized and knowingly permitted by the trustees and that they authorized and knowingly permitted Pinoff and Varneff to contract for the supplies and building material thereon.

Section 1 of the mechanics’ lien law provides, that any person who shall by contract “with the owner of a lot, or tract of land, or with one whom such owner has authorized or knowingly permitted to contract for the improvement of, or to improve the same,” and furnish material for such purpose, shall have a lien, etc., for the same.

In Wertz v. Mulloy, 144 Ill. App. 329, it was held that the words “authorized or knowingly permitted” above referred to, apply to the owner of the premises, even though the person who contracted to have the improvements made, had some interest or estate therein.

As appellants were the real owners and had the title to the lot in question, and as they authorized and knowingly permitted the contract for the improvements to be made, their interest in the premises must be held to be subject to the lien given appellee by the statute for materials furnished for the improvement of the same.

The other objections urged to the decree, as above stated, are substantially the same and should be considered together. -It is true that the two lots were owned by different parties and that there was no attempt to separate the items to show which materials went to lot No. 1 and which went to lot No. 22. Had there been a decree, giving appellee a lien upon both of said lots for the materials furnished, the question thus presented would be a matter for serious consideration, but as it appeared on the trial that only one item of the materials furnished, amounting to $13, was used on lot No. 22, and as appellee waived the right to a lien upon said lot and the decree only established a lien in favor of appellee upon lot No. 1, said objections do not appear to us to be substantial or well founded.

We are also of opinion that the court properly admitted evidence that the item covered by the $13 was purchased for and used upon lot No. 22, for the reason that such evidence disclosed the true facts in the case and gave the court information which was of valuable assistance in arriving at a proper decree. The decree of the trial court will be affirmed.

Affirmed.


author: Mr. Justice Higbee Mr. Justice Duncan

text:
    D. C. Ledford et al., Appellees, v. The Hartford Fire Insurance Company, Appellant.
    1. Insurance—effect of making fraudulent proofs of loss. Where a policy contains a stipulation to the effect that it shall he void in case of any fraud or false swearing by the insured touching any matter relating to the insurance whether before or after loss, a false statement under oath knowingly and purposely made by the assured for the purpose of procuring falsely excessive valuation of the property lost, causes a forfeiture of all claims under the policy and prevents a recovery thereunder by the assured.
    2. Verdicts—when not disturbed. The Appellate Court is slow to set aside a verdict where two juries have found the same way in the cause.
    3. Instructions—what phrase need not be defined. The phrase “greater weight of the evidence” is not so technical as to require explanation or elaboration. If a party desire that it be defined he may ask such definition by instructions tendered to the court.
    4. Interest—propriety of allowance in action upon insurance policy. When the. amount of money named in an insurance policy becomes due it bears interest at the legal rate, and it is proper for the jury in fixing the amount of the verdict to allow such interest at five per cent per annum; and if the jury does this no complaint can be predicated upon the fact that the instructions given limited the jury to the allowance of five per cent interest on the amount found due.
    Assumpsit. Appeal from the Circuit Court of Jackson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Barclay, Fauntleroy & Cullen and Andrew S. Caldwell, for appellant.
    W. P. Lightfoot, W. A. Schwartz and James H. Martin, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellees brought this suit in the Circuit Court of Jackson county, on an insurance policy issued by appellant, covering a stock of dry goods and. groceries, together with store fixtures in Carbondale, Illinois, where appellees were engaged in business as partners, which stock of goods and fixtures had been wholly destroyed by fire, while the policy was in force.

To the declaration appellant filed the general issue, and also four special pleas, alleging as matters of defense that appellees had made a false and fraudulent statement- of their loss to appellant; that certain duplicate invoices of goods sold them procured by appellees after the fire had been fraudulently altered by them; that appellee Ledford had made a false statement of the loss under oath with intent to defraud and deceive appellant. Two juries have found the issues in favor of appellees. The first verdict was set aside by the trial court but the second, which was for $2359.70 was sustained by the court, a motion for a new trial overruled and judgment given for that amount.

The validity of the policy of insurance and the destruction of the goods and fixtures were not matters of controversy upon the trial and the only questions of fact raised by appellant, in this appeal, are those which concern the amount of the goods destroyed, the amount of the judgment and whether appellees were guilty of fraudulent acts and statements which rendered the policy void and not subject to collection. In fact while appellant’s brief raises several questions, the whole of its argument is devoted to a consideration of the question whether the proofs show the alteration of the duplicate invoices by appellees or with their consent and whether appellee Ledford knowingly swore falsely -to the statement.

The facts leading up to the issuance of the policy of insurance and the claim of loss under it, appeared from the evidence to be substantially as follows: About January 1, 1906, appellee, A. E. Hinchcliif, tra-ded his interest in a farm to one J. B. Hester for a stock of goods and shortly afterwards bought another stock from another person, the two stocks of goods invoicing about $3175 without the fixtures, which Hinchcliff also acquired. A little later appellee Led-ford became associated with him and they carried on the general merchandise business under the firm name of Ledford and Hinchcliff. On January 26, 1906, the firm took out a fire insurance policy with appellant for the sum of $2000, of which $1500 covered on their stock of merchandise and $500 on furniture and fixtures. This policy was for the term of one year and is the one sued on in this cause. Besides the policy in question, appellees carried $4000 additional concurrent insurance on their stock in other insurance companies. On the morning of July 31, 1906, a fire broke out in the building occupied by appellees and destroyed the stock and fixtures insured. A few days later appellant and the other insurance companies interested, sent O. L. Whittemore to Carbondale as their representative, to adjust the loss. He having ascertained that their books and hills were destroyed in the fire, requested appellees to get duplicate hills of the merchandise purchased by them from the houses they had bought goods from since they commenced business, which they did; although he was informed that they had on hand an invoice of their stock made by them June 12, 1906.

Appellees testified that after the duplicate bills were-received by them, a man calling himself W. 0. Taffy came to them at Carbondale, representing that he was a “people’s adjuster” and told them he could assist in making proof of loss and adjusting the insurance matters, in which they were wholly inexperienced; that with this in view they turned over to him all the duplicate bills just as received by them, together with the invoice of June 12, 1906; some of the invoices which had not been received when Taffy was in Carbondale were forwarded to him in St. Louis, Missouri; that afterwards on Saturday, August 25, Taffy sent the papers back to appellees, writing them at the same time that the papers were all right to show proof of loss; that the papers when received by appellees were not examined by them, bnt were placed in a safe in a bank in Carbondale and afterwards turned over by them as received to appellant’s adjuster, Whittemore. The latter .retained them until the following afternoon when he and Ledford went to the office of a notary public, where Ledford signed and swore to a written statement concerning the origin of the fire, amount of loss and certain other matters connected with the fire. To this statement, as a part of it, was attached a summary of the two stocks purchased, by Hinchcliif, all bills of goods which had been purchased by appellees and an estimate of their average sales, from which was deducted a certain per cent for profits; from all of which it appeared that the total amount of stock on hand at the time of the fire amounted to $9005.04. This statement, which was introduced in evidence, shows upon its face that the sum of $1235.15, estimated as the amount of sales from June 12 to August 1, 1906, was deducted twice from the amount of stock so that the statement should have shown as the correct amount of stock lost, $10,240.19. After the duplicate invoices had been turned over to Whittemore, he discovered, and it was conclusively shown upon the trial and not contested by" appellees, that the various invoices which had been sent to appellees by the firms with which they dealt, had nearly all of them been changed or padded by raising the amounts named in them. The changes as a whole caused the bills to show an excess of $4671.33 over and above the actual bills rendered appellees by the wholesale houses. Had this fraudulent excess been deducted from the sum of $10,240.19, which the statement sworn to should have shown to be the amount of goods on hand, it would have left a balance of $5,568.86 as the value of the goods destroyed, not including the fixtures. Appellees’ invoice of June 12, 1906, showed the amount of stock to he $5,622.44, not including the fixtures, valued at $798.90, which approximately agrees with the correct conclusion of the summary or tabulated statement sworn to by Ledford.

The policy issued by appellant was a standard policy of the usual form and contained a provision that “this entire policy shall be void * # * in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof," whether before or after a loss.” This provision of the policy was a reasonable one and it has been decided by eminent authority that where a policy contains such a stipulation, a false statement under oath, knowingly and purposely made by the assured, for the purpose of procuring falsely excessive valuation of the property lost, shall cause a forfeiture of all claims under the policy and prevent a recovery thereunder by the assured. Dolloff v. Phoenix Ins. Co., 82 Me. 266; Rovinsky v. Northern Assur. Co., 100 Me. 112; Hiller Co. v. Ins. Co. of North America, 125 La. 938; Hall v. Underwriters Assn., 106 Mo. App. 476.

Appellant claims that appellees have lost their right of recovery in this case because Ledford swore to the statement of loss which included the false and padded invoices of goods sold to them by the wholesale houses, and this contention should be sustained if the proofs show that Ledford knew of the falsity of the padded invoices when he made his oath to the statement.

Appellees on the other hand claim that they turned the duplicate invoices over to the man named Taffy, who professed to be a “people’s adjuster” and that after that they did not examine them again until they were turned over to Whittemore and sworn to by Ledford; that they were absolutely ignorant of the fact that the invoices had been padded; that the changes in the same were made without their knowledge or consent; that the affidavit was prepared by Whittemore who told Ledford that it was all right to swear to it, that he had to base his claim on something and that it was under these representations and assurances that Led-ford signed and swore to the affidavit.

Appellant also claims that the man Taffy is a myth and never had any actual existence and it appears that there is certain evidence that throws some suspicions both upon the existence and the alleged acts of the man. We have to do, however, with the proofs as a whole and from them it appears that both of appellees swore positively to the existence of the identity of the man Taffy and their employment of him in connection with their proofs of loss. There are also certain circumstances in proof, which seem to corroborate their testimony in this regard. They also swore positively that they knew absolutely nothing of the manner in which the invoices had been changed and that they did not authorize any such changed condition to be made. In addition to this proof, it also clearly appeared that appellees had a valid policy, for which they had paid the premium, issued by appellant upon their stock of goods and fixtures; that their stock and fixtures were wholly destroyed by fire during the life of the policy and that the total value of the stock after deducting all the false excess amounted to $5,568.86, which was $68.86 in excess of the total insurance carried upon the same in all companies, and that the value of the fixtures was about $798.90, being $298.90 in excess of the amount of insurance carried upon them. While the fact that the actual loss shown exceeded the whole amount of the insurance, would not of itself be a defense', if appellees had knowingly and purposely made the false statements under oath concerning the amount of their losses for the purpose of defrauding appellant, yet proof of such fact tends in some degree to corroborate the claims of appellees, that the changes in the invoices were made without their knowledge; and would also tend to show an absence of motive for fraudulent padding of the invoices upon the part of appellees.

Two juries, with every opportunity of determining the credit to be given the testimony of witnesses, afforded by a trial at law, have believed the claims •of appellees and found verdicts in their favor upon the facts and we fail to find in the record proofs which would justify us in remanding this cause for another trial upon the facts.

While appellant’s argument discusses only the facts in the case, objections are made to certain of appellees’ instructions, in its brief. Appellees’ first instruction is said to be faulty for the reason that while it requires the plaintiffs to prove their case by the greater weight of the evidence, it fails to define what is meant by the term ‘ ‘ greater weight of the evidence. ’ ’ While this phrase may be and often is the subject of explanation in instructions, where there is something in the case which may lead one side or the other to desire to give the jury special information upon the question, yet as ordinarily used the phrase is not so technical as to require explanation or elaboration.

Appellant further objects to an instruction given for appellees which authorized the jury in case they found appellees were entitled to recover to allow “five per cent interest on such amount so found. ’ ’ The criticism of this instruction is that it limited the amount of interest to five per cent on the principal amount and did not authorize the calculation of interest at the rate of five per cent per annum upon the principal amount which the jury really did. Our courts have held that after the amount of money named in an insurance policy becomes due it should draw the legal rate of interest and that it is proper for the jury in fixing the amount of the verdict to allow such interest. Peoria Marine and Fire Ins. Co. v. Lewis, 18 Ill. 553; Knickerbocker Ins. Co. v. Gould, 80 Ill. 388.

Section 9 of our statute upon interest provides, that “whenever in any statute, act, deed, written or verbal contract * * * any certain rate of interest is or shall be mentioned and no period of time is stated for which such rate is to be calculated, interest shall be calculated at the rate mentioned by the year in the same manner as if 'per annum’ or ‘by the year’ had been added to the rate.”

Section 2 of the Interest Act also provides that “creditors shall be allowed to receive at the rate of five per centum per annum for all moneys after they become due on any bond, bill, promissory note or other instrument of writing.” By the terms of the policy the amount of insurance was due sixty days after satisfactory proofs of loss were furnished and therefore if appellees had a right to recover in this case, they were entitled to recover, in addition to the amount of their loss, interest upon the same, at the rate of five per cent per annum from the time said amount fell due.

A consideration of the above authorities and statute of this state, lead us to the conclusion that the term “five per cent interest” as used in said instruction, should be held to mean interest at the rate of five per cent per annum and that the jury properly calculated the interest at that rate. We find no reversible error in this record and the judgment of the court will therefore be affirmed.

Affirmed.

Mr. Justice Duncan

having tried the case in the court below took no part here.


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    Philip J. Zenk, Appellee, v. City of Troy, Appellant.

      Damages—when admission of improper evidence upon question of will not reverse. A reversal will not be awarded if the damages assessed were justified by the evidence and the court by its instructions directed the jury to disregard the improper elements of damage permitted to be shown.
    Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Burroughs & Ryder, for appellant.
    R. Guy Kneedler and C. H. Burton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This is a suit brought by appellee against appellant to recover damages on account of the alleged depreciation in the value of certain premises owned by him in the City of Troy, occasioned by the excavation made by the city along the front of said premises, for a sidewalk.

The declaration alleged the excavation to have been five feet deep and six feet wide; that thereby appellee was deprived of the free and unrestricted use of Main street in front of said premises, to the use of which he was entitled in connection therewith; that his fence was left unsupported, unsafe and in danger of falling into the street; that shade trees planted upon said premises were damaged and destroyed; that a concrete sidewalk placed by the city in said ditch, could not be used by appellee, except by great inconvenience and annoyance; that by reason of said facts, the property of plaintiff was damaged in a manner not common to the public and- its market value decreased. Plea of general issue, verdict and judgment in favor of appellee for $392.

Appellant here complains of the action of the court in its rulings in regard to the evidence and claims that the verdict was not sustained by the proofs.

The evidence shows that appellee owned a lot fronting west on Main street in said city, for 106 feet, and bounded on the south by Padon street; that it had on it a nine room two story brick house with out-buildings and along the front were some catalpa, maple and evergreen trees; that about the middle of the lot was the front gate and along the whole front had formerly been a cinder path about nine inches below the level of the ground; that in the fall of 1907, the city provided by ordinance for the grading of certain streets including Main street. As a part of the grade of this street, in preparing for a sidewalk, the cinder path was thrown out, the ground excavated and then a concrete sidewalk was put in along the front of the premises, the same being six feet wide, an average of about four feet'below the surface of appellee’s lot and about three feet below the street grade. The sidewalk ended at the southwest corner of appellee’s premises, and was so laid that it drained the water for several blocks toward that corner, where a tile was put in to carry the water across Padon street. In the course of the excavation, the roots of certain trees on appellee’s premises were cut oft, his front fence made insecure and ingress to and egress from the premises were interfered with and made difficult.

A number of witnesses were introduced by the respective parties upon the question of damages. Those on the part of appellee testified to a decrease in the fair cash value of the property which ranged as high as $1,000 while those for appellant testified that it was increased in value by the lowering of the sidewalk from $100 to $500. It was uncontradicted, however, that while the property formerly rented for $14 a month, it could only be rented for $12 a month after the ditch was made, a clear loss of $2 a month. A jury not only heard the evidence, but also viewed the premises and were therefore well equipped to determine the questions of fact submitted to them. Their finding that plaintiff was entitled to recover, as well as the amount of the recovery, appear to us to have been reasonable conclusions sustained by the proofs.

Appellant sought to prove on the trial that shortly after the laying of the sidewalk it had entered into a contract for the excavation of Main street to an established grade six inches below the sidewalk and that a bond had been given by the contractor to secure the performance of such work; that after the contractor had begun to excavate said street, he was enjoined by a temporary writ of injunction brought by other persons than appellee, from proceeding with said work and that appellee was not a party to said injunction suit, but the proffered evidence was denied admission by the court.

The bill for injunction which was offered in evidence, alleged among other things that the excavation of the streets under said contract would injure the adjoining property and render the streets impassable and unfit for use, and that the contract was illegal, because no appropriation had been made for such purpose. The temporary injunction in that suit was issued April 16, 1908, and at the time of the trial of this cause, nearly two years later, that injunction was still in force and the cause had not been finally heard. Appellee, not being a party to that suit, had no power or authority to bring about a hearing of the same, but no reason appears why the city could not have readily made a motion to dissolve the injunction and brought the matter to a hearing. Under these circumstances the court below properly refused the proffered evidence.

The court properly excluded evidence offered by appellant of two mortgages covering the property, both made by appellee and his wife on June 9, 1905. The papers offered in evidence showed that one of these mortgages, for the sum of $2,000, had been released prior to the trial of this suit, "but did not show- that the other mortgage, which was for $1,500, had been released.

The damages for which appellee sued were such as would naturally accrue to him as the owner of the fee and under the issues in this case the evidence of the mortgages was not competent.

Appellant further complains that certain witnesses for appellee were permitted to include in their estimate of the damages, certain elements which were not proper, such as damages on account of the fence falling in the street, on account of water standing in the excavation, on account of the sidewalk becoming muddy and inconvenient to walk upon and on account of the cutting of the roots of the shade trees extending into the street. We think, however, appellant was not injured by this testimony to an extent warranting a reversal of the judgment in this case, for the reason that when the question arose upon the trial, by objection made by counsel for appellant, the court at once stated that many of the elements of damages talked about by the witnesses were not proper and that the true measure of damages was the difference in the market value of the property, occasioned by the injury, if any, before the excavation and sidewalk were made and afterwards.

The court also specifically in several instructions told the jury that they were not to consider the elements of damage just named in assessing damages, and the correct elements of damage shown to exist on the trial, warranted the full amount of damages fixed by the jury. In this case, it appears to us that a clear right of recovery on the part of appellee was shown by the proofs, that the verdict was not excessive and that there were no reversible errors committed on the trial of the cause.

The judgment of the court below will accordingly be affirmed.

Affirmed.


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    Thomas Morgan, Appellee, v. Pacific Express Company et al., Appellants.
    1. Ordinary care—how question of determined. If a person is injured at a place where he had a right to be at the time and was engaged in the discharge of his duties, it is for the jury to say under all the facts and circumstances in evidence whether he was in the exercise of due care for his own safety.
    2. Verdicts—when not excessive. Held, in an action on the case for personal injuries, that a verdict of $1,500 was not excessive where it appeared that the plaintiff at the time of the accident was a strong man, about 65 years of age, earning $1.50 per day; that he was badly bruised about the back and hip and suffered a great deal of pain; that his injuries brought on a .state of nervous exhaustion so that he was incapacitated from working at his employment from the time they were incurred up to the trial of the cause, which was some three months later, during all of which time he had been attended at intervals by a physician, the evidence likewise tending to show that the injuries sustained were permanent in character.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Kramer, Kramer & Campbell and C. H. Gr. Heinfelden, for appellants; James L. Mennis, of counsel.
    W. E. Knowles, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee was injured by being struck with the tongue of an express wagon through the alleged carelessness of the driver, who was at the time in the employ of appellants and engaged in their business. Appellee brought suit and recovered a verdict and judgment for $1,500. Appellants seek to reverse that judgment and allege that the evidence did not sustain the verdict of the jury, that the court gave improper instructions for appellee and refused several that should have been given for appellants, and that the verdict was excessive.

The proofs show that on December 6, 1910, appellee was employed by the city of Bast St. Louis as a street cleaner and was working along St. Clair avenue, which runs nearly east and west near the place where the same is intersected by First street. In the center of St. Clair avenue a street car company maintains and operates a double track, and at the time named the tracks of the company were torn up at the intersection of the streets, and the nearest place to the intersection the teams could cross St. Clair avenue was about 150 feet east of First street, which was not a regular crossing and was the place where appellee was standing. The two appellants use the same wagons and drivers for the work of both companies and on the day of the accident one of their drivers was proceeding along the north side of the street car tracks in a westerly direction with a team attached to a wagon loaded with meat. At that time appellee was working with a wheelbarrow, gathering up the street cleanings he had collected and had just reached the place where vehicles crossed over the tracks, and was facing west, either wheeling, or standing between the handles of the wheelbarrow. The driver, who was coming down the street with a team in a slow trot, saw him about a block and a half away. As the team approached appellee, a saloon keeper on the south side of the street called to the driver in regard to taking a package. The driver looked back and was talking to the party who had called him, when some one cried out and warned him of appellee’s danger. The driver pulled in his team as quickly as possible and put on the brakes of his wagon, but before he could stop, the tongue of the wagon pushed forward and struck appellee in the back inflicting the injuries of which he complained.

The evidence on the part of appellee is that he was close to the track and that there was room for two wagons to pass abreast over the crossing beyond him, while there was evidence on the part of appellants tending to show that appellee was in the middle of the crossing and that there was not room to pass on either side.

It clearly appears that the driver was guilty of negligence in attempting to pass over the crossing in the condition it was then in at the rate he was going, while looking backward talking to a man at the side of the street; but it is contended by appellants that appellee was not at the time in the exercise of due care for his own safety. He was, however, at a place where he had a right to be, engaged in the discharge of his duties, and it was for the jury to say whether, under all the circumstances, he was in the exercise of due care. There was á contest upon this question and the determination of the same by the jury in favor of appellee was not unreasonable.

The complaint of appellants that instruction No. 20 offered by them was improperly refused by the court, cannot be sustained, for the reason it assumed that appellee was about to cross the street at the time he was struck, which was a controverted fact.

The other instructions refused for appellants, as well as those given on the part of appellee, disclose no errors affecting the trial of the cause.

The proofs show that at the time of his injury, appellee was a strong man, about sixty-five years of age, earning $1.50 a day; that he was badly bruised about the back and hip and suffered a great deal of pain; that his injuries brought on a state of nervous exhaustion so that he was incapacitated from working at his employment from the time they were incurred, up to the trial in March, 1910, during all of which time he had been attended at intervals by a physician, the evidence also tending to show that his injuries were permanent.

Under these circumstances we cannot properly say that the verdict of the jury was excessive. The judgment of the court below will accordingly be affirmed.

Affirmed.


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    E. N. Gillespie, Trustee, Appellee, v. Fulton Oil & Gas Company et al., Appellants.
    1. Appeals and errors—effect of decision of Supreme Court. Upon an appeal from a decree settled pursuant to the mandate of the Supreme Court, questions adjudicated by that court cannot be considered by the Appellate Court.
    2. Interest—when allowance improper. Held, under the facts of this case that the allowance of interest made by the decree appealed from was not justified either upon the ground (1) that there had been an unreasonable and vexatious delay of payment, or upon the ground (2) that the money found due had been retained by a tortious act.
    3. Interest—what not judgment hearing. Interest cannot be allowed upon a decree or upon a sum of money found due by a decree if such decree is subsequently set aside or modified by virtue of an appeal therefrom.
    Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1910.
    Modified and affirmed.
    Opinion filed April 15, 1911.
    Jay A. Hindman and Parker & Eagleton, for appellants.
    Callahan, Jones & Lowe, Golden & Soholfield and Parker & Crowley, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

This case has been here once before and to the Supreme Court three times. The facts involved and history of the case may be briefly stated as follows: On May 17, 1905, appellant, S. 0. Bowman, owned a tract of about 50 acres of land in Crawford county, Illinois, and on that date executed an oil and gas lease on the same to T. E. Pierce, who later assigned the same to appellee. On August 20, 1906, Bowman, together with his wife, executed a second lease of like character on the same land, to T. N. Bogers. The right of homestead and dower was waived in the second lease, but not in the first, and both leases were recorded, the first on June 15, 1906, and the second August 31, 1906. Shortly after the execution of the second lease to said Bogers, he assigned the same to appellant, Walter Hennig, who assigned the greater portion of his interest to the Fulton Oil and Gras Company, also an appellant. No work was done under the first lease, but the assignees of the second lease entered into the possession of the premises, and drilled and cased eight oil and gas wells. It was proven that the value of the oil and gas taken from said wells, under appellants’ lease, amounted to $9,999.25, while appellants claimed and offered to prove, but were not permitted by the court to do so, that the cost of drilling and casing said wells amounted to $8,415.24 and the operating expenses connected with the producing of oil amounted to the sum of $2,881.09, making a total of $11,296.33. On December 14, 1906, appellee filed a bill setting up his rights under the former lease and praying for an injunction, an accounting, the appointment of a receiver and the cancellation of the lease under which appellants sunk and operated the wells. On the hearing the trial court denied the prayer and dismissed the bill for want of equity.

An appeal was taken to this court, which affirmed the decree, but in the Supreme Court, to which a further appeal was taken, the decree was reversed and the cause remanded to the trial court, with directions to enter a decree in accordance with the prayer of the bill. 236 Ill. 188.

In pursuance of the mandate of the Supreme Court, the Circuit Court entered a decree on November 10, 1908, granting the prayer of the petition and attempting to fix the rights of the parties. The cause was again appealed to the Supreme Court, where the decree was again reversed and the cause remanded, with directions to re-enter the decree, modified by omitting all reference to the homestead estate, by eliminating the injunction against the removal of the property to that which could not be removed without injury to the wells and by fixing another date than that named in the decree for the making of the detailed statement of oil and gas produced. 239 Ill. 326. A new decree was thereupon entered by the Circuit Court and the case was then appealed for the third time to the Supreme Court, which again modified the decree by eliminating therefrom a provision requiring the defendants therein to turn over to the receiver any personal property, other than the casings of the wells, which had been placed upon the premises by the defendants and affirmed the same as so modified. 244 Ill. 9. Thereupon at its March term, 1910, the Circuit Court again modified or added to the provisions of said decree. In this last modified decree it was found that the Fulton Oil and G-as Company had received from the production of oil and gas on said premises the sum of $9,793.59 and that said Walter Hennig had received therefrom the sum of $205.66 and it was ordered by the court that the whole of said respective amounts be paid by said parties so receiving them to the complainant, with interest on both of said sums at the rate of five per cent per annum, from the 10th day of November, 1908, when the second decree was entered, up to the date of the last decree, which was filed July 13, 1910. From the last decree this appeal has been prosecuted to this court.

While a number of errors have been assigned, appellants rely upon and argue to this court only two propositions covering certain portions of the decree which they declare to be erroneous.

The first proposition relied upon by appellant for reversal, is, that the court below erred in not permitting appellants, the Fulton Oil and Gas Company and Walter Hennig, to introduce evidence of the amount expended by them in sinking and casing said wells and in operating the same; and also in refusing, on the same theory, to allow said appellants credit for said money so expended by them in developing their said lease and the operating expenses of said wells, as against the amount received by them from the sale of oil and gas. It appears to us that this question was fully settled in the opinion rendered by the Supreme Court on the occasion of the second appeal (239 Ill. 326), where it is said: “He (appellee Gillespie) has a right to an injunction against the defendants drilling wells on the premises. Whatever work of that kind has been done, he is entitled to the benefit of, without payment for it. Whatever material has been used in the work which cannot be taken away without injury to what has been done, should be left in place.” That opinion affirmed that portion of the decree of November 10,1908, which found that appellee was entitled to all the products of and from said wells and the proceeds derived from the same, on said premises since the 17th of May, 1905, to the date of the decree, and ordered that said appellants and said Rogers make and file on or before the 5th day of August, 1909, a detailed statement in writing under oath, of all such oil and gas produced and received by them from said date. No allowance was made in that decree for sinking the wells or the expense of production. The Supreme Court in remanding the case ordered the trial court to re-enter the decree, modified only in reference to the homestead estate, injunction against the removal of certain property and the fixing of another date for making the statement of oil and gas produced, as we have above detailed. The decree was then modified as indicated by the Supreme Court, and when it went to that court again on appeal, it was affirmed with a modification, made by the Supreme Court, simply as to certain personal property required to be turned over to the receiver.

So far as the right of said appellants to claim compensation for the sinking of the oil and gas wells and the cost of production is concerned, this matter having been fully disposed of by the Supreme Court, cannot be a subject of consideration for this court upon this appeal.

The second proposition advanced by appellant is, that the court erred in allowing interest from November 10,1908, on the amount found due from appellants, to appellee. Section 2 chapter 74 of our Eevised Statutes provides: ‘ ‘ Creditors shall he allowed to receive at the rate of five (5) per centum per annum * * * on money received to the use of another and retained without the owner’s knowledge and on money withheld by an unreasonable and vexatious delay of payment;” and section 3 of the same chapter provides: “Judgments recovered before any court or magistrate, shall draw interest at the rate of five (5) per centum per annum from the date of the same until satisfied.”

Appellee contends that the court was justified in allowing interest upon both of the grounds above referred to as mentioned in section 2 of said statute, and also upon authority of Whittemore v. The People, 227 Ill. 453, where it is said: “In addition to thé cases where interest is provided for by statute, it has been held that interest will he allowed as a penalty, where money has been secured and retained by a tortious act and where it has been fraudulently taken and its conversion concealed. ’ ’

We cannot accede to appellee’s contention in this regard as it does not appear to us that the facts in this record present a case calling for the allowance of interest on the amount found due appellee, for any of the reasons above named.

The moneys received by appellants from the sale of oil was not in a legal sense received for the use of appellee, but was claimed by appellants to rightfully belong to them and there is no evidence that they sought to conceal the receipt of the same from appellee or that they thought they had any reason for so doing. Neither does it appear that the money received by them was withheld from appellee by any unreasonable and vexatious delay of payment. It is true, as claimed by appellee, that the rights of the parties were settled by the decree of the Circuit Court entered on November 10, 1908, and that it. was then determined that appellee was entitled to all the money received by appellants for oil and gas produced and sold from said premises, but the amount received by them was not finally determined nntil it was fixed by the decree of • July 13, 1910, from which this appeal is prosecuted.

It is also true that appellants contended they did not owe appellee on said account, and therefore refused to pay the same, going to the extent of resisting appellee’s claim in this suit instituted against them. These facts, however, were not of themselves sufficient to constitute unreasonable and vexatious delay. Our Supreme Court held, in the case of Imperial Hotel Co. v. Claflin, 175 Ill. 119, that the mere fact of appearing and defending a suit was not sufficient to constitute unreasonable or vexatious delay of payment and cannot be so construed. Nor should interest be allowed as a penalty in this ease, as the proof fails to show either that the act of appellants in receiving the money for the oil and gas sold was tortious or that it was fraudulently taken and its conversion concealed, in the sense in which those terms are used in the opinion in the case of Whittemore v. The People, supra. It follows from what is above said that we are of opinion the decree of the court below should be affirmed in all particulars, except the requirement of the payment of interest on the amount found due appellee, from November 10,1908. It does not appear to us necessary to remand the cause to the trial court in order that the decree may be changed so as to conform to the views here expressed, but it will be here modified by eliminating therefrom the provision which requires the Fulton Oil and Gas Company and Walter Hennig to pay to appellee interest at the rate of five per cent per annum from the 10th day of November, 1908, to the date of the entry of the decree. The costs made in this court upon appeal should be divided between the parties, and we therefore direct that appellee pay one-half and appellants the other half thereof.

Decree modified and affirmed.


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    Mrs. Edward Schwartz, Appellee, v. Murphysboro Mutual County Fire Insurance Company, Appellant.
    1. Insurance—what competent upon question of waiver of forfeiture. Letters by officials of an insurance society showing the construction placed by such society upon its assessment by-laws and its course of dealing with its members, are competent upon the question as to whether non-payment of an assessment worked a forfeiture of the particular policy in question.
    2. Insurance—when provision of forfeiture not self-executing. Held, that a by-law of an insurance society which provided that any member failing to pay an assessment within the time fixed should “forthwith lose and forfeit all of his, her or their claims against the company but by paying up back assessments” might be reinstated, was not self-executing where the society itself had placed a different construction upon the same.
    Assumpsit. Appeal from the Circuit Court of Jackson county; the Hon. W. F. Ellis, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.

      Isaac K. Levy, for appellant.
    William A. Schwartz and Herbert A. Hays, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought suit against appellant in the County Court of Jackson county, upon a fire insurance policy issued by the latter. A jury was waived and a trial had before the court, resulting in a finding and judgment against appellant for $500, the amount of the policy. There was no material disagreement between the parties as to the facts in the case.

Appellant is a fire insurance company, organized under the laws of 1877 in reference to county fire insurance companies. On January 24, 1905, .appellee, a widow, seventy years of age, made her written application for a policy in said company to insure among other property, a dwelling house owned by her for the sum of $500. In the application signed by her appellee agreed if a policy of insurance was issued to her on said property as follows: “I will faithfully abide by and observe all the conditions, rules, regulations and orders of the company, contained in its charter and by-laws; and promptly pay whenever called upon my just share of the assessments made for the payment of losses by fire and lightning, incurred at any time by any member of the company.” The application was approved by the company and the policy issued, covering said property, January 24, 1905, which was accepted by appellee. The policy which was issued for a term of five years, recited that the sum mentioned-therein was “insured by the society unto the said Mrs. Ed. Schwartz and her heirs, executors, administrators and assigns, on the terms, conditions and provisions in the said charter and by-laws contained” upon the property therein mentioned and that in consideration of said obligation, the appellee bound “herself and her heirs, executors, administrators and assigns, truly and faithfully to comply with the constitution, rules, regulations and by-laws of said company.”

Article 25 of appellant’s by-laws related to special assessments of the members and was as follows:

“Art. 25. In case a special assessment shall be deemed necessary to be made by the board of directors, it shall be so ordered by the said board, the president' and secretary shall make out a statement, and mail it to the post-office address of each member showing his, her or their pro rata of each assessment, and upon such notice being made out and mailed, as above stated, any member or members failing to pay such assessment within the time given for collection from the date of mailing such notice, shall forthwith lose and forfeit all of his, her or their claims against the company, but by paying all back assessments may be reinstated.”

• On July 11, 1908, the company having theretofore incurred large losses, the board of directors made an assessment of seventy cents on the $100 payable October 1, 1908, to pay the same. This was known as assessment No. 23 and appellee’s share of the same was $10.15. Prior to July 18, 1908, a statement was made out by the secretary and president of the company, in compliance with the above by-law, notifying her of the amount of her assessment, the purpose for which it was made and also that it “must be paid by the first of October following.” This statement and notice was dated July 11, 1908, and was mailed to appellee at Elkville, Illinois, her usual address, and deposited in the post office at Murphysboro, Illinois. Appellee was away from her home at the time and the notice was received by some one else and placed aside, but it was not discovered by appellee until February 9, 1909, when she found it unopened in an album. The assessment not having been paid by appellee another notice was mailed her on December 8, 1908, of the same date, and identical with the one above referred to, save that it contained the following additional words, “Past due! This account had no doubt escaped your notice. Will you please favor us with an early settlement and oblige.”

Appellee testified that the second notice was received by her and that she was preparing to send the money but not having enough on hand she was holding back for a few days longer in order that she might send the full amount, when on December 18, 1908, the dwelling house, covered by the policy, was destroyed by fire. On the next day, December 19, she tendered the amount of her assessment to appellant, but the latter refused to accept it. Appellee also testified that since she had received the notice of assessment No. 23, she had been ready and willing at all times to pay said assessment to appellant.

Appellant refused to pay appellee’s claim of loss and she brought this suit on her policy. It is the insistence of appellant, relied upon by it as the main reason why the judgment below should be reversed, that appellee’s failure to pay her pro rata of the assessment in question by the first day of October, 1908, suspended her rights under her contract of insurance and that, under the evidence, the appellee had as a matter of law, abandoned her membership in the appellant company prior to the time of the alleged fire. Propositions of law in accordance with this theory were presented by appellant and refused by the trial court. Evidence was introduced on the part of appellant tending to show that appellee had stated to different persons prior to the fire that the assessments were too high, that she was going to drop the insurance; that she did not intend to keep it up any longer.

Appellee testified, however, that while she told a witness that she did not care about carrying the policy any longer, she said at the same time that she had spoken to the secretary about it, and he would not give it up until her “part” was paid.

Appellant introduced in evidence its ledger, which contained the words under appellee’s account, after the entry of the assessment of July 11, 1908, “suspended Oct. 1, 1908,” but it appeared from the evidence of Mr. Graff, the secretary, that this entry was made by him without special authority some time in January following the fire, so that it can be of no real assistance in determining the issues in this case.

Appellee was permitted over objection of appellant • to prove that on a prior occasion she had been dilatory or delinquent in making payment of an assessment against her and that on August 10, 1907, the secretary of the company wrote her the following letter in reference to the matter: “Tour letter at hand and will say that I well understand that- you wish to discontinue your insurance, but you have not sent in your policy with a written request to cancel and pay the amount against-your policy. Now if you want to discontinue this policy, send in the policy and the amounts against the policy, and we will cancel the policy, as long as the policy is out we will hold the assessments must be paid.” It was also shown that this assessment was subsequently paid by appellee and that at the time assessment No. 23, now under consideration, was made, all prior assessments against her were satisfied. We are of opinion this evidence was competent as tending to show the construction appellant itself put upon Article 25 of its by-laws above set forth and also as tending to show what its course of dealings had been with its policy holders in regard to enforcing forfeiture on failure to make prompt payment of the assessments.

In Conductors Benefit Assn. v. Tucker, 157 Ill. 194, it was held that the jury had a right to consider facts in reference to defaults made in the payment of previous assessments in connection with the previous conduct of the association towards the insured in the matter of overdue assessments, with a view of determining whether there was really a waiver of his defaults in not complying with the article of the bylaws providing for the payment of the assessments.

Appellant asserts that the provision of the above by-law which provides that any member failing to pay such assessment within the time specified “shall forthwith lose and forfeit all of his, her or their claims against the company but by paying all"back assessments, may be reinstated,” is self executing and that by the failure of appellee to pay the assessments in question by October 1, 1908, she forthwith lost and forfeited all her claims against appellant, and no further action is or could be required of any one to make the suspension complete. We do not think the words above used should be given so harsh a construction and it is evident that this construction was not given it by the company on the occasion of her former default. In fact the company then insisted that before it would discontinue the policy, the same must be sent in and the amount due against it paid. Nor did appellant insist upon the forfeiture of the policy in question upon the failure of appellee to pay her assessment by October first, but so long after that time as December 8, 1908, it considered the policy in force and sent her a similar notice to the first with the request that she favor appellant with an early settlement of the same. This notice certainly gave appellee a reasonable time thereafter to make payment. She testified that she at once proceeded to get her money together to make the payment and that she tendered it to appellant on December 19, eleven days after it was mailed to her. This does not appear to us under all the circumstances to have been an unreasonable delay and we think it a justifiable presumption from the conduct of the business between' the parties theretofore, that had not the fire which destroyed the dwelling house intervened, the payment of appellee’s assessment would have been received when proffered. We think the facts and circumstances in the case show a waiver of forfeiture on the part of appellant, even if article 25 of the by-laws could be considered as giving appellant the right of forfeiture without further steps taken on its part, to declare the same, before loss occurred. We are also assisted at arriving at this conclusion by a consideration of the law under which this company was organized. In Wallace v. Madden, 168 Ill. 356, it was held, in reference to a fraternal beneficiary society, that the statute under which it was organized became a part of the organic law of the society and that it was paramount and must prevail over any provision in the constitution or by-laws in the society. The same rule must apply to county fire insurance companies organized under the law of 1877, authorizing their formation. Section 16 of that Act provides the manner in which a member of such company may voluntarily withdraw from the same and also contains the further provision “that the company shall have power to cancel or terminate any policy by giving the insured notice to that effect.” This provision is part of the organic law of appellant company and if by-law No. 25 is in conflict with it, the law must prevail and the by-law fail. We are of opinion, however, that said by-law may be reasonably construed in connection with said provision of section 16 of the law and that when construed together, the by-law must be held to confer upon appellant the right to forfeit a policy issued by it upon failure on the part of the member holding the same, to pay an assessment within the time given for collection, by giving the insured notice of its election so to do. Such notice was not given in this case, nor were any steps taken to forfeit the policy until after the loss occurred. The court below properly gave judgment in favor of appellee and that judgment will be affirmed.

Affirmed.


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    Weber Implement Company, Appellant, v. C. C. Huthmacher et al., Appellees.
    1. Replevin—effect of pleas of property in defendant and others. Under such pleas the question to be determined is the right of the plaintiff to possession of th& property, and upon this issue the plaintiff holds the affirmative of the case and must sustain his right by a preponderance of the evidence or fail in the action.
    2. Chattel mortgages—when failure of mortgagee to foreclose does not affect lien. If the first mortgagee fails to take possession under his mortgage until several months after the maturity of the indebtedness suffered thereby, his rights are not affected as against the lien of a subsequent mortgagee who makes no attempt to take possession under his mortgage until after the first mortgagee had taken possession.
    3. Chattel mortgages—effect of replacing mortgagor in possession after condition "broken. Where the mortgagee of chattel property takes possession of the same after condition broken and retains the same a reasonable time he has a right thereafter to loan or hire the same property either to the mortgagor or to anyone else, and such transaction does not indicate either fraud or an abandonment of possession.
    Replevin. Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Rehearing denied May 16, 1911.
    McElvain & Glenn and W. A. Schwartz, for appellant.
    John H. Martin and James M. Herbert, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit in replevin brought by appellant, as mortgagee, to recover possession of a separator with stacker, a Buckeye saw mill outfit and a 15 horse power engine.

The case has been twice tried in the court below, each trial resulting in a verdict in favor of appellees. The first verdict was set aside, but the second was sustained by the trial court and this appeal resulted.

The record in this case discloses the following state of facts: On December 28, 1906, appellee Confer was indebted to appellant in the sum of $740, secured by a chattel mortgage on the property above described, and on that day appellant sent its agent, John Boe, to Grand Tower, Illinois, to collect the debt. Boe met Confer at that place and the latter executed his note to the First National Bank of Grand Tower, of which appellee Huthmacher was president, for the sum of $724. The proceeds of this note, amounting to $669, were delivered to Boe and paid on Confer’s indebtedness, leaving still due appellant, including $4 collection cost, the sum of $75. At the same time Confer executed a chattel mortgage on the same property to the bank, to secure said note, which- was due ten months after date, with interest from maturity. At the time said collection was made, Confer made an agreement with Boe for the purchase of a twenty horse power engine, Confer undertaking to turn in the fifteen horse power engine above mentioned and pay $1,000 in addition thereto, for the new engine. To carry out the agreement, Confer executed a mortgage to appellant on the same property which he had mortgaged to the bank and also the twenty horse power engine, to cover the balance of the $75 due appellant on the former debt and the $1,000 to become due under the contract for the new engine. The $75 note fell due in a few months and was paid. The payment of $1,000 was divided into three notes falling due respectively on August 1, 1907, 1908 and 1909. The last named mortgage to appellant was acknowledged before a justice of the peace thirty minutes after the mortgage to the bank had been acknowledged before the same officer, but was filed with the recorder of the county on December 29, 1906, while the mortgage to the bank was not filed for record until two days later. At the time the two mortgages were executed, it was agreed by Boe, representing appellant, that the mortgage to the bank should be a prior lien upon the property named therein. As soon as the bank discovered that appellant’s mortgage had been recorded at a date prior to its own, it notified appellant that it must satisfy its mortgage of record or if this was not done, the bank would take possession and sell the property at once. Subsequently, after some correspondence between the bank and appellant, the latter fully recognized the bank’s right of priority and in pursuance of this understanding, a new chattel mortgage upon the same property, and to secure the same notes, was executed by Confer to appellant, on January 25, 1907, and filed for record by the latter. The new engine mentioned in appellant’s mortgage of December 28, 1906, was not delivered to Confer until after the execution of his mortgage to it, of January 25,1907. An arrangement was also attempted to be brought about by appellant and Confer, whereby the bank was to receive a payment of $250 on its debt and release the fifteen horse power engine. This arrangement, however, was not concluded and is not« essential to the consideration of the case, except as evidence tending to sustain appellee’s contention that the bank’s mortgage was recognized by appellant as a prior lien.

A short time before October 28, 1907, when the note to the bank fell due, the latter gave notice to Confer that his paper was about to mature and two days prior to said date Confer, for the benefit of the bank, executed to T. W. Bowe, one of its stockholders, a bill of sale of the mortgaged property, which was never recorded. When the bill of sale was made, Confer’s note was taken up and Bowe’s, for the same amount, given tó the bank in place of it. At the time of the execution of the bill of sale to Bowe, the property named therein seems to have been scattered but it was taken possession of from time to time under the bill of sale, the last being the separator, which was taken possession of the following January. Subsequently some of the machinery was operated by Confer for the bank, under an agreement, by which he was to retain one-third of the profits and turn over two-thirds to the bank. The bank never at any time gave public notice of sale under its mortgage, nor was any public sale of the property ever made by it.

In the latter part of July, 1908, the second of appellant’s notes being unpaid and long past due, Boe, as its agent, took another person with him and went to Grand Tower to take possession of the property. They took the engine and separator and started to move them, when their arrest was caused by appellees on a charge of stealing the property. A day or two later appellant commenced this suit in replevin and took possession of the property in question.

Appellant contends that neither the bank nor Bowe had possession of the property in controversy when its agent Boe attempted to take possession thereof in July, 1908; that the bill of sale to Bowe entirely eliminated the bank’s mortgage from the case; that Bowe never had. possession of the property or exercised any ownership over the' same; that if Bowe took title to the property at all, he took it subject to appellant’s mortgage and that the question whether the bank’s mortgage should or should not have priority over that of appellant is immaterial.

The pleas in this case, in addition to the general issue, set up property in appellee Huthmacher, in Bowe and in the First National Bank of Grand Tower. Under such pleas the question to be determined is the right of the plaintiff to possession of the property and upon this issue the plaintiff holds the affirmative of the case and must sustain his right by a preponderance of the evidence or fail in the action. Atkins v. Byrnes, 71 Ill. 326; Dobbins v. Hanchett, 20 Ill. App. 396; Pinkstaff v. Cochran, 58 Ill. App. 72.

The substantial question to be first determined in this case is whether appellant was, at the time it sued out its writ of replevin, entitled to the possession of the property in question, by virtue of its mortgage of December 28, 1906, upon which it relies.

It was plainly shown by the proofs that the agent of appellant consented at the time of the execution of the two mortgages, that the bank mortgage should have priority and that this agreement was afterwards ratified by appellant, who had another mortgage upon the same property to secure their debt. By agreement between the parties a mortgage which is first recorded may be postponed to a mortgage subsequently recorded. Jones on Chattel Mortgages, sec. 245A.

We are of, opinion that under the facts in the case, appellant is"- estopped from denying the priority of the bank’s mortgage and that for the purposes of this suit, the bank mortgage must be considered a prior lien to the mortgage of appellant. The fact that the bank did not reduce all of the mortgaged property to possession until several months after the maturity of its mortgage was no fraud against or injury to appellant, who did not attempt to take possession of the same until a still later date and appellant is not in position to take advantage of the bank’s delay. Cunningham v. Nelson Mfg. Co., 17 Ill. App. 510.

“As between two mortgagees of the same property who have permitted the mortgagor to remain in possession an unreasonable time after the maturity of their respective mortgages, although neither can enforce his claim against a third party, yet the one who first acquires possession of the property is entitled to priority as against the other.” Jones on Chattel Mortgages, sec. 373 (5th Ed.); Atkins v. Byrnes, supra; Constant v. Matteson, 22 Ill. 546.

The bank had a right to take possession of the mortgaged property through itself or its agent, after condition broken and appellant cannot rightfully deprive it of such possession by replevying the property. If appellant has been injured by the failure of the bank or those acting for or under it to publicly advertise and sell the property, a remedy may be afforded it by other actions, but not by this which is merely a possessory action.

The fact that appellee, Confer, was operating the separator at the time appellant undertook to take possession of it, does not of itself show either fraud on the part of those acting for the bank, nor that they had abandoned their possession of the same. Where the mortgagee of chattel property takes possession of the same after condition broken and retains the same a reasonable time, he has a right thereafter to loan or hire the same property either to the mortgagor or to any one else and such transaction doesffiot indicate either fraud or an abandonment of possession. Cunningham v. Hamilton, 25 Ill. 212.

We are of the opinion it appears from such portion of the evidence in this case as is substantially uncontested, that appellant is .not entitled to maintain his action.

Some of the instructions given on behalf of appellee were not strictly accurate but, upon the whole, we do not think they were misleading to the jury upon the only issue presented, or were of sufficient importance to constitute reversible error.

The judgment of the court below will be affirmed.

Affirmed.