text:
    George A. Dailey, Appellee, v. Nellie Manuel (Thompson), Appellant.

      Contracts—fraudulent. In this action of assumpsit for breach of contract for the sale of land, the defense of alleged fraud held not proved.
    Appeal from the Circuit Court of Pike county; the Ho'n. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Anderson & Matthews, for appellant.
    William Mumford, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit for an alleged breach of a contract for the sale of certain real estate, situated in the Village of Hull, in Pike County, brought in the circuit court of that county, by the appellee against the appellant.

The declaration contains one count for breach of the following contract:

“ Springfield, Ill., Aug. 5, 1911.
‘1 This is to certify that I have this day sold to C. A. Dailey my place located in the village^ of Hull, Ill., for $425, four hundred and 25 dollars, and have this day received $10 dollars, on same, balance due in ten days, just as soon as deed is made out.
(Signed) Nellie Manuel.
As witnesses:
Edward Potter, L. J. Manuel.”

In addition to the special count, the common counts were set out in the declaration, to which a plea of the general issue was filed. The jury was waived by the parties and the cause heard by the court: Judgment was entered against the appellant, in favor of appellee, and the record is brought before us by appeal.

The principal question presented by appellant as ground for reversal is, that the contract between the appellant and appellee was fraudulent, against public policy and against the laws of this state, and that the breach of such a contract, procured under such circumstances, does not give rise to a cause of action in a court of law, and the appellant rests her whole defense upon the applicability of the doctrine thus announced to the facts in this case.

The uncontradicted facts appearing in the record are as follows: Appellant was the owner of the property involved in this suit, and desired to dispose of the same, and, after some conversation with appellee, appellant entered into the contract, in writing, as set forth in the declaration, and received at the time the payment of ten dollars as recited therein; that appellant afterward found a purchaser who would pay more for the property than the price stipulated in the contract with appellee, and went to appellee and sought to have him release her from her contract; that upon his refusal so to do she refused to make a conveyance to him, but sold and conveyed the prop erty to the Mississippi Eiver Power Company, for the sum of six hundred dollars.

It is true, as shown .by the record in this case, that a Mr. Fletcher had some telegraphic communication with appellant regarding the purchase of her property before the making of the contract in question; and it is also true that appellee had notice of such negotiations. But the evidence clearly discloses that appellee, before entering into. the contract, was informed by appellant that she had not sold the premises in question. After receiving this information from appellant, appellee proceeded with his negotiations and closed the contract in question. Subsequent developments show, upon the trial of the cause, that Mr. Fletcher abandoned his contention of a legal contract with appellant. We here quote the evidence of Mr. Fletcher from the record, as follows:

<£Q. You didn’t insist Mrs. Manuel keep this telegram arrangement with you, did you!
“A. I considered it useless and let the Power Company take it up.
“Q. Just abandoned it?
“A. After she would not accept there was nothing for me to do.
“Q. After she came to Hull, you simply abandoned the whole thing and let the Power Company take it up?
“A. All I could do.”

It further appeared from the evidence that Mr. Fletcher was acting for the Mississippi River Power Company. In support of this we quote from the ab-' struct of the evidence of Mr. Lease, as follows:

1 ‘ They asked me to buy the Nellie Manuel property. They wanted to know what it could be bought at. They told me to buy it anywhere to $500. They would pay $1 down on contract. I told them that would not go with her. She had to have money if she sold. I made arrangements that I would pay her and take the deed and hold it until they had money there to pay with; then I went to Charles Fletcher, my son-in-law, the operator, and I told him I wanted to buy this property and have the deed made to him until the Power Company was ready to pay. I went to Mr. Fletcher and instructed him to buy it and told him I would pay for it. I was acting for the Mississippi River Power Company. I did not have any conversation with Mr. Daily after I talked with Mr. Fletcher in regard to it. ’ ’

We think the evidence clearly shows the appellee was acting in good faith in the procurement of the contract. It seems to have been a race or contest between the appellee and the agents of the Mississippi River Power Company to see who could buy the property first.

The action of the court in passing upon the propositions of law was consistent, when viewed from the standpoint of the facts in this case.

Finding no reversible error in this record, and believing that the judgment is supported by the evidence, it is, therefore, affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    George Redman, Defendant in Error, v. The Shrader Drug Company, Plaintiff in Error.

      Pleading—when plea to merits may be made after plea in abatement. Where service is had upon an alleged agent of a corporation, a plea in abatement by the corporation reciting that it was a resident of a foreign state, had no place -of business in Illinois and no agent upon whom service could be legally had, brings the case within the Practice Act, § 45, as amended by the Act of 1907, which provides that if the issue on certain pleas in abatement is found against the defendant, the judgment shall be respondeat ouster, and the issue being found against the defendant it is entitled to plead to the merits.
    Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 15, 1912.
    Henry Negus and Smith & Friedmeyer, for plaintiff in error.
    Andrus & Trutter, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in assumpsit brought by defendant in error against the plaintiff in error in the Sangamon County Court, to the October term, 1911.

Service was had upon one L. W. Satehell, who is designated in the return of the sheriff as agent of the plaintiff in error. The plaintiff in error appeared and, through counsel, filed a plea in- abatement, alleging that the plaintiff in error was a corporation organized under the laws of the State of Iowa; that it was not engaged in business in, and was not a resident of, the State of Illinois; that it had no established place of business in Illinois; that it sold goods only in original packages and delivered the same through common carriers; that Mr. Satehell, upon whom service was had, was in the County of Sangamon and State of Illinois, when served, for the sole and only purpose of arranging, directing and adjusting matters growing out of the sale of its products in original packages; that the defendant below was not subject to service in Illinois; that such service was in violation of the rights of the plaintiff in error and not such service as is required by the laws of the State of Illinois or of the United States.

A replication was filed to the plea and a hearing had thereon. The court found the issues, under the plea, against the plaintiff in error, to which finding of the court the plaintiff in error excepted, and moved the court for leave to plead to the merits of the declaration. This motion was overruled and plaintiff in error denied the right to plead to the merits, to which plaintiff in error again excepted.

By order of the court the plaintiff in error was then called and defaulted, evidence heard and judgment was rendered against the plaintiff in error in the sum of $812.67 and costs of suit, in favor of the defendant in error, and execution was awarded.

Plaintiff in error thereupon made a motion to set aside the default and grant leave to plead to the declaration, which was by the court overruled, and plaintiff in error excepted and an appeal was prayed and granted to this court.

The only error complained of that is necessary to be here considered in the disposition of this case is, did the court err in denying the motion to plead to the declaration?

Section 45 of our Practice Act, as amended by the act in force July 1, 1907, is as follows: “If the issue on any plea in abatement is the truth of a statement in the return on the summons, or that the defendant is sued out of his proper county, or is not subject to suit in the county in which the suit is brought, or that the court has no jurisdiction over the person of the defendant, and such issue is found against the defendant, the judgment shall be respondeat ouster.”

The plea in this case is to the jurisdiction of the court over the defendant; that the defendant was a resident of a foreign state, had no place of business in this state and no agent upon whom.service could be legally had. This brings the case clearly within the provisions of said section 45 of the Practice Act.

The court, therefore, erred in denying the plaintiff in error the right to plead to the merits of the declaration, and for that reason the judgment of the court will be reversed and the cause remanded with directions to permit the plaintiff in error to plead to the merits of the declaration.

Reversed and remanded with directions.


text:
    John J. Convery, Appellee, v. John P. Ramsey et al., Receivers, Appellants.
    1. Master and servant—employee must prove exercise of due care. In an action by a servant for a personal injury caused by the use of defective machinery or materials employed in the business, the observance of due care and caution on the part of the servant is indispensable to his right to recover.
    2. Master and servant—employee ehosing dangerous method. Where an employee is not directed to perform his work in a specific manner, but is given general orders to perform the task and is left to the use of his own discretion as to the manner in which the work shall be done, and there exists a safe way and a dangerous way, which are equally open to him, it is his duty to select the safe way, and if he fails so to do he cannot recover for an injury.
    3. Master and servant—when employee chooses dangerous route. Where a switchman fails to mount his engine and though no emergency exists runs to overtake it, and does not take a route that he knows to be open, but takes a course in the dark that he knows leads to a working ground where it was customary for workmen to leave tools scattered, and is there injured in falling over a wheelbarrow, he is not in the exercise of reasonable care for his safety and cannot recover.
    4. Master and servant—when employee must anticipate danger. Where an employee is injured on falling over an obstruction in a route that he knew was more dangerous than a route he could have taken, he cannot contend that as he had used the route before and it appeared to be safe he had no reason to anticipate the obstruction.

      5. Master and servant—when employee cannot avail of employer’s failure of duty. Where an employee unnecessarily takes a dangerous route instead of taking .a safe route and is injured in falling over an obstruction, he cannot contend that it was the duty of his employer to keep the route free from obstructions.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed with finding of fact.
    Opinion filed October 15, 1912.
    Wilson, Warren & Child, for appellants.
    T. J. Condon and Albert Salzenstein, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This is an action on the case begun in the Circuit Court of Sangamon County by the appellee against appellants to recover damages for personal injuries. The declaration contains one count, to which a plea of not guilty was filed. The cause was heard by the court and jury, and a verdict in the sum of $1,960 was returned. Motion for new trial was overruled and judgment entered upon the verdict. To review this judgment this appeal was perfected.

The principal error complained of is that the evidence is not sufficient to sustain the verdict; that due care and caution for his own safety was not shown upon the part of the appellee.

In order to determine these questions it will be necessary to review the evidence preserved in the record.

The uncontroverted facts in this case show the surroundings of the place where appellee received his injury were as follows: A sand house stood at the north, and on the east of the sand house was what is called the “inbound track” of the railroad, which ran north and south from the sand house over an ash pit. On the west of the sand house was what is called the “outbound track,” also running north and south, these tracks being about twenty feet apart. A coal box stood south of the sand house, a distance of about seven feet, leaving an open space between them. At a point about fifteen feet south of the coal box, and almost midway between the two tracks, paralleling them, stood a tool rack about ten feet long, consisting of two posts set in the ground, with hangers thereon for the tools, leaving an open space between the tool rack and the coal box. About ten feet east of the tool rack was the ash pit, underneath the “inbound track,” and it extends north and south for á distance of about twenty feet. This space between the tool rack and the ash pit is used by the employees of appellants in cleaning engines and for depositing the tools when not in use. The space between the tool rack and the west, or “outbound” track is open.

On the night of the injury to appellee, he was employed as a switchman in the yards of the appellants ’ road, at Springfield, and had been so employed for about two and one-half months. He had been engaged in railroad train service for more than ten years. On the night in question he had gone with the crew to the sand house for the purpose of joining the engine to continue his work, and it was there his duty to clear the running boards of the engine of ice and snow thereon, by applying hot sand to the same. The engine at that time was standing on the west track, west of the sand house, facing south. After clearing the running boards of the engine of the ice, the appellee and his fellow switchman returned the tools used to the sand house and went inside, and while standing there the bell of the engine was sounded and appellee ran out of the sand house at a door at the southeast comer thereof and ran due south to the point where he received his injury.

The location of this latter point is material to the consideration of this case. We find it very difficult to determine from appellee’s evidence in chief at what exact point he claimed to have received the injury, for the reason appellee’s counsel, upon the trial of this cause, seem to have used a plat which appellee had made, and directed appellee’s attention to it, and the answers as to where the injury occurred referred to, “A,” “B” and “0,” presumably marked upon the plat, and such expressions as “there,” “here,” “over-there,” etc. This plat, for some reason, does not appear in the record. But, upon cross-examination appellee locates the point where the injury occurred upon a plat introduced by appellants, by a cross-mark made by him, at a point due south of the door of the sand house, a little north of the south end of the ash pit, and between it and the tool rack. At the time of the injury to appellee, an engine was over the ash pit and the cleaner was at work on it.

The appellee testified that he was running to overtake and board his engine and ran into the tools used to clean the fire box of the engines which had been laid with one end up on a wheelbarrow and the other end on the ground, crossways of the space between the ash pit and the tool rack, and that he did not see them because it was dark and the smoke and the steam at this point shut off the light from an arc lamp near there, if it was burning, and that he turned the wheelbarrow over and scattered the tools as he fell.

The place where appellee marked on appellant’s plat as being the point where he was injured appears to be about forty-five or fifty feet south from the door of the sand house.

Joseph Smith, a witness called on behalf of appellee,, was at the time of the accident, at work cleaning the engine which was standing over the ash pit, and he gave the alarm. After a careful examination of the evidence of this witness as it appears in the abstract and also in the record, we are unable to determine as to where he really intended to locate the point where the injury to appellee occurred. In Ms examination in chief he does not attempt to locate where the wheelbarrow was, over which it is alleged appellee fell. In his redirect examination he located the wheelbarrow as being about ten feet from the sand house and fifteen or sixteen feet north of the south end of the ash pit. On cross-examination he was asked to make a mark on appellant’s plat with the letter “0” at the point where the wheelbarrow stood at the time. The witness marked the letter “0” over near the “outbound” track, north and west of the tool rack and a little east and from seven to ten feet south of the southwest corner of the coal box. Again the witness was asked to mark on the plat the point at which the wheelbarrow was standing at the time of the injury with the figures “xx.” The “xx” as placed by the witness on the plat appears near the “inbound” track and about opposite the north end and east of the tool rack, near the north end of the ash pit.

This was all of the evidence upon this point offered by the appellee.

The appellants introduced John Higgins, who testified, in substance, that he was in the sand house when the appellee and the other switchmen working with him came in, got sand and thawed the ice off of the running board of their engine, and that appellee was standing in the sand house when the bell of the engine sounded; that appellee then ran out of a door at-the southeast corner of the sand house and that he did not see appellee again until he was informed of the injury; that he then went out and found appellee lying on his side with his feet straight out, about four feet south of the southeast corner of the coal box and that the wheelbarrow was between the appellee and the coal box, and that it was standing upright. He said he asked appellee what was the matter and that appellee replied that his leg was broken and that he did not know how it happened; that he put appellee in the wheelbarrow and took him to the coach; that the wheelbarrow- was about ten feet from the sand house.

This is all of the evidence upon the question of where appellee received his injury.

The determination of the question as to where the appellee received his injury is of importance in determining whether the appellee was in the exercise of due care and caution for his own safety at the time he received the injury complained of.

There can be no dispute as to the law. It was.necessary, in order for the appellee to recover a judgment, for him to prove upon the.trial of the cause that at the time of the accident he was in the discharge of his duty to appellants as a switchman, and that he was, at the time, in the exercise of ordinary care and caution for his own safety. Chicago, I. & L. Ry. Co. v. Barr, 204 Ill. 163; Jorgenson v. Johnson Chair Co., 169 Ill. 429.

The rule, as announced by the supreme court, is thus stated: In an action by a servant, against his employer, to recover damages for a personal injury caused by the use of defective machinery or materials employed in the. business, the observance of due care and caution on the part of the servant is indispensable to his right to recover. Pennsylvania Co. v. Lynch, 90 Ill. 333.

Another well-settled rule is, that where the employee is not directed to perform his work in a specific manner, but is given general orders to perform the task, and is, himself, left to the use of his own discretion as to the manner in which the work shall be done, and there exists a safe way and a dangerous way, which are equally open to him, it is. his duty to select the safe way, and if he fails so to do, he cannot recover for an injury. Illinois Cent. R. Co. v. Swift, 213 Ill. 307.

The present duty appellee had to perform was to mount his engine when it was ready, and assist in switching cars. The engine was standing at the sand house. He could have stepped on, but failing to do so, went inside the sand house, and was there a very few minutes when the bell sounded. If he desired to join his engine there were two routes open to him. One was by a course between the coal box and the sand house, which he knew to be open, and the other was the course he alleged he did take, which he knew led to the working ground of the engine cleaners and ash pit men, and he also knew that they were then at work, cleaning an engine and fire box with long heavy iron tools which it was the custom of the workmen to leave scattered on the ground between the ash pit and the tool rack. With this knowledge on his part, can it reasonably be said that while heedlessly running, in the dark, down through this dangerous place, he was in the exercise of reasonable care for his own safety?

It is contended, however, that appellee had been through this route and it appeared to him to be safe, and that, therefore, he had no reason to anticipate an accident.

To say the most that can be said in his favor on this question he knew there was more danger attending that route in the dark than by the route between the sand house and the coal box.

Mr. Thompson, in his work on Negligence, vol. 5, sec. 5372, lays down the following rule:

“G-enerally speaking, where an employee has a duty to perform, and there are two ways or methods of performing it or of reaching the place of performing it, one of which is dangerous and the other safe, or one of which is more dangerous than the other, and the employee knowingly and voluntarily, or through negligent ignorance, and without there being any emergency, selects the dangerous one or the more dangerous one, in consequence of which selection he brings upon himself an injury which probably would not have befallen him if he had selected the other one, he cannot make his own negligence in making the choice, the ground of recovering damages against his employer, but contributory negligence will be imputed to him as matter of law.”

It is not contended there was any emergency in this case making it necessary for appellee to mount his engine before it got out of reach, or that any emergency arose which kept him from mounting his engine before it started. The duty to be performed by aim was within the limits of a small switch yard, and his engine could have been reached within a short distance without unnecessary risk. "Unreasonable risk has been defined to be such a risk as a reasonable and prudent man would not take. Can it be said reason and good judgment would dictate that without any emergency existing, the course leading along a route strewn with tools and implements, at a high rate of speed, on a dark night, should be taken when there was an absolutely safe route of reaching the point desired by traveling the same distance?

It is further insisted by the appellee that it was the duty of appellants to keep its yards and grounds free from obstructions, and provide a safe place for appellee to work.

If it had been necessary for appellee to have passed over the route leading through the cleaning grounds, this question might be of consequence. It was not, however, necessary, at the time in question, for the appellee to pass on the east side of the tool rack in going to or coming from his work, or while at work.

So far, in considering this case, we have proceeded on the theory that the appellee’s version of the accident is correct. There is, however, reason for doubt on that subject, when we consider the evidence as a whole. It will be remembered that Mr. Higgins, who was in the sand house at the time of the injury, and was either the first or second person to reach appellee after the injury, fixed the place of the injury at a point four feet south of the southeast corner of the coal box, and the point where the wheelbarrow stood, ás between the appellee and the coal box.

The point fixed by Mr. Higgins as where the injury occurred was from thirty to thirty-five feet north of the point fixed by appellee.

As we have heretofore indicated, the evidence of Mr. Smith was unintelligible as it appears in the record, and its reliability not worthy of consideration.

As we have seen, the point fixed by appellee as where he received his injury, was known to be dangerous, and in traveling that route he was not in the exercise of due care and caution for his own safety. The point fixed by Mr. Higgins would seem to be less dangerous, but whether entirely free from danger or not, cannot be determined from this record, as there is no evidence disclosing the surroundings at this point. It is fair to the appellee to accept his theory of the case, and in doing so we are constrained to hold that he was not in the exercise of due care and caution for his own safety at the time of receiving the injury complained of.

Finding it necessary to reverse the judgment for the reasons above given, we have not considered the various other errors complained of in this record.

The judgment is reversed.

jReversed.

Finding of fact. We find that the defendant company was not guilty of any negligence.


text:
    Ben M. Kirlin, Appellee, v. William B. Chittenden, Appellant.
    1. Atjtomobiees—frightening team. Where plaintiff’s witnesses testified that an automobile driven by defendant at a speed of eight to ten miles an hour, when overtaking, and three to four feet alongside of a team of horses, started “chugging” and frightened them into a run-a-way, resulting in one of the horses being killed, and the defendant and a number of witnesses testified that the car was run at a low rate of speed, that it was not making any noise, that it had not caught up with the team at the time of the accident and that the team was frightened and excited while the car was seventy-five feet away, held, that if the evidence on behalf of plaintiff stood alone, it would be sufficient to support the verdict for damages rendered, and that where there is such a sharp conflict in evidence, a determination thereof depends on the credibility of witnesses and the weight to be given to their testimony, and this court will not interfere with the judgment entered.
    2. Appeals and errors—when verdict against weight of evidence is not set aside. A verdict will not be set aside when there is a contrariety of evidence and the facts and circumstances, by a fair and reasonable intendment, will authorize the verdict returned, notwithstanding it may appear to be against the strength and weight of the evidence, nor when the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the finding.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    F. L. Hatch, G. B. Gillespie and A. M. Fitzgerald, for appellant.
    Graham & Graham, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action on the case, begun in the Sangamon County Circuit Court, by the appellee against the appellant. The declaration consisted of three counts, charging negligence in operating an automobile on the public streets of the City of Springfield, by fast driving, unnecessary and unusual noises, and by driving nearer to the team of horses of the appellee than necessary, and thereby causing the team to run off, one of the horses to be killed and damage to the carriage and harness. The plea of the general issue was filed, and the cause was heard by a court and jury and a judgment was entered against the appellant in the sum of one hundred and twenty-five dollars, from which judgment this appeal was perfected, bringing the record before us for review.

The only question presented by the briefs of counsel for appellant is one of fact, i. e., that the verdict is manifestly against the weight of the evidence.

We, therefore, must look to the evidence in determining the rights of the parties in interest in this suit, and apply thereto the established rules of law.

A verdict will not be set aside when there is a contrariety of evidence, and the facts and circumstances, by a fair and reasonable intendment, will authorize the verdict returned, notwithstanding it may appear to be against the strength and weight of the evidence; nor when the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the finding. Shevalier v. Seager, 121 Ill. 564.

The rule as here stated seems to be well settled and recognized in the following cases: Rackley v. Rackley, 151 Ill. 332; Illinois Life Ins. Co. v. Lindley, 110 Ill. App. 161; Springfield Consol. R. Co. v. Keiser, 130 Ill. App. 56.

On the morning of the 30th day of September, 1910, the appellant, while on his way from Springfield to the State Fair Grounds, drove his automobile up and across various streets until he reached Peoria Road. There he overtook a procession of six or eight carriages on their way to a funeral, and, it is claimed by appellee, that appellant was driving at a high and dangerous rate of speed, and that his automobile was making unnecessary, loud and unusual noises by “chugging” and by means thereof frightened his team and caused them to run away. Mr. Gum, a witness introduced on behalf of the appellee, was driving the team at the time in question, and had proceeded on his way on Peoria Road until he was near Percy Avenue. This witness was an experienced driver used to driving and handling the team in question. The road over which Mr. Gum was driving had two street car tracks, and on the east track street cars were running in rapid succession, at a distance of about one-half block apart, carrying passengers to the fair ground. On the west side of the track, at the point of the alleged accident, was one of the carriages in the procession, going north, and coming south was a high-wheeled delivery motor or truck. The remainder of the procession of carriages was on the east side of the car track. At this point Mr. Gum testified that he heard a “chugging” noise approaching from the rear and he looked back and saw the appellant coming in his automobile at the rate of eight or ten miles an hour; that his team was not scared until the automobile came almost opposite them, and within three or four feet of them; that the team then started to run and he could. not hold them; that they ran away, struck a telephone pole and broke it down and one of the horses was killed.

Al. Rineker, another of the carriage drivers, testified that he saw the team when it became frightened,. but was too far away to hear the automobile or Mr. Gum, but that the automobile was about even with the team when it started to run.

William E. Therien testified that he was driving one of the carriages in the procession and was on the first carriage ahead of Gum, on the opposite side of the street car tracks, about two carriage lengths ahead of Gum; that he first noticed the automobile when the team driven by Gum started to run, and that the automobile was then about opposite Gum’s team; that the automobile started “chugging” just alongside the team.

The appellant presented a number of witnesses who testified, in substance, that they did not hear the “chugging” noise, and that the automobile was running at a low rate of speed. The appellant, a Mr. Myers and his son, all 'testified that the automobile was running slow and was not making any noise; that they noticed the team was frightened while they were seventy-five feet away and that they had not caught up with the team at the time of the accident. Other witnesses testified that the team was excited before the accident and while the automobile was at a considerable distance back of the carriage.

The rule heretofore stated is well established by a long line of well-considered cases. Under that rule it must be admitted that if the evidence on behalf of the appellee stood alone it would be sufficient to support the verdict of the jury rendered in this case. Or, if considered under the rule announced in Rackley v. Rackley, supra, that where there is such a sharp conflict in the evidence that a determination thereof depends upon the credibility of the witnesses and the weight to be given to their testimony, the court should not interfere, we cannot see anything in the evidence in this case to justify us in reversing the judgment of the trial court. This is especially true where there is no complaint as to the action of the court below in its rulings upon the admission or exclusion of the testimony, or its rulings upon the instructions.

Under the evidence in this case and the rules of law applicable thereto, we see no error in the record, and the judgment is therefore affirmed.

Affirmed.


text:
    Joseph W. Vance and Lott E. Lawson, Appellants, v. Rosie Messer and Charles Messer, Appellees.
    1. Mechanics’ liens—variance from specifications. Where a contractor has failed to construct a building in conformity with the specifications of the contract, a bill in chancery to enforce his lien will be dismissed for want of equity.
    2. Appeals and errors—error not assigned in record. Where no error is assigned in the record as to a certain action of the court, the question is not presented for review.
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    James M. Rice and E. S. Smith, for appellants.
    Ralph Dempsey and W. R. Curran, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a bill in chancery to enforce a mechanic’s lien, filed in the Circuit Court of Tazewell County, by the appellants against the appellees. Divers amendments were made to the bill, and various interpleaders were filed therein. Upon the incoming of the answer of the appellees, and the replication to said answer, the cause was, on the 21st day of December, 1901, referred to a special master to take and report the proofs, together with his conclusions of law and fact thereon. Upon the filing of the master’s report, and his conclusions and findings thereon, exceptions were filed thereto by both the appellants and appellees. The court overruled the exceptions of both parties, and rendered a decree dismissing the amended bill of appellants for want of equity, at their cost, and exceptions were preserved to the action of the court. A motion was made by appellants to set aside the order overruling appellants’ exceptions to the master’s report, and that the cause be set down for rehearing in open court, which motion was, by the court, denied, to which appellants excepted and perfected this appeal.

The parties filing the interpleaders above referred to took no appeal, but abided the decree.

The numerous errors assigned upon this record are largely based upon the findings of fact as set forth in the decree, and no good purpose can be accomplished by a discussion of all of them. The principal questions in the case may be considered under the errors assigned as “aa” and “bb,” which are, the court erred in finding that appellants are not entitled to the relief prayed, and that the court erred in dismissing the bill for want of equity.

After a careful review of all of the evidence in the record, we find, from the contract, plans and specifications and such parts of the evidence as we deem admissible, that the construction placed upon the contract by the chancellor below was the proper one, and it is as follows:

“That on the 21st day of November, 1900, the complainants, Joseph W. Vance and Lott E. Lawson, partners under, the firm name of Vance & Lawson, entered into a contract with the defendants, Rosie Messer and Charles F. Messer, for the construction of the cement work on a building to be situated on the following described real estate, (here describing it fully,). That in and by said contract the said complainants agreed to do the work on said building according to the plans and specifications, for which the defendants were to pay the complainants the sum of Fifteen Hundred and Fifty Dollars, (here setting out the provisions for the three payments,) the work to be commenced immediately and the basement walls carried up at least six (6) feet high before winter and the whole work to be completed on or before the 15th day of May, 1901, weather permitting. The court further finds that in and by the specifications and contract the complainants were to do all excavating necessary, as shown on the plans, using the earth to fill in around foundation, the concrete for footings and foundation walls to be. composed of atlas cement', sand, gravel, and crushed stone, mixed in proper proportion to make a first-class job; the crushed stone to be no larger than the size of a walnut; the foundation to consist of a footing course thirty (30) inches by eighteen (18) inches, one twenty-four (24) inches by twelve (12) and one eighteen (18) inches by twelve (12) inches; the balance of the wall, seventeen (17) feet, more or less, to be sixteen (16) inches thick, carried up to the proper height so as to bring the first story joists twelve (12) inches above the grade; two (2) cross walls,seven (7) feet eight (8) inches high and eight (8) inches thick, to have footings twelve inches, were to be constructed; all walls to have good bond and the contractor to protect the same from the weather. The court further finds that the defendants were to furnish the complainants with the loan of floor joists to be used in laying up and placing the walls, the complainants to return the same in good condition, to be used for floor joists. That by said specifications the first and second story was to be laid up with litholite stone made of atlas cement, sand and gravel, mixed in proper proportions, the stones to be made with hollow air spaces, and to be well bonded and anchored where necessary; the front of the building to be as shown by the design drawn and to have granite finish; sides and rear to have sand finish. The court further finds that by the plans made a part of said contract and specifications, it was provided that excavation was to be made to the depth of forty-two (42) inches below the existing surface of the ground where said buildings was to be located, and that the footings of the inner walls were to be' twelve (12) inches below the then surface of the ground. The court further finds that by said plans in the construction of the said building that three (3) chimneys were to be constructed in the walls of said building, and that in the construction of said chimneys they were to be made larger than afforded by the thickness of the walls of said building, making off-sets in said walls.”

Thus it will be seen, from the plans and specifications, together with the contract, that the appellants were to construct the concrete work of the building, withiri'a time specified, of good material and in a workmanlike manner, or, as recited in the contract, “so as to make a first-class job.”

From the evidence in this case we find the appellants did not make the excavations provided for, but laid the foundation upon the surface of the ground, and that in the construction of the walls of the building they did not use a proportionately proper mixture of sand, gravel and cement; that they placed in the walls “green” blocks, some of which were taken fresh from the moulds on boards and laid in the walls; that the walls of the building were not straight and plumb, but there was a variation and leaning of the walls of from one to two and one-half inches; that the width of the building at the top was four and one-half inches greater than at the first floor; that the building was not anchored; that the flues were constructed in a different manner and were smaller than provided in the contract; that the cross walls and cement floors provided for in the contract were not constructed at all, and that the foundation was not protected in the winter of 1900 by appellants, as provided in the contract, and that the building in settling left large cracks in all of the walls, except the front, some of which extended from the foundation to the roof. Many of these facts were controverted, but the evidence largely preponderates in favor of the above findings from this record.

The findings of the chancellor, as recited in the decree, and as to which appellants complain, are in strict conformity with the facts as shown by the record.

Great stress is laid upon the second assignment of error, viz., that the court failed to find the ownership of the real estate where the building in question was erected.

Under the view we entertain as to the facts in this case, no injury could accrue to appellant by reason of the failure to find as to the ownership of the property, if it did so fail.

Appellants complain at the action of the court in refusing to set down for rehearing, in open court, their objections to the report and findings of the master.

We fail to find in this record any error assigned by appellants as to this action of the court. Therefore, the question is not presented for review.

Finding no error in the findings and decree of the court, the decree is affirmed.

Affirmed.


text:
    Zadoc Ford, minor, by Charity J. Ford, Plaintiff in Error, v. St. Louis Loan & Investment Company et al., Defendants in Error.
    Abatement and eevivai—when jurisdiction of heir is not acquired. Where on a hill to foreclose a mortgage a suminons is issued for an heir of the mortgagor without an order of court having been entered as provided by R. S. ch. 1, § 12, concerning suits not abating on the death of a party, and prior to a suggestion of the death of the ancestor, the mortgagor, and an order of court making the heir a party defendant and an amendment of the bill which made him a party, such facts render the service void and jurisdiction of the person of the heir is not acquired,
    Error to the Circuit Court of "Vermilion county; the Hon. Mobton W. Thompson, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 15, 1912.
    Tilton & Taylor, for plaintiff in error.
    Silas Cook and O. M. Jones, for defendants in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a bill of review filed by the plaintiff in error against the defendants in error seeking to have reviewed a decree entered in the Vermilion County Circuit Court, on the second day of November, 1908, in the case of The St. Louis Loan and Investment Company of Bast St. Louis, Illinois, against A. H. Ford, C. J. Ford and C. B. Spang, entitled, “Foreclosure,” for want of jurisdiction of the court of the person of Zadoc Ford, a minor; the bill alleged the proper credits were not given for payments made upon the indebtedness; that the decree does not find or determine the several amounts due to the complainant in the original bill, as interest, premiums, dues or principal, but makes a finding of a total sum; that the allowance of solicitors’ fees is illegal and void; that the appointment of a receiver was illegal and void, and that the sale made under said decree was without legal authority and void.

The original bill here sought to be reviewed was filed in the Vermilion Circuit Court to the October term, 1907, and was for the foreclosure of a real estate mortgage. All defendants were duly served with summons and the cause regularly continued from term to term. On May 7, 1908, the record shows the following proceedings were had. A summons was issued by the clerk of the said court directed to the sheriff of said county to execute, commanding him to summon Zadoc Ford to appear at the May term of said court, on the third Monday in May, to answer the said bill. The return on the summons shows that said Zadoc Ford was duly served on the 8th day of May, 1908.

The record further shows that on the eighth day of May, 1908, the death of A. H. Ford, one of the defendants, was suggested of record and leave given to make Zadoc Ford, the only heir of A. H. Ford, deceased, a party defendant and cause continued for service upon said Zadoc Ford.

On November 14, 1908, by leave of the court, an amended and supplementary bill was filed, alleging, among other things, the death of A. H. Ford and that Zadoc Ford was his only heir at law, and recited that said Zadoc Ford had already- been served with summons on May 8, 1908. A guardian ad litem was appointed for the minor, Zadoc Ford, and answer filed. The other plaintiff in error, Charity J. Ford, was called and defaulted and a decree entered, the property sold and a deficit reported.

The bill here under consideration contained many recitations which we do not deem it necessary to consider, and concludes with a prayer that the decree in the foreclosure proceeding be revoked, reversed and set aside and no further proceedings taken therein; that the defendants to the bill be restrained from taking possession of the property or from collecting rent, dr in any manner interfering with the rights and interests of the complainants, plaintiffs in error here.

To the bill of review the defendants in error filed general demurrers in the trial court, which demurrers were sustained and the bill dismissed for want of equity, and this is a writ of error sued out of this court by plaintiff in error to reverse the order of dismissal.

We are of the opinion the trial court erred in sustaining the demurrers and dismissing the bill herein for the reason the record of the former proceedings recited in the plaintiff in error’s bill fails to show that the court rendering the decree in the foreclosure proceeding had any jurisdiction over the person of Zadoc Ford. It is disclosed by said record that on the 8th day of May, 1908, the death of A. H. Ford, father of the said Zadoc Ford, was suggested of record and leave given to make said Zadoc Ford a party defendant to the proceeding, and that the cause was continued for service upon him. On the same day the sheriff served the summons which had been issued on May 7th upon said Zadoc Ford. This was all of the proceedings had upon the said 8th day of May. On the 14th day of November, 1908, at a subsequent term of the said court, an amended and supplemental bill was filed, reciting the death of the said A. H. Ford, and that Zadoc Ford was his only heir at law, and a minor, and further reciting that he had already been served with summons.

The summons referred to, as shown in the record, was issued on the 7th day of May, 1908, one day before the death of the defendant A. H. Ford was suggested of record, and one day before leave was given to make said Zadoc Ford a party defendant, and more than six months before the amended bill was filed making him a party defendant.

The law under which said Zadoc Ford was intended to have been made a party defendant to the foreclosure proceeding, provides that when there are several defendants to a proceeding and one of them dies before judgment or decree, the suit shall not abate, if it might originally have been begun against the heir or representative of the deceased, but upon the death of the defendant being suggested on the record, summons shall, by the order of the court, issue against such person or legal representative, requiring him to appear and defend, etc., after which the case shall proceed as if it had originally been commenced against him. Section 12, chap. 1, B. S.

Thus it will be seen from this section, that it was necessary that the court should make an order before summons could be issued. In other words, the.plaintiff in error, Zadoc Ford, could not be made a defendant without the order of the court being first had. And, after the order was made, the defendant should be proceeded against in all respects as if he had been made a party at the commencement of the suit.

Section 4 of chapter 22, B. S., entitled “Chancery,” provides that the mode of commencing suits in chancery shall be by filing a bill of complaint with the proper clerk, and section 8 of said chapter provides that upon the filing of the bill the clerk shall issue summons. In passing upon these sections of the statute, the supreme court, in the case of Hodgen v. Guttery, 58 Ill. 431, said: “It will be thus seen that a summons cannot issue until the bill is filed. It is only upon its being filed with the clerk that the suit is commenced, or the summons can issue. Such is the statutory requirement. This act regulates and establishes the practice in such cases, ,and it alone confers power on the clerk to act, and he must conform to its provisions. Until the bill is filed no suit is pending, and until it is commenced the clerk can neither legally issue process nor make publication.” This holding is supported by the following authorities. Reid, Murdoch & Co. v. Sheffy, 75 Ill. App. 136; Hansen v. Klicka, 78 Ill. App. 177; Mitchell v. King, 187 Ill. 452.

There is no difference between the position that the plaintiff in error Zadoc Ford sustains to the decree sought to be reviewed than there would have been had he been made a party defendant to that bill at the time of the filing of same and had been served with summons issued by the clerk before the bill was filed. The fact that the summons in that case was issued before the suggestion of the death of the ancestor and the prder of the court making him a party , defendant and the amendment of the hill which made him a party, renders the service void, and did not give the court jurisdiction of his person. Not having been legally made a party to that proceeding, it naturally follows that he is not bound by the decree rendered in that case, and was not required, in law, to observe, • obey, or even respect the decree.

The allegations of the bill here involved show that the court did not have jurisdiction of the person of the plaintiff in error Zadoc Ford, the minor, at the time of rendering the decree of foreclosure.

It was error, therefore, to assume to have jurisdiction, and the error is apparent from an examination of the record in that case.

There are other errors complained of by the plaintiff in error, but we do not deem it necessary at this time to discuss them.

For the error above indicated, the order and decree of the court below is reversed, and the cause is remanded to the circuit court with directions to overrule the demurrer.

Reversed and remanded tvith directions.


author: Mr. Presiding Justice Thompson

text:
    B. R. Yergler and Emil M. Kramer, Appellees, v. Samuel A. Kaufmann and J. W. Kaufmann (J. W. Kaufmann, Appellant). B. R. Yergler and Emil M. Kramer, Appellees, v. Samuel A. Kaufmann and J. W. Kaufmann, Appellants.
    1. Partnership—when interest in firm is not lost. Partners who buy a note which another partner owes to the firm for his interest in the partnership will not thereby take the place of the partner whose note they have paid. *
    2. Partnership—when partner is necessary party to MU to dissolve firm. Where partners buy a note which another partner owes to the firm for his interest in the partnership, and file a bill to dissolve the partnership, the maker of the note is a necessary party.
    3. Partnership—when donor of land is not necessary party to MU to dissolve firm. Where a merchants’ association conditionally agrees to give a partnership certain real estate upon which to operate its factory, on a bill by a partner to dissolve the firm the merchants1 association is neither a proper nor necessary party.
    4. Partnership—when remedy to obtain firm .money appropriated is at law. Where a person in appropriating money of a partnership acts as an attorney in fact of a partner, on a bill by a partner to dissolve the firm such agent cannot be compelled to account for the money, since the remedy is at law.
    5. Costs—when successful appellant must pay. Where a decree is reversed and the appellants have made needless costs by perfecting two appeals, they will be charged in the last appeal with a proportion of the costs equal to the costs of the record in the first appeal, and also the clerk’s costs in the second appeal.
    Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed November 12, 1912.
    Statement by the Court. Emil M. Kramer and B. B. Yergler filed a bill in chancery to the August term, 1911, of the Circuit Court of Ford county against Samuel A. Kaufmann and J. W. Kaufmann praying for the dissolution of a partnership alleged to exist between the complainants and Samuel A. Kaufmann and for the appointment of a receiver of the partnership property. The bill alleges that in August, 1907, Samuel A. Kaufmann of Creen Hill, West Virginia, and Emil M. Kramer and J. E. Kramer, then of Paxton, Illinois, and B. B. Yergler of Gridley, Illinois, entered into a copartnership for the purpose of carrying on a general manufacturing business at Paxton, Illinois, the principal part of which was the manufacture and sale of rotary harrow attachments for use on sulky and gang plows, under the name of “The E. M. Kramer Company;” that the interests of the partners were Samuel A. Kaufmann a one-third, Emil M. Kramer a one-third, J. E. Kramer a one-sixth and B. B. Yergler-a one-sixth; that J. E. Kramer paid into the partnership for his interest the sum of $4,000; that B. B. Yergler paid into the partnership for his interest $5,000; that the business and patent rights owned by Emil M. Kramer were received by the partnership in full payment of his interest in said partnerskip and that Samuel A. Kaufmann has only paid into the partnership for his interest the sum of $372.40. The bill further alleges that while Samuel A. Kaufmann’s name was used in the formation of said partnership yet the real party in interest was J. W. Kaufmann and not Samuel A. Kaufmann; that Samuel A. Kaufmann is only the nominal partner and owner of said interest, the same being held in his name for J. W. Kaufmann at the request of J. W. Kauffmann, and that neither the said Samuel A. Kaufmann nor J. W. Kaufmann have made any payment on the interest nominally held by the said Samuel A. Kaufmann except said sum of $372.40; that the agreement provides that Joseph E. Kramer and B. B. Yergler should have charge of the receiving and shipping of the material and products of the company, the employment of labor, the purchase of all material and the general accounting and bookkeeping of the company, but J. W. Kaufmann, acting as agent and attorney in fact of Samuel A. Kaufmann, took to himself the matter of general accounting and bookkeeping and has had charge of the bookkeeping and excluded Joseph E. Kramer and B. B. Yergler from the same; that J. W. Kaufmann has failed to keep proper books of account to show the condition of the firm, and that complainants to get such information as to the business of the firm have been obliged to employ experts to examine the books; that the examination by the experts shows that J. W. Kaufmann has collected and failed to account for at least $723, and that he has shipped one hundred and twenty-one harrows and failed to account or report to the firm for them or the proceeds; that by the terms of the partnership agreement it is provided that on all important matters the partners shall consult each other, but J. W. Kaufmann has without the knowledge or consent of the other members of the firm borrowed large sums of money and incurred large indebtedness and said firm is now indebted in the sum of $27,000 which is now due; that in the said agreement it is provided that the company’s indebtedness shall at no time exceed two-thirds of the products sold without the mutual consent of the parties, and the present indebtedness by reason of the acts of J. W. Kaufmann largely exceeds two-thirds of the products sold by the firm; that complainants from time to time inquired of J. W. Kaufmann concerning the condition of the business of the firm and that J. W. Kaufmann at such times misrepresented to complainants the condition of the business ; that on one occasion he stated to complainants that the firm had $5,000 in the bank, but on examination it was found the bank account was overdrawn and the firm was at that time indebted to the bank on notes amounting to $10,000; that the said agreement provides that no partner shall pledge the credit of the partnership except in the discharge of his duty in the department he has charge of, and when he does so he shall report his actions to the bookkeeper for proper entry and shall advise his copartners of the same, but that said J. W. Kaufmann in violation of said agreement on many occasions made large partnership debts of which he did not advise his copartners; that it is provided in the said agreement that at the expiration of one year from the date thereof that said business should be incorporated, and complainants state that although the said J. W. Kaufmann as agent and attorney for Samuel A. Kaufmann has been requested by complainants many times to incorporate said business yet he has failed so to do or to consent to forming said corporation; that B. R. Yergler is the only member of the firm who has any means or property outside of their interest in the business, and in case the partnership should become insolvent he is the one who would have to bear the burden of the debts, and that he only entered said partnership on the condition that said partnership should be incorporated and his liability limited to the amount invested in the corporation.

      The bill alleges that Joseph E. Kramer continued a member of the partnership for two years and that the interest of said Joseph E. Kramer is now owned by complainants.
    It is further alleged that there is litigation pending in court between the partners on account of the books of the firm; that there have been numerous quarrels between complainants and J. W. Kaufmann and there is an intense feeling of bitterness between the partners, and on that account the business cannot be carried on at a profit or to the advantage of the parties; that the nominal assets amount to $40,000 but if the creditors close in on the company, as they now threaten to do, the assets would be sacrificed and complainants would lose all they have in said company and complainant Tergler would be required to pay the deficiency out of his own property; that the patents owned by the company are valuable and the business of the company profitable if properly managed, but on account of the incompetency of J. W. Kaufmann it. has not been profitable.
    A copy of the partnership agreement and of an agreement between Samuel A. Kaufmann and Emil M. Kramer made simultaneously with the partnership agreement are attached to and made a part of the bill. A receiver was appointed when the bill was filed.
    The defendants filed separate answers admitting the making of the partnership agreement as alleged but denying substantially all the other material allegations of the bill. The answers state that the troubles and quarrels between the complainants and J. W. Kaufmann are because of misconduct on the part of the complainants. The answer of Samuel Kaufmann states that J. W. Kaufmann has done nothing except what was to promote the welfare of the copartnership.
    The answers state that J. E. Kramer with the consent of the copartners sold his interest to one A. C. Ruby, who gave his note for said Kramer’s interest and that no agreement was made between the copartners to allow any other person than A. C. Ruby to become a partner in the place of Ruby, and if B. R. Yergler has assumed and paid for the note given by Ruby, that does not constitute him an owner of Ruby’s interest. The answers admit that J. E. Kramer paid $4,000 for his interest and that Yergler paid $5,000 for his interest, but deny that the business and patents of Emil M. Kramer were received in full of his interest; assert that prior to the formation of the partnership sought to be dissolved Emil M. Kramer and defendant Samuel A. Kaufmann had been engaged in the manufacture of the same rotary harrow, in which business J. W. Kaufmann had represented Samuel Kaufmann; that J. W. Kaufmann had acquired an interest in the said patents, and that Samuel Kaufmann had acquired the interest of J. W. Kaufmann, which J. W. Kaufmann had under a contract with Emil M. Kramer made on April 16, 1906; that in the first partnership J. É. Kramer was given a conditional interest by a contract dated March 20, 1907, and insist that the provision in the partnership contract regarding the payment of certain profits of the share of Samuel A. Kaufmann to Emil M. Kramer is not a matter to be adjudicated in this suit.
    The cause was referred to a special master in chancery to take the evidence and report the- same with his conclusions. Upon the hearing, on exceptions to the report the court entered a decree finding among other things:
    (2) That Emil M. Kramer, B. R. Yergler, Samuel A. Kaufmann and J. E. Kramer entered into the articles of partnership dated August 1, 1907.
    (5) That J. E. Kramer had a one-sixth interest for which he paid $4,000; B. R. Yergler a one-sixth for which he paid $5,000; Emil M. -Kramer a one-third in payment for which he turned oyer certain patents and his interest in a manufacturing business, and Samuel A. Kaufmann had a one-third interest given to him by an agreement between J. W. Kaufmann and said Samuel A. Kaufmann for part compensation for time expended by J. W. Kaufmann from April, 1906, to August, 1907, and certain moneys, expended in the business before that time, the value of such interest being $2,700, and that Samuel A. Kaufmann was to pay Emil M. Kramer one-half the difference between $2,700 and the $10,000 interest S. A. Kaufmann was to have in said copartnership, and the other half was to be paid into the firm.
    (6) That J. E. Kramer was paid $5,000 by the partnership for his interest and by agreement of the partners that interest was sold to one A. 0. Ruby who gave notes for said interest, that Ruby never paid said notes but that complainants without the consent of defendants took up the Ruby notes and paid therefor $5,600.
    (7) That the copartnership agreement is in typewriting with the interlineation with a pen at the end of the fourth paragraph, that “It is mutually agreed at the expiration of one year from date to incorporate the business.”
    (8) That complainants at the expiration of one year from the date of the contract, and many times . thereafter, had requested said defendants to incorporate said business but said defendants refused to incorporate it.
    (9) That B. R. Yergler is worth $65,000 and is the only member of the firm having anything outside of what interest they may have in the business.
    (12) That J. W. Kaufmann has withdrawn from the assets of the firm $315.49.
    (15) That J. W. Kaufmann made numerous misstatements to the complainants as to the amount of the profits.
    (16) That J. W. Kaufmann was acting in said partnership matters under a general power of attorney from Samuel A. Kaufmann with the same powers and rights that S. A. Kaufmann had and the acts of J. W. Kaufmann are the acts of Samuel A. Kaufmann.

      (17) That extremely bitter relations exist between Emil M. Kramer and B. B: Yergler on the one part and J. W. Kaufmann on the other; that these relations have been brought about by numerous causes.
    (18) That the heaviest creditors before the filing of the bill in this cause were demanding their money.
    (19) That the copartnership cannot be further carried on without some one putting more money into the business.
    (20) That the relations between the parties are such that the business cannot be further carried on successfully.
    The decree orders that the partnership be dissolved; that the assets be sold by the special master; that J. W. Kaufmann within thirty days pay to the special master the sum of $315.49 which he withdrew from said firm; that the special master from the proceeds pay, first the costs, second the debts of the partnership if there be sufficient so to do and if not that the proceeds be pro-rated amongst the creditors; that if any proceeds be left after the payment of the debts that the balance be distributed amongst the partners in proportion to the amounts paid into said firm; that there has been paid in by S. A. Kaufmann $2,700, by Emil Kramer $12,500, and by B. B. Yergler $7,500; thát in case the amount going to S. A. Kaufmann shall exceed $2,700, the surplus going to him shall be distributed one-half to Emil Kramer and the other half to the said partners in the proportion of four-twelfths to S. A. Kaufmann, five-twelfths to Emil M. Kramer and the three-twelfths to B. B. Yergler; if there be not sufficient to pay the debts then the said parties jointly and severally shall pay to the special master within thirty days sufficient to pay said deficiency, the proportion each- partner shall pay towards said deficiency shall be Samuel A. Kaufmann four-twelfths, Emil M. Kramer five-twelfths and B. B. Yergler three-twelfths; that all claims and proof of same be turned over by the receiver to the special master, and if any of the claims are objected to by any partner or creditor then the special master take the proof concerning the same and report the proof to the court before anything be paid on any claims and that the receiver remain in custody of the property until the same is sold.
    The defendants severally and jointly prayed an appeal to this court. J. W. Kaufmann has perfected one appeal and the two defendants have also perfected a second appeal.
    C. E. Beach and Cloud & Thompson, for appellants.
    Welty, Sterling & Whitmore and Kerr & Lindley, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

J. W. Kaufmann filed a bond for an appeal on February 15, 1912. On the same day both the defendants filed a joint and several bond for an appeal. J. W. Kaufmann on March 25th gave a notice with a copy of the praecipe for a record to counsel for appellees, that on March 30th, they would file such praecipe for a record in his appeal. The praecipe was filed that day. This praecipe calls for the process, pleadings, decree, orders of court and certain portions of the evidence and certain exhibits selected here and there from the report of evidence made by the master. The defendant on April 3, 1912, perfected his several appeal by filing in this court a transcript of the record, called for by the praecipe, which contains seven hundred pages. On the same day J. W. Kaufmann and Samuel A. Kaufmann perfected their joint appeal by filing a transcript of the record, consisting of over 3,000 pages, which contains all that is in the transcript filed on the appeal of J. W. Kaufmann with the full report made by the master, and also depositions taken in the case and attached exhibits which were not reported by the master. No praecipe appears to have been filed for the record in the joint appeal. J. W. Kaufmann assigns errors on the record filed by him and also jointly with Samuel A. Kaufmann assigns errors on the record in the joint appeal. The two appeals were consolidated in this court.

It is assigned for error that the cause should not have proceeded to final hearing without A. 0. Buby having first been made a party to the cause. The proof shows that by agreement of all the copartners the interest of J. E. Kramer was bought by the remaining copartners, and that by agreement of all the remaining copartners the interest that J. E. Kramer had had in the partnership was sold to A. C. Buby. Buby gave two notes to the partnership for that interest. These notes were transferred by the partnership to a bank, and the note first maturing not being paid when due, Emil Kramer and B. B. Tergler, who had indorsed it, paid both notes by giving their individual note, and now claim that such act was a purchase of the interest of Buby. The evidence does not show that either Samuel A. Kaufmann or J. W. Kaufmann his attorney in fact had any notice that Kramer and Tergler had taken up the notes of Buby. Before Buby could relieve himself from any liability as a copartner and change the liability of Samuel A. Kaufmann, said Kaufmann must have consented or agreed to such a change. Partners who buy a note, that another partner owes to the firm, will not thereby take the place of the partner whose note they have paid. While in equity they may be entitled to be repaid from his interest, such purchase will neither deprive him of any surplus he may have in the partnership assets nor relieve him from any liabilities incurred after he becomes a partner.

The court found that B. B. Tergler is the only member of the firm who has anything outside of his interest in the business, and that if there was a deficiency of assets that deficiency should be made up in certain proportions by the partners. If Buby was either a partner and liable for any of the deficiency, or merely the owner of a partnership interest, then it is manifest there is error in the decree and it was error to proceed to a decree without making him a party.

It is also assigned for error that the trustees of the Merchants’ Association of Paxton were necessary parties to the suit. The Merchants’ Association had conditionally agreed to give the partnership certain real estate upon which to operate its factory; the title to this property was to be conveyed to the partnership when it had paid wages amounting to $60,000 exclusive of wages paid to office help and salesmen. While on a dissolution of the partnership the rights of the partnership and the citizens’ association will ultimately have to be settled, yet, they cannot be adjudicated in a suit to dissolve the partnership. The issues in such a matter are not germane to the dissolution of the partnership and the trustees of the Merchants’ Association of Paxton were neither proper nor necessary parties so far as shown by the record in this case.

It is also assigned for error that the court erred in finding that J. W. Kaufmann had withdrawn $315.49 from the assets of the firm and in directing him to pay said sum to the special master within thirty days. The court did not find that J. W. Kaufmann was a partner. He was the attorney in fact of Samuel A. Kaufmann. Samuel A. Kaufmann, the partner, may be liable to be charged in this suit for the dissolution of the partnership, with the sum withdrawn by his attorney in fact, but the accounting between the partnership and J. W. Kaufmann, if he is. to be charged simply as an employee or debtor of the partnership, cannot be tried in the suit for the dissolution of the partnership. If he is required to personally account for moneys appropriated by him, that would properly be tried in a suit at law. If his acts in appropriating the money- were the acts of his principal, Samuel A. Kaufmann, then the court would have the right in settling the rights of the partners to charge Samuel A. Kaufmann, the partner, with the acts of his agent and should also give Samuel A. Kaufmann credit for any moneys advanced by his agent for him. The court erred in rendering a judgment for $315.49 against J. W. Kaufmann, who was not found to be a partner.

The appellants having made needless costs by perfecting two appeals they will be charged in the last appeal with a proportion of the costs equal to the cost of the record in the first appeal, which is the smaller record, and the clerk’s costs in the second appeal.

Reversed and remanded.


author: Mr. Justice Fitch

text:
    Kathleen V. McNellis, Defendant in Error, v. Aetna Insurance Company, Plaintiff in Error.
    Gen. No. 17,591.
    1. Insurance—interest. Interest may be recovered on an amount found due on a policy of insurance though not specifically claimed in the declaration.
    2. Appeals and ebbors—-variance "between claim and judgment. Where judgment was rendered for the amount of an insurance policy and interest, though no. interest was claimed, an objection on the ground of variance between the judgment and the claim cannot be made in the appellate court where it does not appear that such objection was made in the trial court.
    3. Insurance—when admitted that policy is in force. The fact that an attempt was made by an insurance company to cancel a policy is an admission that the policy was in force at the time of such attempt.
    4. Evidence—when exclusion of notice to cancel insurance policy proper. In an action on an insurance policy it is not error to exclude a notice that the policy would be canceled for nonpayment of premiums, where the policy provides that it may be canceled by the company by giving five days’ notice and that in matters ¡relating to the insurance no person shall be deemed the agent of the company unless duly authorized in writing, when no attempt is made to show that the alleged agent who served such notice had such written authority.
    5. Evidence—exclusion of question calling for conclusion. Where action is brought on an insurance policy which provides that in matters relating to the insurance no person shall be deemed the agent of the company unless duly authorized in writing, it is not error to sustain an objection to a question put to an agent of the company as to whether an alleged agent who served notice that the policy would be canceled had authority to serve such notices.
    6. Insurance—notice of cancellation. A notice to a holder of an insurance policy, which states that “We shall cancel the policy,” is not in itself a cancellation.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Ward, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 23, 1913.
    Furber & Wakelee, for plaintiff in error.
    Guerin, Gallagher & Barrett, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Plaintiff sued defendant on an insurance policy for $750 to recover a fire loss of her household furniture. The defense was that plaintiff did not pay the insurance premium and that defendant canceled the policy for that reason before the fire occurred. On a trial before a jury in the municipal court, plaintiff recovered a judgment for the face of the policy and interest. It is contended here that the judgment is erroneous because (1) it exceeds the amount claimed in the plaintiff’s statement of claim, to the extent of the interest allowed, and (2) the court erred in admitting certain evidence and excluding certain offered evidence.

It appears from the evidence that Cheshire and Shotwell were the renting agents of the owner of the premises in which the plaintiff lived, and at the same time they were agents of the defendant Insurance Company. They had in their employ a clerk named Scott, who collected the rent from the plaintiff. Plaintiff claimed that she had an agreement with Cheshire and Shotwell (which had not been performed by them) to the effect that she should be given a credit of ten dollars on her first month’s rent; that Scott “solicited” her insurance and that she acquiesced upon the understanding that Cheshire and Shotwell would apply the ten dollars due her to the payment of the insurance premium, which was $10.80. 1 Scott denied that there was any such understanding. The policy was issued, however, by defendant and delivered to plaintiff in March, 1909, and the premium was paid to defendant by Cheshire and Shotwell in the due course of their insurance business, and they mailed a bill for the same to the plaintiff on one of their own (not the defendant’s) billheads. Scott testified that six months later, on September 17, 1909, he asked the plaintiff to pay the amount of the premium, $10.80; that she told him she could not pay it; that thereupon he took out of his pocket a blank notice, filled in the blanks, signed it himself, and handed the notice to her. A copy of this notice was marked for identification on the trial. It was to the effect that the premium on the policy (describing it) had not been paid “to this Company or any agent thereof,” and that “unless premium thereon shall be paid on or before twelve o’clock noon of September 22, 1909, we shall cancel the insurance under said policy upon our books for non-payment of premium without further notice and terminate our liability thereunder from that date,” and was signed “Aetna Insurance Company, by Cheshire and Shotwell, agents.” Plaintiff denied receiving any such notice. There was no further evidence of any cancellation or notice thereof. Scott testified that he had no written authority from defendant to act for it; that the premium was due to Cheshire and Shotwell, and that he had no instructions from any one to cancel the policy. The notice was then offered in evidence. An objection to the offer was sustained upon the ground that Scott’s authority to act for defendant had not been shown. Defendant’s general agent in Chicago was then called as a witness and asked whether “as the representative of the Aetna Insurance Company, in Chicago, Mr. Scott had authority to serve notice of cancellation of policies for non-payment of premiums.” This question was objected to as calling for a conclusion, and also for the reason that by the terms of the policy the authority of any agent of the Insurance Company must he in writing, and the objection was sustained.

As to the question concerning the allowance of interest the rule is, that interest upon an amount found due upon a policy of insurance may be recovered even though not specifically claimed in the declaration. Grand Lodge A. O. U. W. v. Bagley, 164 Ill. 340; Boening v. North American Union, 155 Ill. App. 528. The same cases also hold that any question of variance between the amount of the verdict or judgment and the amount claimed by the pleadings, must be pointed out in the trial court, and cannot be first raised in the appellate court. It does not appear that this objection was made in the court below, and therefore, it cannot be made here.

Nor do we think that the court erred in its rulings on the evidence. It was not disputed that a valid policy of insurance, delivered by defendant to the plaintiff, was in force at the time of the attempted cancellation. The very fact that there was an attempt to cancel it is an admission that the policy .was in force at the time of such attempt. Aetna Ins. Co. v. Maguire, 51 Ill. 342. The policy reads: “This policy shall be cancelled at any time at the request of the insured, or by the Company, by giving five days' notice of such cancellation,” and that “in any matter relating to this insurance, no person, unless duly authorized in writing, shall be deemed the agent of this Company.” The notice was excluded because the authority of Scott to give the notice had not been shown. ‘1 There is no presumption that a mere soliciting agent has a right to cancel a policy, and in fact he has no such power without express authorization.” 19 Cyc. 648. No attempt was made to show any written authority, and Scott himself did not claim to have any authority from the defendant. It is clear that his theory was that he had the right to cancel the policy merely because he claimed that the bill of Cheshire and Shotwell to the plaintiff for the premium had not been paid. It is apparent from the record that the court did not hold that defendant might not, if it could, show by competent evidence that Scott had authority to serve a cancellation notice. The court merely ruled that the question as put by defendant’s counsel to the general agent was open to the objections specifically stated by plaintiff’s counsel. The ruling was clearly correct. x

Furthermore, the notice which Scott says he served upon the plaintiff does not purport to cancel the policy. It merely states that unless the premium be paid by a certain date, “We shall cancel the policy.” Such a notice is not, in itself, a cancellation (Newark Fire Ins. Co. v. Sammons, 110 Ill. 166), and there was no evidence tending to show that the intention expressed in the notice was carried into effect by a cancellation of the policy, or notice thereof, before the fire occurred.

The judgment of the municipal court will be affirmed.

Affirmed.