author: Mr. Presiding Justice Thomson Mr. Justice Taylor

text:
    John A. Anderson and Charles A. Gustafson, trading as Anderson & Gustafson, Appellees, v. Keystone Chemical Supply Company. Union National Bank of Philadelphia, interpleading, Appellant.
    Gen. No. 24,429.
    1. Garnishment, § 127

      —<protection of interest of equitable owners. Courts of law will notice and protect the interest of equitable owners in a garnishment proceeding.
    2. Garnishment, § 127*—application of equitable principles. In garnishment proceedings the court will apply equitable principles.
    3. Garnishment, § 24*—when proceeds of sight draft drawn by consignor of goods to his own order and placed with bank as collateral are subject to garnishment as funds of consignor. Where a consignor of goods drew a sight draft to his own order on the purchaser, attaching the bill of lading thereto, and placed them with a bank as collateral for a demand note given by him for a loan negotiated with it at the time, such note providing that the collateral and any moneys on deposit with the bank should be applicable to secure the payment of any past or future obligation of the consignor held by the bank and that such securities should be a continuing security for all óf such obligations and that in case of default by the maker the bank could sell the collateral and could become the purchaser thereof, and it appears that at the time the demand note was given and for a month thereafter the consignor had with the bank a daily balance more than sufficient to meet the demand note, and that on collecting another draft, held as collateral for the same note, the bank had credited the proceeds thereof on the note, it was held that the bank was not the purchaser of the sight di;aft but took it from such consignor for collection, the proceeds to be credited to his account when collected, and that the proceeds of the draft were subject to garnishment in the hands of another bank, to which it had been forwarded for collection, as funds of the consignor, notwithstanding! the consignor subsequently went into bankruptcy and was indebted to the bank for a large amount.
    Taylor, J., dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarbcki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 31, 1919.
    Miller, Starr, Brown, Packard & Peckham, for appellant ; Thomas McCall, of counsel.
    Alden, Latham & Young, for appellees; Charles Martin, of counsel.

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

   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The plaintiffs, Anderson & Gustafson, bought a quantity of soda from the defendant Keystone Chemical Supply Company, the price being $3,219.65. The defendant was indebted to the plaintiffs on other transactions in an amount exceeding $4,000. When the soda was shipped, the defendant drew a sight draft on plaintiffs, payable, to itself and attached the bill of lading. The defendant had a running account with the intervener, The Union National Bank of Philadelphia, and had a balance of over $11,000 in the bank at this time and it arranged with the bank for a loan of $4,000, which amount the latter credited to the defendant’s account. The defendant gave the bank its demand note for the amount of their loan and as collateral therefor it placed with the bank, the Anderson & Gustafson draft and bill of lading and also another draft (on New York) amounting to $1,479. This collateral note provided “that the securities hereby pledged, together with any that may be pledged hereafter, or any moneys now or hereafter in the hands of the holder of this obligation on deposit or otherwise to the credit of or belonging to the undersigned, shall be applicable in like manner to secure the payment of any past or any future obligations of the undersigned held by the holders of this obligation, and all such securities in their hands shall stand as one general continuing collateral security for the whole of said obligations so that the deficiency on any one shall be made good from the collaterals on the rest.” It further provided that in case of any default by the maker, the Bank could sell or transfer the collateral either at public or private sale and at any such sale the Bank could “become the purchaser and absolute owner thereof. * * * ” «The New York draft was paid and the Union National Bank credited its proceeds on the note. The Anderson & Gustafson draft was sent to the First National Bank of Chicago for collection and it was duly presented to the plaintiffs. The latter brought this action of attachment against the defendant, on the ground of nonresidence. They' then gave the First National Bank their check for the amount of the draft and received the bill of lading for the soda, and immediately the bailiff of the Municipal Court served a writ on the First National Bank, as garnishee. The garnishee answered that it had no funds belonging to the defendant save as might be shown from the foregoing facts. The Union National Bank of Philadelphia filed an intervening petition and claimed the fund attached, contending that it had purchased the draft and bill of lading for value and was the owner thereof. In addition to the foregoing facts the evidence showed that for over a month after the defendant made its loan with the Union National Bank and deposited this draft with it as collateral, their daily balance in their account exceeded the amount of the draft and the amount of the note and on the day the attachment writ was served their balance was $24,603.18.

The case was tried before the court without a jury and- the court found against the contentions of the intervener Union National Bank and gave judgment for the plaintiffs on the answer of the garnishee, for the amount the latter had received in payment of the draft and from that judgment the intervener has appealed.

The only issue presented to the trial court under the iiiterplea filed by the intervener Bank was whether the Bank had purchased the draft from the defendant for value as alleged by it in its interplea. We are of the opinion that the trial court was correct in finding that the evidence did not establish that fact. On the contrary, it showed that the intervener Bank took the draft, payable to defendant’s order, as part collateral on defendant’s note. The intervener Bank having failed to establish the allegations of its petition, the trial court correctly found the issues as between the plaintiffs and the intervener Bank, for the plaintiffs.

Counsel for the intervener Bank have called our attention to a number of cases which it is contended are applicable to the facts involved in the case at bar, namely: Ladd & Tilton Bank v. Commercial State Bank, 64 Ore. 486; Scott v. W. H. McIntyre Co., 93 Kan. 508; Painsville Nat. Bank v. Hannan (Colo.), 171 Pac. 364, and Walsh, Boyle & Co. v. First National Bank of Hiawatha, 228 Ill. 446. We do not consider these cases in point, as they might be if the draft in question had been drawn to the order of the intervener Bank and the bill of lading had been indorsed to that bank and the draft and the bill of lading had been deposited with the Bank and the draft discounted and its amount credited to the account of the depositing consignor and the latter had checked out against its deposits as thus augmented by the credit resulting from the discounted draft, and the question was as to the rights of the Bank as against an attaching consignee. Even under that state of facts it has been held that although title to the goods covered by the bill of lading passed to the Bank discounting the draft, the Bank’s ownership of the goods is conditional and not absolute and that it takes the legal title for one purpose only and that is for its protection, and if the evidence shows it does not need the goods for that purpose, because the depositing consignor has with the Bank, at the time of the attachment, an amount sufficient to satisfy the draft, the Bank cannot use the goods to enable the consignor to defeat the collection of a debt from the latter to the consignee, but should charge the account of the consignor with the amount of the draft which it has discounted. W. T. Wilson Grain Co. v. Central Nat. Bank (Tex. Civ. App.), 139 S. W. 996; Van Winkle Gin & Machinery Co. v. Citizens’ Bank of Buffalo, 89 Tex. 147. There is much more reason why this should be the ruling in the case at bar where the draft was not drawn to the order of the Bank but of the consignor and where the deposit of the draft and bill of lading was expressly made as collateral to a note, under the terms of which not only the draft but the consignor’s deposit, which was shown by the evidence to have been greater than the amount of the draft and of the note from the time the note was given until the proceeds of the draft were attached and for some days thereafter, was to be treated as a continuing collateral.

The situation is not changed by reason of the fact that the defendant is now bankrupt and considerably in debt to the intervener Bank. The evidence shows that at the time the plaintiffs attached this sum of $3,219.65, on which the intervener Bank had a lien to the extent of the balance then unpaid on the defendant’s note, which was $2,521, the defendant had some $25,000 on deposit with the intervener Bank and that for some weeks thereafter it continued to have an amount on deposit considerably in excess of the balance remaining unpaid on its note, which was a continuing collateral on the note. The intervener Bank did not need the proceeds of the plaintiffs’ draft for its protection on the note but when that was attached, it should have charged the.balance remaining unpaid on the note, against the balance the Bank owed the defendant, on its deposit. Having chosen not to do so and the deposit having been wiped out or, in other words, the Bank having paid the defendant all it owed the defendant without deducting the amount remaining unpaid on the note, it cannot now use the proceeds of the plaintiffs’ draft for that purpose, to the plaintiffs’ injury. It is the policy of the law to assist creditors in collecting just claims and it is also the rule that courts of law will notice and protect the interest of equitable owners in a garnishment proceeding, and in such suits the court will apply equitable principles. J. B. Inderrieden Co. v. United States Nat. Bank of Newberg, 176 Ill. App. 301. In that case the facts were such that the equities were with the intervener Bank, while under the evidence in the case at bar, our opinion is that such is not the case.

In the eases relied upon by the intervener Bank, the circumstances were such that if the drafts had been paid and no attachment had intervened, the proceeds of the draft would properly have been received by the Bank and become a part of its own funds and property without any further reference to the depositor (consignor) or the latter’s account and without any entries on the Bank’s books as to the depositor’s account. But it is significant that in the case at bar that was not done when the New York draft, taken by the Bank as collateral on the depositor’s note, together with the draft in question, was paid. When that draft was paid and the proceeds reached the intervener Bank, the latter credited the amount of that draft on the defendant’s note, a thing wholly inconsistent with the present contention of the Bank that it had bought the draft for value and owned it. If the intervener Bank had discounted the draft in question and owned it, as claimed, it would be entitled to the entire proceeds of the draft upon its being paid by the consignee upon whom it was drawn. But admittedly that is not the case for the proceeds of the draft were several hundred dollars in excess of the amount remaining unpaid on the defendant’s note after the proceeds of the New York draft had been credited on it.

Under all the facts in this case, the intervener Bank cannot be said to have discounted the draft. It rather took the draft from the consignor for collection, the proceeds thereof to be credited to the consignor’s account, when collected. By virtue of the consignor’s note and collateral agreement, that credit was extended at once, and in due course the proceeds of the draft would be credited on the note instead of to the consignor’s account. Thus the intervener Bank became the agent of the consignor for the collection of the draft (a very different situation from the one involved in the Walsh, Boyle & Co. case, supra), and the allegations of its interplea to the effect that the intervener had discounted the note and owned it, were not made out by the proof.

For the reasons stated we are of the opinion that the finding against the intervener was correct and therefore the judgment of the Municipal Court is affirmed.

Affirmed.

Mr. Justice Taylor

dissenting: In order that the judgment may stand, it is necessary to start with the premise that the money when paid to the First National Bank became and was in its hands that of the Keystone Chemical Supply Company. That premise, however, does not exist, as the evidence shows that the Keystone Chemical Supply Company gave the draft to the Union Bank in order that the latter might collect it for itself and keep the proceeds. Then, further, as regards the rights of the plaintiffs, they paid the draft to the First National Bank recognizing that bank as the agent of the Union Bank; and that as a matter of law was the same as though they had gone to Philadelphia and paid the money to the Union Bank over its own counter. Of course, if, as a matter of fact, they actually had done the latter, obviously they could not reasonably claim any rights in the money so paid over, either by attachment or otherwise. Stripped of bookkeeping formalities and immaterial legal considerations, and considered in a practical, pragmatic way, the money when paid by the plaintiffs to the First National Bank, eo mstanti, became that of the Union Bank and at the same instant brought about a lessening of the debt of the Keystone Chemical Supply Company to the Union Bank.

To argue, that it is only fair to allow the plaintiffs to claim what it has paid to the First National Bank, because the Keystone Chemical Supply Company had plenty of money on deposit with the Union Bank is to prefer seeming expediency to the reason of the law. The law is certain that, if the money, into which the draft and bill of lading were transmuted, was that of the Union Bank, the plaintiffs had no right to attach, no matter what the condition of the account between the Keystone Chemical Supply Company and the Union Bank. We are not entitled to help the plaintiffs at the expense of the law. Should it be announced to be the' law that, whether or not the plaintiff in such a case may attach, shall be determined by the state of the account between the interpleader and the debtor and not by the ownership of the fund attached and at once an old and fundamental principle of the law, which is based on sound reason, is brushed aside and banking and kindred commercial business rendered much more difficult.

I am much impressed by the reasoning of Mr. Justice Cartwright in Walsh, Boyle & Co. v. First Nat. Bank of Hiawatha, 228 Ill. 446, wherein occurs the folio-wing language: “The indorsement and delivery of the bill of lading to appellee operated as a symbolical delivery of the flour, and had the effect of transferring the same and vesting the title to it in appellee. * * * In such a case an attaching creditor only obtains the rights which the debtor has in the property at the time of the levy of the writ. * * The milling company would have had no right to repossess itself of the flonr without payment of the draft, and appellant had no better right. This is true whether the amount of the credit by the bank had been checked out or not.” The following decisions support the general rule: American Thresherman v. De Tamble Motors Co., 154 Wis. 366, 49 L. R. A. (N. S.) 645; Means v. Bank of Randall, 146 U. S. 620; Latham v. Spragins, 162 N. C. 404; Dickson v. Merchants’ Elevator Co., 44 M.o. App. 498; First Nat. Bank v. Dearborn, 115 Mass. 228; Neill v. Rogers Bros. Produce Co., 41 W. Va. 37; Central Mercantile Co. v. Oklahoma State Bank, 83 Kan. 504; Hawkins v. Alfalfa Products Co., 152 Ky. 152.


source: Caselaw Access Project

author: Mr. Presiding Justice Thomson

license: Public Domain

text:
    William M. Gibbons, Appellee, v. Albert Hoefeld, Appellant.
    Gen. No. 24,598.
    1. Landlord and tenant, § 264

      —when constructive eviction tafees place. There can only be a constructive eviction where the premises leased are rendered useless to the tenant or the tenant is deprived, in whole or-in part, of the possession or enjoyment of them as a result of the wilful, wrongful act of the landlord, which may be either through the wilful omission of a duty on his part or by the positive commission of a wrongful act.
    2. Landlord and tenant, § 265*—when landlord’s omission of duty will be basis of constructive eviction. To be the basis of a constructive eviction, the omission of a duty by the landlord or the wrongful act committed by him must be of a grave and permanent character, evidencing an intention on his part that the tenant shall be deprived of the enjoynlent of the premises.
    3. Landlord and tenant, § 269*—when failure to repair constitutes constructive eviction. Where the landlord has covenanted to repair, and the premises become untenable and useless for the tenant’s purposes, for want of proper repairs, and, upon receiving notice of the conditions, the landlord neglects or refuses to make the needed repairs, the tenant may claim a constructive eviction and abandon the premises.
    4. Landlord and tenant, § 206*—when landlord not required to repair wall. Semble, that in the absence of a covenant to do so, the landlord is under no obligation to repair a wall which is not one of the supporting foundation walls of the building but is a part of the demised premises having no relation to any other part of the building.

      5. Landlord and tenant, § 264

      —when fact that premises become untenable does not constitute constructive eviction. The mere fact that the tenant’s premises become untenable cannot constitute a constructive eviction, if such condition, is not the result of any wrongful act of omission or commission on the landlord’s part. •
    6. Landlord and tenant, § 326*—when not error, in action for rent defended on ground of eviction, to direct verdict for landlord. While the question whether the landlord’s acts or omission do or do not amount to an eviction is for the jury if the character of such acts or omissions is ambiguous, an instruction to find the issues for the landlord is not error where there is no evidence in the record showing or tending to show any intention on his part to interfere with the tenant’s possession.
    7. Landlord and tenant, § 326*—when not error, in action for rent defended on ground of constructive eviction, to direct verdict for landlord. In an action for rent under a lease in which defendant sets up a constructive eviction, where it appears that the landlord engaged competent architects and contractors to remedy the conditions complained of within a reasonable time after they were brought to his attention, such conditions being caused by a leakage which was in no way the result of the landlord’s act or omission and being temporary and having been remedied shortly after the tenant left the premises, it is not error to instruct the jury to find for the plaintiff.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 31, 1919.
    Adler, Lederer & Beck, for appellant; Axel Chytraus, of counsel.
    Shepard, McCormick, Kirkland, Patterson & Fleming, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and si ction number.

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

   Mr. Presiding Justice Thomson

delivered the opinion of the court.

This is an appeal by the defendant, whom we shall call the tenant, from a judgment for $4,000 recovered by the plaintiff, whom we shall call the landlord, in an action for rent under a lease, which judgment was based upon a directed verdict at the close of all the evidence.

-The material facts are not disputed.- The landlord was erecting a 16-story building on Jackson boulevard in the City of Chicago. Shortly before its completion he and the tenant executed a lease covering a part of the first floor and a part of the basement in the building, the first floor to be used by the tenant as a haberdashery shop and the basement as a salesroom for men’s clothes. The lease was for a period of 10 years at a quarterly rental of $4,000.

In erecting this new building, a rubblestone retaining wall, at the street curb line, which had been in use in connection with a previous building on the same site, was retained. The landlord’s renting agent was one Christine. It was through him that the lease in question wa's consummated in December, 1912. ■ Christine had a talk with the landlord about this rubblestone wall while the building construction was in progress and before the building was finished. Christine testified that in this conversation he told the landlord he was afraid that wall would not hold and that it would not be waterproof,—that the premises were being rented for clothing purposes and that it would be expected the walls would be tight,-—that he was afraid of this basement because he had an experience with a similar wall in the Steger building, adjoining the building involved here, and water came through that wall for 2 or 3 years after the building was constructed. About March 1, 1913, when the tenant was to have possession, it was observed that there was some seepage in the basement of the leased premises and the tenant stated he would not take possession until this condition had been remedied. The landlord or his agent notified the tenant that the condition of the wall would be remedied and that it would probably be about the 10th of the month before the work could be completed. The tenant said if that was done he would take possession. He was later notified that the work had been done and he took possession about the middle of March. Shortly after this some seepage came through the wall onto the basement floor. It was called to the attention of the agent and he reported it to the landlord and the latter said he would get busy immediately and get his contractor back to repair it, which he did. The agent Christine ceased to act as agent for this building about the middle of April. He testified that while he was there both he and the landlord “did their very best” to make the leased premises fit and habitable. One Dale, a clothing salesman for the tenant, testified that he was located at the store in question from the time it opened in March until the end of June and during that time work was done on this wall twice, in order to make it water-tight. He testified further that during that time they did a very fair business. “There had not been any falling off of business. None at all. We had our normal trade for that time of the year. ’ ’ He testified that during the time he worked at this store, they kept sawdust on the floor between the clothing cases and the wall in question.

One Kitz testified that he was a clothing salesman for the tenant, Hoefeld, at the store in the Gibbons Building beginning soon after he moved in there and until the first week in August when he went on his vacation; that the first time he had occasion to notice anything with reference to this wall was some time in June when, following a rainstorm, water trickled through the wall and practically covered the basement floor; that in some places there was half an inch or an inch of water and a few dry spots in between; that he remembered four or five different occasions when the water would trickle through the wall onto the basement floor.

The defendant Hoefeld testified that on March 1, when he was to have possession under the terms of the lease, the basement was not dry and he was assured the landlord would “proceed to make the premises water-tight”; that on March 10, the basement was still damp; that on March 15, “the premises seemed to me in good condition,” and that the agent told him they had waterproofed the wall so it would not leak any more, whereupon he moved in. The only testimony given by the defendant, covering the period from the time he moved in until “about the beginning of June,” was his statement that after he moved in and installed his fixtures and merchandise “the basement continued to be- damp. ’ ’ He further testified that “about the beginning of June,” water came through the wall and he notified the landlord; that he did not remember whether the notice was oral or in writing. He was asked if the landlord did anything after that first notice, and he answered, “I don’t think so.” He further testified that the water came through the wall “from time to time” and on June 27 he wrote the landlord about it and he received a reply the following day in which the landlord wrote: “I have taken this matter up with the contractors and they assure me that it will be attended to at once. I am very sorry for any annoyance you may be put to and hope to have it remedied very soon”; that the contractor came in “about the first part of Jilly” and worked on the wall 2 or 3 days; that water came through the wall again “a couple of weeks after that work was finished”; and he then had his lawyer write the landlord. This letter is dated July 14. Following this letter the landlord had his contractor do further work on the wall. Hoefeld testified that he consulted his architects who wrote him that in their opinion the work that was being done on the inside of the wall could not successfully remedy the condition that was present and that the only way to assure absolute immunity from any further disturbance was to open up the street and waterproof the wall on the outside. This letter from Hoefeld’s architect was sent to the landlord in another communication from Hoefeld’s lawyer dated July 16. TJnder date of July 17, the landlord replied inclosing a report from his architects saying that the wall had been waterproofed 7 feet above the floor under a contract with the George A. Fuller Company, through their contract with the Imperial Water Proofing Company, which waterproofing, when first completed, showed some tendency to leak, but was recoated, since which time there had been no evidence of leakage through that portion of the wall. This report further stated that recent leaks had appeared in the upper portion of the wall and that portion was then being waterproofed by the same company, and the architects stated that they had the assurance of the contractors as well as the Water Proofing Company that the work was being done in the most expeditious manner possible and that when completed the wall would be “bottle tight.” These architects further stated in this communication to the owner that they had frequently waterproofed walls from the inside “with perfectly satisfactory results.” They added that they had the assurance of the Fuller Company that they had done the same thing successfully in some recent operations. This report from the landlord’s architects referred to letters attached, from the Chicago Ironite Water Proofing Company and the Imperial Water Proofing Company, giving as their opinions that the inner surface of the wall is the best place to apply the waterproofing, giving reasons and citing buildings on which they had successfully performed that operation.

Under date of July 18, the tenant’s lawyer wrote the landlord acknowledging receipt of his letter of the 17th, saying among other things, that should the work you are attempting to do not secure to him (the tenant) the permanent immunity from dampness and moisture coming through these walls, we have advised him to vacate the premises and hold you liable for any damages that he may sustain.” On August 18, there was a very heavy rain and Hoefeld’s basement floor was agáin covered with water and on that day or the next he vacated the basement and on August 25 he removed from the premises entirely and returned the keys to the landlord and wrote him that he was surrendering the premises because of the landlord’s failure to make them tenable in accordance with their previous correspondence. Hoefeld testified that whenever a leak occurred he notified the landlord and the latter had his contractor send his men in to work on the wall and that this happened “three or four times”; that there “never was a time when Gibbons refused to do any of this work”; that he received some allowance on his rent fon the first quarter because he could not move in on March 1- but after that no allowance was made nor was any requested by him. Witnesses connected with the Water Proofing Company testified that in their opinion the method used in the work on this wall was the best one; that they were first directed to waterproof the lower part of the wall where the leakage appeared and “about a month” later they were directed to waterproof the wall all the way up. During the progress of their work they discovered a settlement crack in the wall from top to bottom, which they chipped out, filled with cement and covered with waterproofing. After Hoefeld moved out they put in a gutter running to a drain or catch basin in the corner. From the testimony of these witnesses it appeared that the last flooding of the basement floor was due to an old pipe, through -the upper part of the wall and flush with it, which had not been properly stopped up. It appears in evidence that the Water Proofing Company was under contract with the Fuller Construction Company to waterproof this wall and in this connection it had given a 3-year guarantee, and it further appears that after the last work done by the Water Proofing Company, before Hoefeld moved out, and after the conduit was cemented up and the gutter provided, the wall had never given any trouble and the basement was entirely dry.

Under the terms of the lease, a quarterly payment of $4,000 was due the landlord from the tenant on September 1, and the landlord brought this suit to recover that instalment of the rent.

In support of this appeal, the tenant, Hoefeld, contends that there was a concealed defect in the demised premises which made them unfit for occupation, which was not ascertainable by an ordinary examination and which was known to the landlord and unknown to him and which the landlord was therefore obligated to reveal to him, and that inasmuch as the landlord did not do so, a provision in the lease to the effect that the taking possession of the demised premises should be conclusive evidence of their good and satisfactory condition, cannot be availed of in this case. As we understand it, the landlord is not attempting to avail himself of that provision in this lease, and furthermore, although the tenant may not have known that the wall in question was one which had been in use in connection with a former building on this site, he did know before he took possession that the wall was not water-tight, and as stated above he postponed taking possession for a time because it was leaking.

The main contention made by the tenant on this appeal is that he suffered a constructive eviction and that that issue was one of fact which should have been submitted to the jury. This question involves the further inquiry as to what constitutes a constructive eviction. There can only be a constructive eviction where the premises leased are rendered useless to the tenant or the tenant is deprived, in whole or in part, of the possession or enjoyment of them, as a result of the wilful, wrongful act of the landlord, which act may be the wilful omission of a duty on his part or the positive commission of a wrongful act. Barrett v. Boddie, 158 Ill. 479; Keating v. Springer, 146 Ill. 481. To be the basis of an eviction, the omission of duty on the part of the landlord or the wrongful act committed by him must be something of a grave and permanent character, evidencing an intention on his part that the tenant shall be deprived of the enjoyment of the demised premises. Hayner v. Smith, 63 Ill. 430; Morris v. Tillson, 81 Ill. 607; John Anisfield Co. v. Covey, 140 Ill. App. 364. Where the landlord has covenanted to repair, and the premises leased become untenable and useless for the tenant’s purposes, for want of proper repairs, and, upon receiving notice of the conditions,, the landlord neglects or refuses to make the needed repairs, the tenant may claim a constructive eviction and abandon the premises. 1 Taylor’s Landlord and Tenant, sec. 330; Bostwick v. Losey, 67 Mich. 554; Leonard v. Armstrong, 73 Mich. 577; Pierce v. Joldersma, 91 Mich. 463; Sloss v. Brockman, 171 Ill. App. 465; Nelson v. Richoff (Okla.), 158 Pac. 370; Tallman v. Murphy, 120 N. Y. 345; Vincent v. Central City Loan & Investment Co., 45 Tex. Civ. App. 36, 99 S. W. 428.

But in the case at bar, the landlord made no covenant to repair and in our opinion he was under no legal obligation to repair the wall in question. This wall was not one of the supporting foundation walls of the building. It was located out under the sidewalk at the street curb line. It was a part of the demised premises and had no relation whatever to any other part of the building such as may be said to exist in the ease, of a common stairway or a hall or the roof which is for the protection and use of all tenants. 16 R. C. L. sec. 199. It is conceded, however, that the course of dealings between the landlord and the tenant was such as to show that their construction of the lease was that the basement wall remained under the landlord’s control and he seems to have taken it for granted that it was his duty to remedy such defects in the wall as were called to his attention by the tenant. This course of conduct oh the part of the landlord could hardly be said to be consistent with any intention on his part that the tenant should be deprived of the beneficial enjoyment of the premises leased.

But, assuming that the conditions complained of involved a portion of the building remaining under the landlord’s control which he was under obligation to repair if necessary, the mere fact that the tenant’s premises become untenable, cannot constitute a constructive eviction, if such condition is not the result of any wrongful act of commission or omission on the part of the landlord. 16 R. C. L. sec. 171. In the case at bar, we find no evidence in the record showing or tending to show any wrongful act on the part of the landlord, evidencing any intention on his part that the tenant should be deprived of the enjoyment of the demised premises. Certainly the landlord did not refuse to remedy the conditions complained of when his attention was called to them. On the contrary, expressing his regret over the inconvenience to which his tenant was being put, he directed his architects and contractors to remedy the conditions to which his attention had been called. We do not concur in the tenant’s contention that the record shows that the landlord specified that the waterproofing was to be done on the inside, nor would we consider that important if such were the evidence, in view of the advice the landlord had from competent sources on that subject. There is no contention that these architects and contractors were incompetent, although the tenant does contend that the best judgment called for a treatment of this wall other than that which they gave it.

Having engaged competent architects and contractors to remedy the conditions complained of within a reasonable time after the conditions were brought to his attention, even though the work they did failed to accomplish the desired results immediately, it could not be successfully contended that there was constructive eviction, whatever other rights the tenant may have had in the premises, for the conditions in question were in no way the result of any wrongful act of omission on the landlord’s part. Rather than indicating any intention on his part that the tenant should be deprived of the continued enjoyment of the demised premises, the landlord’s acts, as shown by this record, indicated quite the contrary.

In the case of Dennick v. Ekdahl, 102 Ill. App. 199, a situation somewhat similar to the one involved here was presented. That ease was an action to recover rent. The defendant claimed a constructive eviction. The premises involved were leased for a tailor shop. During the winter the trap of a pipe in the basement of the building froze and. burst. This pipe led to a washbasin in the leased premises. Under the lease the landlord was not obligated to make repairs. Nevertheless, when the tenant notified him of the bursting of the trap and requested him to have it fixed, the landlord sent a plumber to the premises for the purpose, which was the fourth time the plumber had been there on the same errand and on each occasion he had put in a new trap. The basement was unoccupied and without heat. The plumber concluded that if he put in another trap it would freeze and burst, as the others had, so he merely substituted a piece of straight pipe for the trap, although he had not been instructed to remove the trap. It was claimed that after the .trap was removed the tenant’s premises were filled with sewer gas. In considering that case this court said, “there is no evidence tending to show that the landlord intended to disturb the tenants, deprive them of the enjoyment of the premises or do anything that would cause them to abandon the same.” The court pointed out that upon receiving the tenant’s complaint, the landlord sent a plumber to the premises giving him’no directions as to the manner in which the defect complained of should be remedied. The court goes on to say: “Manifestly, the landlord did not intend to do a wrongful act, or one injurious to the tenants. The' plumber, a licensed workman, used his own best judgment. What he did may not have been -¿he best thing to do but he evidently thought it was. * * * While, whether acts constitute an eviction is a mingled question of law and fact, there must be shown an intention of the landlord, manifested by acts, to deprive the tenant of the beneficial use of the premises,—in brief, a violation of the landlord’s contract of enjoyment, to warrant a finding of eviction by a jury. Such there was not in this case.”

In Risser v. O’Connell, 172 Ill. App. 64, the landlord sued to recover rent and in defense the defendant claimed a constructive eviction. There was a judgment for the defendant and on 'writ of error to this court it was pointed out that it hád repeatedly been held that in order to constitute a constructive eviction, the acts of the landlord must clearly indicate an intention on his part that the tenant shall no longer have the beneficial enjoyment of the premises, and such acts must be of a grave and permanent character, which in their nature deprive the tenant of the beneficial enjoyment of the premises. It was held that there was no evidence in the record showing any such permanent condition but rather the contrary and the judgment was reversed with a finding of fact.

The evidence in the case a,t bar shows that the condition of which the tenant complained was a temporary one. It was entirely remedied just after the tenant left the premises. The evidence to that effect was admissible on the question of whether the condition complained of was a permanent one.

While the question of whether the landlord’s acts or omissions do or do not amount to an eviction must be left to the jury, if the character of those acts or omissions is ambiguous, it is not error to instruct the jury to find the issues for the landlord where there is no evidence in the record showing or tending to show any intention on the part of the landlord to interfere with the tenant’s possession.

In our opinion the evidence in this record as to the landlord’s actions involves no ambiguity. Not only is there no evidence • showing or tending to show any wrongful act or omission of duty on the part of the landlord showing any intention on his part that the tenant’s possession or enjoyment of the premises should be interfered with, but such evidence as there is on this point is to the contrary.

For the reasons stated we are of the opinion that the court did not err in instructing the jury to find the issues for the plaintiff and therefore the judgment of the Circuit Court is affirmed.

'Affirmed.


author: Mr. Justice O’Connor

text:
    Nellie King, Appellee, v. Nels G. Swanson, Appellant.
    Gen. No. 24,585.
    1. Municipal corporations, § 1038

      —liability of individual using sidewalk in personal business for dangerous condition created. One using a sidewalk in the conduct of his personal business is responsible for a dangerous condition created thereby.
    2. Municipal corporations, § 879*—to whom city streets belong. City streets, which include the sidewalks, from side to side and from end to end belong to the people, and they primarily have the right to the free and unobstructed use thereof.
    3. Municipal corporations, § 918*—right of abutter to use sidewalk for loading. Abutters upon the street may use the sidewalk in front of their premises for the purpose of loading and unloading goods or merchandise, and may thus temporarily obstruct the street if it is reasonably necessary to do so.
    4. Municipal corporations, § 918*—what is’ duty of abutter using sidewalk for loading and unloading goods. Where an abutter upon the street uses the sidewalk for loading and unloading goods, it is his duty to see that such use does not" make the sidewalk dangerous for persons rightfully using it.
    5. Municipal corporations, § 1098*—when judgment against abutter for personal injuries sustained by person falling on icy sidewalk mil not be disturbed. In an action against one to recover for personal injuries received through slipping and falling on ice on the sidewalk in front of defendant’s premises, where the evidence tends to show that while there was more or less ice on all of the sidewalk, there was a space 4 feet wide from defendant’s premises to the curb which was much more slippery than the other portions of the sidewalk, and that this condition was caused by the dragging of large baskets of clothes between defendant’s laundry and the curb, a judgment for plaintiff will not be disturbed.
    6. Trial—when counsel for plaintiff in action for personal injuries may state that witness had been sent for. In an action to recover for personal injuries, it is not error for plaintiff’s counsel to state that they had wired and sent money to one whom they desired as a witness, where plaintiff had testified that such witness had picked her up from the sidewalk after she fell and received the injuries.
    7. Appeal and error, § 1538

      —when omission in instruction is not .ground for reversal. While, in an action to recover for personal injuries, it is error to instruct the jury that plaintiff was required to exercise ordinary care for her own safety, and if they believed that she was exercising such ordinary care, she could recover, since such instruction does not tell the jury that they must believe these facts from the evidence, the omission is not ground, for reversal where the issues were simple, easily understood and the jury were fully instructed on the point in other instructions.
    8. Instructions, § 14*—rnecessity of repeating statement as to duty to find facts from evidence. It is not necessary to tell the jury several times in the same instruction that they must find the facts from the evidence.
    9. New trial, § 69*—what newly discovered evidence warrants granting of new trial. Newly discovered evidence such as will warrant the granting of a new trial must be positive and conclusive and capable of definitely settling the controversy.
    10. New trial, § 102*—when motion for new trial on ground of newly discovered evidence is properly denied. A motion of defendant to grant a new trial in an action to recover for personal injuries on the ground of newly discovered evidence is properly denied where the affidavit submitted shows that the evidence merely contradicts the testimony of plaintiff and of one of defendant’s witnesses as to where the accident occurred.
    Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 31, 1919.
    O. D. Olson, for appellant.
    Benjamin B. Kahane, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plantiff brought suit against defendant to recover damages for personal injuries claimed to have been received by her in falling on the sidewalk in front of defendant’s premises. There was a verdict and judgment in her favor for $1,000, to reverse which defendant appeals.

The evidence on behalf of plaintiff tended to show that between nine and nine-thirty o’clock in the evening of December 15, the plaintiff was walking along the sidewalk in front of defendant’s premises, 156 W. Oak street, Chicago, when she slipped and fell on the icy walk, receiving serious and permanent injuries; that there was more or less snow and ice on all of the sidewalk, but that a strip of the walk about 4 feet in width extending from the curb to defendant’s place of business was much more slippery than other portions of the sidewalk; that defendant operated a laundry and large baskets filled with clothing were dragged across the sidewalk which caused the strip about 4 feet in width to be very slippery and dangerous. There was evidence introduced on behalf of defendant that tended to show he kept the sidewalk free and clear of ice in front of his property, and that plaintiff fell, not in front of his property, but a short distance from it. No question .is made about the nature or seriousness of plaintiff’s injuries nor as to. the amount of the judgment.

Defendant contends the declaration does not allege nor does the evidence prove any cause of action against him, for the reason that it is well-settled law that defendant “is not liable for accidents due"to a mere icy or slippery condition of the sidewalk” and that the condition of the sidewalk at the time was not an obstruction to travel, and, therefore, no liability was alleged or shown. In support of this contention defendant cites, among others, City of Chicago v. McGiven, 78 Ill. 347; Metzger v. City of Chicago, 103 Ill. App. 605; Miklaszewski v. City of Chicago, 194 Ill. App. 614. In the McGiven case, it was held that the city was not liable for injuries received by plaintiff in slipping on a piece of heavy plate glass in the surface of the sidewalk, there being evidence' that no accident would have occurred had not the glass been covered with snow. The court there said (p. 352): “The mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not such a defect as will make the city liable for damages occasioned thereby. ’ ’ In the Metzger case, it appeared that the weather was severely cold and that a thin coating of ice formed on a part of the sidewalk, caused by an overflow of water from a fountain maintained by the city, and a light snow had fallen. It was held that no recovery could be had for injuries occasioned by slipping on the ice. The court said (p. 607): “Nor do we think it (the city) can be held liable where water is splashed over or escapes from a drinking fountain on the edge of a walk—an entirely proper thing for a city to maintain—unless it should be made to appear that the city has been negligent in the construction or operation of such fountain, or had allowed ice to remain where it endangered passers-by after notice of the existence of such a danger.” The court there further held that there was no evidence tending to show notice to the city. In the Miklaszewski case, it was held the plaintiff could not recover for personal injuries received by falling on a sHppery sidewalk, the condition of the sidewalk having been caused by the city piling snow in a vacant lot, the snow having later melted, ran down on the sidewalk and froze, and it was there said that no recovery could be had where the slipperiness of the sidewalk was caused by the presence of ice or snow whether due to artificial or natural causes.

We think these cases are not in point. In the instant case the injury was brought about by reason of the fact that defendant used the sidewalk in the conduct of his personal business, and such being the case he was responsible for the dangerous condition which he created. Garibaldi & Cuneo v. O’Connor, 112 Ill. App. 53; same case 210 Ill. 284; Mullins v. Siegel Cooper Co., 95 N. Y. App. Div. 234; Grinage v. McGlincky, 62 Pa. Sup. Ct. 294; Reedy v. St. Louis Brewing Ass’n, 161 Mo. 523. The streets of a city from side to side and from end to end belong to the people, and they primarily have the right to the free and unobstructed use thereof. The sidewalks are part of the street. It is true that abutters upon the street may use the sidewalk in front of their premises for the purpose of loading and unloading goods or merchandise, and may thus temporarily obstruct the use of the street, providing it is reasonably necessary to do so. But where an abutter does so, it is his duty to see that such use does not make the sidewalk dangerous for persons rightfully using it. In the instant case, the evidence tended to show and the jury have found that the use made of the sidewalk by the defendant in the conduct of his personal business rendered the sidewalk unsafe and, therefore, he is responsible.

Defendant also argues that the preponderance of the evidence does not show that the accident took place in front of his property and, since it was claimed that he used the sidewalk only in front of his property, the verdict is wrong. This court is not at all concerned with the question of the preponderance of the evidence. That question is important only in the trial court. In this court the verdict should not be set aside unless it is against the manifest weight of the evidence. It would serve no useful purpose to discuss the evidence in this record, but after a careful consideration of it we do not feel warranted in disturbing the verdict of the jury.

Defendant further complains of the statement made by counsel for plaintiff on the trial of the case to the effect that they had wired and sent $50 to one Adams whom they desired as a witness. Plaintiff had testified that Adams picked her up after she fell on the sidewalk, and in these circumstances it was proper for her counsel to account for his absence, for if this were not done, defendant’s counsel could mention this fact in his argument to the jury.

Complaint is made to the giving of instructions Nos. 1, 2, 3 and 5 on behalf of plaintiff. Instruction No. 1 told the jury that the burden was on the plaintiff to prove her case by a preponderance of the evidence, and has been approved many times. The, complaint to instruction No. 2 is that it told the jury plaintiff was required to exercise ordinary care for her own safety, and if they believed that she was exercising such ordinary care, she could recover. It did not tell the jury that they must believe those facts from the evidence. It was error to omit this element but the issues were very simple, easily understood, and the jury were fully instructed on this point in other instructions. We think the jury were in no way misled, nor was the defendant in any way injured. Complaint to instruction No. 3 is that it tells the jury in the first part “if they find from the evidence,” and in the latter part this is omitted. We think it is not necessary in the same instruction to tell the jury several times that they must find the facts from the evidence. The fifth instruction was on the question of the amount of damages, if any. It was not improper. Chicago & M. Elec. Ry. Co. v. Ullrich, 213 Ill. 170. We think the jury were fully instructed and clearly understood the issues, which were very simple.

It is finally urged that the court should have granted a new trial on the ground of newly discovered evidence. The affidavit of Adams was submitted on the motion for a new trial. He was the same person plaintiff sought to have present and testify in her behalf. In the affidavit it is stated plaintiff did not fall in front of defendant’s property, but that the accident occurred in front of 164 West Oak street. ít has long been established law that newly discovered evidence such as will warrant the granting of a new trial must be positive and conclusive and capable of definitely settling the controversy. Martin v. Ehrenfels, 24 Ill. 187. The affidavit simply contradicted the testimony of plaintiff and also the testimony of the witness Sundstrom, who testified on behalf of defendant as to where the accident occurred. Other matters appear from the affidavit and from a letter which Adams wrote plaintiff, but these would render anything he would testify to very untrustworthy. We think the court acted in accordance with the established law in denying the motion for á new trial. The judgment of the Circuit Court of Cook county is affirmed.

Judgment affirmed.


text:
    Sarah J. Thompson, Appellee, v. Jacob L. Crains et al., Appellants.
    Gen. No. 24,612.
    1. Taxation, § 188

      —construction of word “year.” . In view, Hurd’s Rev. St. ch. 131, sec. 1 (J. & A. 11102), defining the word “year,” that term, as used in section 8 of the Revenue Act of 1898 (J. & A. f 9523), is to be construed as meaning a calendar year.
    2. Vendos and purchaser, § 168*—how taxes agreed to he prorated will he divided. Where it is agreed between a vendor and purchaser that the taxes shall be prorated, the vendor is chargeable with the taxes from January 1 until the date of the sale and the purchaser with those accruing from the latter date.
    3. Deeds, § 196*—right to show assumption of incumbrance was part of consideration. The fact that the warranty deed by which property was conveyed contains no condition that the conveyance is subject to the assumption of an incumbrance, and makes no reference to any incumbrance on the property, does not prevent the introduction of evidence to show that the assumption was a part of the consideration for the transfer.
    4. Deeds, § 196*—right to introduce evidence showing real consideration. It is always proper to introduce evidence showing the real consideration for a transfer, of property.
    5. Tender, § 4*—when tender in form of certified Chech is not insufficient. A tender in the form of a certified check is not rendered insufficient by reason of the fact that it recited that it was in payment of all amounts due to that date, where the court finds, on a suit to enforce the demand, that the amount so tendered was the amount due.
    6. Mortgages—when tender sufficiently shown to stop accruing of interest. On a suit to foreclose a mortgage, where it appears that the proper amount was tendered before the first suit involving the same mortgage was filed; that tender was again made in the plea filed therein; that on the hearing the money was again tendered in open court, but in each instance .the tender was refused; that after the dismissal of that suit the proper tender was again made but refused and thereupon defendant stated the money was ready at any time complainant should change her mind, and the only evidence regarding defendant’s not continuing to keep the tender in. readiness was that, after complainant had refused the certified check tendered, defendant had cashed it, it was held that the tender and that it was held by defendant subject to complainant’s call were sufficiently shown to stop the accruing of interest.
    7. Evidence, § 34

      —presumption of continuance of condition. It is a rule of law that where a condition is once shown to exist, it continues until the contrary is shown.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded with directions.
    Opinion filed December 31, 1919.
    Jacob Levy and Josiah Burnham, for appellants.
    Alfred W. Bays, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal defendants seek to reverse a decree in a suit filed to foreclose a mortgage. Complainant has assigned cross errors.

The record discloses that on August 24, 1914, complainant, Sarah J. Thompson, and her husband conveyed the premises in question - by warranty deed to the defendant, Jacob L. Crains. There was no mention in the deed of any incumbrance on the property except certain taxes and assessments. The consideration recited in the deed was $10. From the evidence, however, it appeared that the consideration was $19,000, $5,000 of which was paid in cash, the assumption of an incumbrance of $10,000 and a purchase money mortgage for $4,000. The $4,000 was evidenced by four principal notes of $1,000 each, due 6, 12, 18 and 24 months after date with interest at 6 per cent per annum until due and 7 per cent after maturity. The several instalments of interest were evidenced by interest notes or coupons. When the property was transferred it was agreed that the taxes should be prorated. And' since the amount of the taxes could not then be ascertained, the defendant, Crains, was to pay them in the spring of 1915 and the matter was then to be adjusted. February 24, 1915, when the first note for $1,000 and four interest coupons aggregating $120 came due, the defendant paid the principal note, and at that time the amount of the taxes was as yet unaseertainable, and it was agreed that these interest notes be held in abeyance until the taxes were paid. Afterwards, in accordance with this understanding, defendant paid the taxes amounting to $226.93, and then took up with complainant the matter of prorating them. The defendant took the position that he was entitled to be credited with that portion of the taxes from January 1,1914, until the date of the sale, August 24, 1914. On the other hand, the complainant’s contention was that credit should only be given for that portion of the taxes from April 1, 1914, until the date of the sale. They being unable to agree, nothing further was done until August 24, 1915, when another note for $1,000 and three interest coupons came due. The defendant then tendered the amount less the deduction which he claimed should be allowed him for the proportionate share of the taxes. The tender was made in the form of a certified check and bore an indorsement to the effect that it was in full of all amounts due up to and including August 24, 1915. Complainant refused to accept the check and on August 27,1915, returned it with a letter, stating, “It is our intention to foreclose on this mortgage as soon as the papers can be printed.” A few days thereafter a bill to foreclose the mortgage was filed. It was alleged that on account of the default complainant had elected to declare the entire indebtedness due in accordance with the terms of the trust deed. To this bill defendant filed a plea setting up the tender, and that defendant was still ready, able and willing to pay, and offering to pay the amount which should be found due by the court. The plea after argument was held good, a replication was filed and the matter went to hearing before the chancellor. After evidence had been introduced, complainant apparently seeing the case was going against him, on October 17, 1916, the following order was entered: “On motion of solicitor for complainant it is ordered that said suit be dismissed at complainant’s motion and at complainant’s costs.” Prior to this dismissal defendant again tendered in open court the amount due which was again refused. In the meantime the entire indebtedness had by its terms become due, and 10 days after the dismissal of the foreclosure suit, viz., October 27, 1916, the defendant tendered complainant $3,225, which was refused, and immediately thereafter on the same day tendered complainant $3,275, which was likewise refused. The only reason for the refusal of the several tenders made was thato defendant was deducting too much on account of the prorating of the taxes, and it is conceded that if the defendant’s method of prorating the taxes, viz., from January 1,191.4, to August 24, 1914, is the correct method, then the tender made August 24, 1915, was sufficient, and if it stopped the accruing of interest after that date on the amount tendered, then the tender made October 27, 1916, was sufficient to cover the indebtedness due.

The tender of October 27,1916, having been refused, complainant on November 23, following, filed the present bill. Defendant answered denying any default and setting up the several tenders of payment.- After-wards he set up that complainant had warranted the premises' to be free and clear of incumbrance when, as a matter of fact, there was an incumbrance on the date of the transfer of $10,000, which defendant was obliged to pay and that this was largely in excess of complainant’s demand and, therefore, complainant should not be permitted to foreclose until the incumbrance of $10,000 had been paid off by complainant. The answer further set up the prior bill and the dismissal thereof ¿fiter hearing, claiming that this dismissal was res adjudicata. The case was referred to a master who found that the taxes should be prorated as contended for by defendant; that the tender made August 24, 1915, was the correct amount; that all the tenders made were sufficient; and, that the dismissal of the first suit was res judicata. Objections were filed by both sides which were overruled and they were after-wards ordered to stand as exceptions, some of which were sustained and some overruled by the chancellor who held that defendant’s contention of the method of prorating the taxes was correct; that the tender made August 24, 1915, was the correct amount. But that this tender had not been kept good and, therefore, this amount being overdue from that time drew interest at the rate of. 7 per cent; that when the tender was made October. 27, 1916, it was insufficient in amount for the reason that it did not include this interest. No solicitor’s fees were allowed complainant and it was ordered that in default of payment the property be sold.

Complainant contends that the decree is wrong in allowing the defendant credit for that portion of the taxes for the year 1914 from January 1 to August 24, the date of the sale, claiming that defendant was entitled only to that portion from April 1, 1914, until the date of the sale. In support of this it is said that section 8 of the Revenue Act of 1898 (J. & A. If 9523) provides that the owner of property on the 1st day of April in any year shall be liable for the taxes for that year, and that the tax year, therefore, should begin on April 1 and end on March 31, the following year. Section 8 of the Revenue Act of 1898 provides that property shall be listed and assessed with reference to ownership, amount, kind and value “on the first day of April in the year for which the property is required to be listed. * * * The owner of property on the first day of April in any year shall be liable for the taxes of that year.” Section 1, ch. 131, Rev. St. ( J. & A. If 11102) provides that in the construction of all statutes the following rule shall be observed unless repugnant to the context of the statute: “Tenth. The word ‘month’ shall mean a calendar month, and the word ‘year’-a calendar year, unless otherwise expressed.” From this we think it dear that the word “year” as used in the Revenue Act quoted means a calendar year. Taxes are always spoken of as, for instance, for the year 1914. If the complainant’s contention was correct, viz., that the year began on the 1st of April and terminated on the 31st of the following March, the taxes for that period could not properly be designated for the year 1914, but should be designated taxes for 1914 and 1915. The method adopted by the chancellor for prorating the taxes is correct.

Since the only effect of our holding that the dismissal of the first foreclosure suit was res ad judicata of the amount due August 24, 1915, and since there was no dispute in this regard except as to the matter of taxes, and since we hold that defendant’s contention in this regard was correct, it becomes unnecessary to pass on the effect of the dismissal of the first suit.

Defendant insists that it was error to- admit, evidence tending to show that he purchased the property subject to an incumbrance of $10,000, when there was no such condition in the warranty deed, and since the deed made no reference to any incumbrance, complainant should have been required to remove this incumbrance before she could foreclose the mortgage. There was no question but that this incumbrance was on the property at the- time of the purchase and that it was part of the consideration. It is always proper to introduce evidence showing what the real consideration for the transfer was.

We having held .with the defendant in the matter of payment of taxes, there is no dispute but that the amount of the two tenders was sufficient, and if kept good would defeat the complainant, except complainant argues that the first tender was insufficient in that the indorsement on the certified check required complainant to execute a full release in order to collect on the check. The only condition recited on the check was that it was in payment of all amounts due to that date, and there being no dispute in this regard, the condition did not affect the tender. It was sufficient. Complainant, however, contends that the tender was not kept good for ihe reason, as she puts it, that the check of August 23, 1915, was cashed by defendant and that “there is absolutely no attempt on the part of appellants to show what disposition whs made of the funds of either of the tenders after the same were made,” and.that a tender to stop the accruing of interest must be kept good. Counsel’s position seems to be that where a tender is made and is sufficient in all respects and has been refused without cause, yet when suit is brought to enforce this same demand the burden of proof is on the defendant not only, to show the tender, but that it was kept good and that the money was always held by defendant subject to the call of complainant.

In support of this, complainant cites Crain v. McGoon, 86 Ill. 431; Aulger v. Clay, 109 Ill. 487; Rankin v. Rankin, 216 Ill. 132, and Healy v. Protection Mut. Fire Ins. Co., 213 Ill. 99. We have examined all of these authorities and a great many others not cited by either side, and have given careful consideration to the question. But we have found no case that goes to the extent contended for by complainant, nor do we think this contention is based on sound reason or straight thinking. Neither is it in accord with the plainest principles of fair dealing and justice, when it is considered that the tender of August 24,1915, was in all respects sufficient to meet every requirement of the law and was without justification refused. The notes then coming due drew interest until maturity at the rate of 6 per cent and after maturity at 7 per cent, and after complainant wrongfully refused to accept this tender, she is permitted by the decree to take advantage of her own wrong and compel the defendant to pay 7 per cent after that date. This most certainly is not according to equity and fair dealing. Moreover, in addition to the tender of this amount, the plea after-wards filed again offered to pay whatever amount was due at any time, and several months afterwards during the hearing on the plea the money was again tendered in open court. Later after the dismissal of that suit, defendant again made tender of all that was due, but again without any justification acceptance was refused. And then the evidence shows, defendant and his counsel stated that the money was at the disposal of the complainant at any time should she change her mind. This whole litigation was brought about by the wrongful act of the complainant in the wrongful claim about the division of the taxes, and this wrongful act is persisted in even after the trial judge had held the plea setting up the division of' taxes as contended for by defendant was correct and the tender sufficient, and there is no dispute but that the plea could be proved. This attitude of complainant was further persisted in when the tender was made in October, 1916, and afterwards on the trial of this ease and is still persisted in in this court. It would be a travesty on justice to maintain that there was a default in payment after the tender of August, 1915, and that from that date complainant was entitled to 7 per cent interest on account of that default, and to saddle the cost of this proceeding upon the defendant on the mere pretext that defendant did not affirmatively show that during all the time after the various tenders the money was always kept subject to the order of the complainant. Especially is this true because the complainant in this ease was in all these matters represented by counsel and on the trial counsel testified, that when the question first came up about the division of the taxes there was a difference of opinion as to whether the taxes should be prorated as of January 1 or April 1, and that “I was not dead sure myself.”

In the Crain case, the indebtedness was due December 10, 1856. Somé payments of interest had been made and on March 1, 1863, payment was tendered in greenbacks but refused. Afterwards the person making the tender spent the money for other purposes. Later the owner of the indebtedness changed his mind and called for the money due but was told that he could not be paid as the matter must go through the Probate Court. The court said the tender should have been in gold and that under the common law if the tender was made on the date and at the time and place stipulated and not accepted, the land was freed from the lien; that if it was not paid at the time it was due, the land was forfeited and, under these circumstances where the tender was made after it was due, it would be very harsh td hold that the creditor who was not in a position to figure out the exact amount due must lose his lien on the property or accept the tender.

In fhe Aulger case, tender was made and refused, and afterwards the creditor demanded the money which the debtor then refused to pay until the title could be cléared. Afterwards the money was used by the debtor.

In the Rankin case, it was held that where • the creditor had received the use of the land in controversy and the purchase price is not tendered into court, he should pay interest thereon on decreeing him the right to purchase the land.

In the Eealy case, tender was made after the suit was brought, and it was held that a sufficient amount had not been tendered. We think it clear that none of these cases sustain complainant’s contention. Bensley v. Bartholf, 137 Ill. App. 420, was a proceeding to foreclose a mortgage. Prior to the suit the debtor tendered the amount due, which was refused. It was held that the decree awarding foreclosure was wrong and that the suit would not lie. The court there said (p. 427): “In our opinion, appellant did all that she was required to do under the law in the matter of the payment of interest. Gorham v. Farson, 119 Ill. 442; Ventres v. Cobb, 105 Ill. 42; Webster v. French, 11 Ill. 278. She could do nothing more than tender the interest due. This she did, and having made the tender, she was required to do nothing more until a court of equity should order it brought into court. Webster v. French. Appellee had no .right, under the evidence, to declare a default and the whole indebtedness due and file this bill to foreclose. He has no standing in equity upon the record before us.”

The Webster case, was a bill filed to enforce a conveyance of the Quincy House, a hotel located in the City of Quincy, which had been sold at auction. Tender was made of the amount of the bid but the conveyance was refused on the ground that there was a higher bid. It was objected that the bill would not lie because the money had not been tendered in court. The court there by Mr. Justice Catón discusses various authorities on that point and said (p. 278): “The result of my examination of this subject clearly shows that the court of Chancery is not bound down by any fixed rule on this subject, by which it will allow the substantial ends of justice to be perverted or defeated by the omission of an unimportant or useless act, which nothing but the merest technicality could require. The money may, at any time, be ordered to be brought into court, whenever the rights of the opposite party may require it; but while he is insisting that the money is not his, and that he is not bound to accept it, it would seem to be a matter of no great consequence to bim whether the money is in the custody of the court or not. The court possesses a liberal and enlarged discretion on this subject, by the proper exercise of which the rights of all parties may be protected.” In that case the court quoted from Washburn v. Dewey, 17 Vt. 92. There the defendant objected that “though the oratrix tendered the money properly before thq time specified, yet the tender was not kept and brought into court when the bill was entered. ’ ’ The court said: “The excuses for not performing this contract are, if not frivolous, at least very unsatisfactory. The oratrix, having tendered to the defendant the money for the payment of the note, had nothing further to do until the defendant manifested his willingness to comply with his obligation, and demanded the money. There is no pretense, therefore, for saying the ‘tender was not kept good. ’ ”

Rohn v. Heidrich, 174 Ill. App. 423, was a bill to foreclose a mortgage. Before the bill was filed, tender of the amount due was made but was refused on the ground that the bill to foreclose had been prepared and $50 additional was demanded for solicitor’s fees. The master to whom the cause was referred found that the tender “was sufficient and stopped the running of interest” but no solicitor’s fees should be allowed. The chancellor did not sustain this position but awarded the solicitor $100. The court after stating that the only question to be determined was the sufficiency of the tender said; “The rules in respect to tender are much more liberal and flexible in equity than at law.” It was held that the tender was sufficient.

Glos v. Ambler, 218 Ill. 269, was a bill to set aside a tax deed. The amount due to the owner of the tax title was tendered before the suit was started but was refused. Appellee offered to pay the amount found due. It was afterwards paid into court. It was said, p. 274: “This was sufficient to stop interest on the amount, and also to render appellants liable for costs. (Webster v. French, 11 Ill. 254; Board of Sup’rs of Livingston Co. v. Henneberry, 41 Ill. 179.) ”

Under these authorities and considering the fact that the proper amount was tendered in August, 1915, before the first suit was filed, that tender was again made in the plea filed in that case, that on the hearing the money was again tendered in open court but each of these tenders refused, that after the dismissal of that suit the proper tender was again made but refused and thereupon the defendant stated that the money was ready at any time should the complainant change her mind, we think it would be most unjust and inequitable to permit the decree to stand. Moreover, there is mo showing in that case that the money tendered was afterwards spent by the defendant. The only evidence in this regard is that after the refusal of the certified check the defendant cashed it. This would tend to indicate that the defendant had the money rather than that he had spent it. It is a rule of law that where a condition is once shown to exist, it continues until the contrary is shown. In the instant case, the evidence shows the defendant had the money, and nothing to the contrary appearing, it should be presumed that he continued to have it. The complainant’s position throughout this case was wrong, and she should not be permitted in a court of equity \o take advantage of her own wrong to work an injustice on the defendant.

The decree of the Superior Court of Cook county is reversed and remanded with directions to dismiss the bill for want of equity at complainant’s costs.

Reversed and remanded with directions,


author: Mr. Presiding Justice McSurely

text:
    Paulina Bross, Defendant in Error, v. Gordon A. Ramsay, Administrator, Plaintiff in Error.
    Gen. No. 25,100.
    1. Appeal and error, § 800

      —when sufficiency of evidence to support verdict cannot be considered. The question of the sufficiency of evidence to support a verdict cannot be considered where no motion for a new trial appears in the bill of exceptions, which is the only place where such a motion can properly appear.
    . 2. Contracts, § 335*—when recovery may be had on quantum meruit on failure to perform contract to make bequests. In an action to recover for board and nursing rendered to a person who had promised to pay for the services by bequeathing the home in which he lived to the plaintiff, where it appeared that the deceased by a later will revoking a former will failed in his promise to the plaintiff, a contention that the plaintiff could not recover on a quantum meruit, there being an express contract as to the manner of payment, could not be sustained, as the failure of the deceased to keep his obligation to compensate the plaintiff through his will entitled the plaintiff in equity and justice to recovery on a quantum meruit.

    3. Appeal and error, § 801*—when suggestion that evidence varies from bill of particulars is not properly before Appellate Court. A suggestion that the evidence varies from the bill of particulars is not properly before the court on appeal when the bill of particulars is not preserved in the bill of exceptions, as it should be.
    4. Witnesses, § 41*—when husband not incompetent to testify in action by wife. In an action to recover payment for board and nursing rendered a person who agreed to compensate the plaintiff through his will, where the agreement contemplated that the compensation should be the exclusive property of the plaintiff, the husband of the plaintiff was not incompetent to testify as to the transaction, being within the exception of section 5 of the Statute as to Evidence and Depositions (J. & A. If 5522).
    5. Contracts, § 377*—when evidence of both wills made by deceased is admissible in action for failure to make bequest. In an action to recover payment for board and nursing rendered a person who agreed to compensate the plaintiff through his will, where it appeared that the deceased made one will providing for the plaintiff and in a subsequent will omitted to make such provision, evidence of both wills was properly admitted, as the first will tended to show that the services were not gratuitous, and were rendered under a promise of payment, and the second will tended to show that the promise had failed, leaving the plaintiff with the right to recover the reasonable value! of the services.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthiia, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed January 12, 1920.
    Pearson & Herrick, for plaintiff in error.
    A. G-. Dicus, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit, filing a declaration consisting of the common counts and two special counts, by which she sought payment for board and nursing of Rudolph Hess, now deceased. Upon trial she had verdict of a jury and judgment for $1,400, which the defendant says should be reversed.

No motion for a new trial appears in the bill of exceptions, which is the only place where such a motion properly can appear. (Smith v. Kahill, 17 Ill. 67; Deitrich v. Waldron, 90 Ill. 115; Butt v. Lee, 27 Ill. App. 419.) Hence we cannot consider the sufficiency of the evidence to support the verdict. (Metropolitan Discount Co. v. Pitsch, 208 Ill. App. 407.)

The evidence tended to show that for the services rendered to Hess he promised to pay plaintiff by leaving her as a bequest in his will the home in which he lived, and such a will was made. Subsequently Hess made another will, in which, for some reason which does not appear, he failed in his promise to plaintiff and left her nothing. Defendant contends that under such circumstances, there being an express contract as to the manner of "payment, plaintiff cannot recover on a, quantum meruit. Ho reported eases are presented supporting this contention. In Schouler on Wills (5th Ed.), vol. 1, sec. 453, it is said:

“If the aged or feeble decedent makes no will, or makes a different will from what was agreed upon, or revokes a bequest which was founded upon his own promise, the claim may be presented for settlement, to the whole or partial absorption of the estate, as the case may be. * * * Equity under circumstances of hardship and injustice to innocent third parties may refuse specific performance and remit the party to a creditor’s action at law, quantum meruit.”

This is supported by many citations. To the same effect also are Martin v. Wright’s Adm’rs, 13 Wend. (N. Y.) 460; Robinson v. Raynor, 28 N. Y. 494; Stone v. Todd, 49 N. J. L. 274, 8 Atl. 300. We see no reason, in justice why plaintiff may not recover on a quantum meruit when Hess failed to keep his obligation .to compensate through his will.

There is no merit in the suggestion that the evidence varies from the bill of particulars. However, this point is not properly before this court, as the bill of particulars is not preserved in the biff of exceptions, where it should be. (Star Brewery v. Farnsworth, 172 Ill. 247; Peterson v. Mayer, 142 Ill. App. 257.)

It was not error for the husband of plaintiff to testify. The agreement between Hess and plaintiff for compensation contemplated that it should be her exclusive property. This made the husband competent under the exception of section 5, Statute on Evidence and Depositions (J. & A. 5522).

It was proper to admit evidence concerning both wills. The first tended to show that the services were not gratuitous but were rendered under a promise of payment. The second tended to show that that promise had failed, leaving plaintiff her right to recover what the services were reasonably worth.

What we have said as to a plaintiff’s right under the law supports the propriety of the instructions of the' court to this effect, .

There was no error in refusing to give the instructions presented by the defendant, as suggested in the brief. As we have said above, the evidence shows that the agreement was made with the plaintiff and not with her husband. He makes no claim for any part of the compensation.

The points made in defense are wholly technical in character and make appropriate the axiom that a technical reply is sufficient for a technical attack.

The trial resulted in substantial justice. Plaintiff is entitled to compensation and we cannot accord the technical matters of the defense sufficient weight to require a reversal. Therefore the judgment is affirmed.

Affirmed.


text:
    Elhanan W. Colby, Administrator, Defendant in Error, v. Chicago Junction Railway Company, Plaintiff in Error.
    Gen. No. 25,181.
    1. Railroads, § 519

      —what protection is required as to children playing about cars. A railroad company is not required to fence and guard its yards and tracks so securely as to prevent entrance by children, and need not provide greater protection to children playing about its cars than is owed to ordinary trespassers.
    2. Railroads, § 519*—what is duty to minors trespassing on right of way. The duty which a railroad company owes to minors trespassing upon its right of way is to refrain from willingly and wantonly inflicting injury.
    3. Railroads, § 519*—steel coal car with holes or openings in bottom is not attractive nuisance. A steel railroad car of the ordinary type used for carrying coal which has holes or openings in the bottom of the car, furnished with steel lids fitted with hinges, so that such lids may be raised and fastened against the inside of the car, is not an attractive nuisance, since the car itself cannot be claimed to be attractive, and the holes or lids covering the same are hidden from sight and may be discovered only by the exercise of considerable physical agility.
    4. Railroads, § 519

      —iron lid intended to cover holes in bottom, of steel coal car as not attractive nuisance. An appliance such as an iron lid intended to cover holes in the bottom of a steel railroad car used for carrying coal, which lid may be raised and fastened to the inside of the car by a hasp or pin, cannot be held to be a nuisance attractive to children, as such an appliance can have no more attraction than an ordinary door.
    5. Railroads, § 567*—when declaration in action for death of 8-year-old child hilled by falling of lid in bottom, of coal car is demurrable. A declaration in an action for the death of an 8-year-old child who was killed while trespassing on railroad property, and while in an ordinary steel railroad car used for carrying coal, by the falling of a large lid or door covering a hole or opening in the floor of said car, is demurrable as failing to present any legal liability on the part of the railroad company, neither the car nor the lid being an attractive nuisance.
    Dever, J., dissenting.
    Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and judgment of nil capiat.

    Opinion filed January 12, 1920.
    Winston, Strawn & Shaw, for plaintiff in error; John D. Black, of counsel.
    S. P. Douthart and Fred C. Smith, for defendant in error.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendant seels by. this writ of error to have reversed a judgment against it for $2,500, in an action brought for the death of Wladyslaw Nowakowski, a minor, by the alleged wrongful act of the defendant in maintaining an attractive nuisance.

Plaintiff filed an amended declaration in one count charging that on May 20, 1914, the defendant was a railroad corporation operating a certain railroad yard for storing railroad cars and possessing certain freight cars upon certain tracks near 23rd and Fox streets in Chicago; that the yard and tracks were in a populous part of Chicag’o, where many people lived, and the children were in the habit of playing upon the streets and in the said yard and upon the railroad tracks and in and upon the cars, which the defendant had known for a long time; that on the day in question there was in the yard a certain freight car constructed of iron and which had holes or openings in the bottom of the car which were furnished with lids or covers that would lower so as to close said openings, the lids being of steel and of a weight of 300 pounds and of the width and length of 4 feet, and fitted with hinges so that when raised the lids would stand against the inner side of the car and were there held in position by latches or pins, and when raised would leave the hole in the bottom of the car so that it would be and was a nuisance and dangerous to the lives. of children of tender years who might be attracted thereto, and that it was an attractive nuisance; that it caused children of tender years to be attracted thereto and to play therewith, and to climb up into and go down out of said car through the openings, all of which the defendant knew, or by the exercise of reasonable care could have known; that before and at’ the time in question the said lids or covers had been raised up and were held in position by pins which could easily be pulled out by a child of tender years, and thereby cause the lids or covers to fall upon the bottom of the car; that it was the duty of the defendant to have the yard, railroad tracks, and cars securely fenced, inclosed and guarded so as to prevent and hinder children of tender years from playing upon said tracks .and upon said cars and to have a competent watchman to guard said yard, cars and tracks, and to prevent children of tender years from playing- upon said tracks and cars, and to have said lids or covers, when raised, securely locked, fastened or secured, so that children of tender years could not unlatch or unlock the same and allow them to fall, and also to have said lids laid down on the bottom of the car and said openings closed. Yet the defendant negligently failed in its duty to have said yard and tracks securely fenced, inclosed or otherwise guarded, and failed to have said lids or covers when raised securely locked, fastened or guarded, so that children of tender years could not unlatch or unlock them and allow them to fall, and failed to have said lids laid down so as to close the opening in the bottom of the car, in consequence of which Wladyslaw Nowakowski, a child of 8 years, while exercising ordinary care and discretion for one of his age, intelligence, capacity and experience, was attracted to said dangerous nuisance and into said freight car, and while down on the floor of the car went into one of the openings in said floor, and another child of tender years, incapable of exercising ordinary care and discretion, unlocked or unfastened the lock or fastening of said lid, so that it fell upon Wladyslaw Nowakowski and he was killed.

With this declaration and as a part of it were filed five photographic exhibits which show various views of the car, the lids, and the latch or pin used to fasten the lids in a raised position.

To this declaration a general demurrer was filed which was overruled. The defendant elected to stand by the demurrer. The case was then submitted to the court for trial without a jury upon the question of assessment of damages, which were assessed at the sum of $2,500. Motions for a new trial and in arrest of judgment were made and overruled and judgment entered against the defendant.

The questions for determination are whether it was the duty of defendant to fence its tracks and ears at the point in question, and whether the car as described and photographed in the declaration comes within the doctrine of an attractive nuisance.

We know of no rule which requires a railroad company to fence and guard its yards, and tracks so securely as to prevent entrance by children. In many decisions the courts have recognized the physical impossibility of doing this and have held that the company is under no duty to provide protection to children playing about its cars greater than its duty to ordinary trespassers. (Chicago, R. I. & P. R. Co. v. Eininger, 114 Ill. 79; Chicago & A. R. Co. v. McLaughlin, 47 Ill. 265; Chicago, B. & Q. R. Co. v. Stumps, 55 Ill. 367; Gavin v. City of Chicago, 97 Ill. 66; Northwestern El. R. Co. v. O’Malley, 107 Ill. App. 599.)

The only duty which a railroad company owes to a minor trespassing upon its right of way is not willingly and wantonly to inflict an injury. (Wabash R. Co. v. Jones, 163 Ill. 167; Illinois Cent. R. Co. v. O’Connor, 189 Ill. 559; Illinois Cent. R. Co. v. Eicher, 202 Ill. 556; Bartlett v. Wabash R. Co., 220 Ill. 163.)

We do not believe that the doctrine of attractive nuisance can be extended to include the railroad car now under consideration. It is of the usual type of steel car, ordinarily carrying coal. From the photographs the distance from the' bottom of the car to the ground appears to be between 3 and 4 feet; the sides of the car extend upwards about 4 feet. It is therefore quite evident that the particular thing which caused the injury in question, namely, the lids, could not be seen by any one, whether a child or adult, until he had climbed up over the side of the car, a climb of approximately 8 feet. This brings this case within the rule stated in McDermott v. Burke, 256 Ill. 401, in which it was held that the dangerous thing must be so located as to attract children from a public street or a place where the public was in the habit of passing. It cannot be claimed there was anything attractive in law in the car itself, and the appliance which caused the injury was so hidden from sight as to be discovered only by the exercise of considerable physical agility.

We are further of the opinion that the appliance itself cannot properly be called an attractive nuisance. It was simply an iron lid intended to cover holes in the bottom of the car; when raised it was kept in place by an ordinary, hasp and pin. This could not reasonably have attractive qualities to children playing near by. It would have no more attraction than an ordinary door or other appliance in frequent use. We know of no case which has held such a simple appliance or anything like it to be an attractive nuisance, and we do not see how it could reasonably be so held. This also applies to the holes in the bottom of the car.

Upon the facts alleged in plaintiff’s declaration, the demurrer should have been sustained on the ground that no legal liability upon the defendant was presented.

The judgment of the trial court is reversed, and as no better case can be made for the plaintiff, judgment of nil capiat will be entered in this court.

Reversed and judgment of nil capiat.

Mr. Justice Dever dissents.