text:
    Lizzie Apitz, Appellee, v. Supreme Lodge Knights and Ladies of Honor, Appellant.
    Gen. No. 6,007.
    1. Death, § 6

      —when death may be presumed before lapse of time ordinarily required. The presumption of fact which will justify the conclusion of death before the lapse of time required for the legal presumption of the death of an absentee must arise from specific evidence of circumstances tending to show such death.
    2. Evidence, § 23

      —when not presumed that Supreme Court names all conditions under which a stated rule will apply. Where a decision oí the Supreme Court names certain circumstances under which a stated rule of law will apply, it is not to be presumed that all the conditions under which such rule would apply are therein named, but that a class of evidence is intended to be described which would warrant the application of the rule.
    3. Death, § 2

      —when presumed to have occurred at end of seven years. Where there is no specific evidence tending to show the death of an absentee before the expiration of seven years from the date of his disappearance, the death of such absentee is presumed to have occurred at the end of seven years from the date of such disappearance precisely as if there were positive evidence that such absentee died on the last day of such seven-year period.
    4. Insurance, § 794

      —when by-law providing for suspension not waived by acceptance of assessments. In an action to recover on a certificate of insurance issued by a- fraternal benefit society, where plaintiff was the beneficiary named in such certificate, and a by-law of defendant society provided that upon disappearance of insured and failure to reappear within one year from the date of such disappearance insured should stand suspended, and such disappearance took place November 7, 1905, the acceptance by defendant of the assessment for the month of November, 1906, held not a waiver of its rights under the by-law, it appearing that such assessment became payable before the expiration of one year after such disappearance.

      5. Insurance, § 747

      —when members of benefit society bound by subsequently enacted by-laws. After-enacted by-laws of a fraternal benefit society will bind its members when the contract so provides, so as to change such contract in accordance with such subsequent by-laws.
    6. Insurance, § 747

      —when after-enacted by-laws of benefit society not invalid. After-enacted by-laws of a fraternal benefit society which forfeit claims for the death of a member in certain cases are not in and of themselves invalid as being unreasonable.
    7. Insurance, § 747

      —when benefit society no power to talce away its power to adopt by-laws in future. A fraternal benefit society cannot by a by-law or by a constitution having only the force of a by-law take away its inherent power to adopt in the future such other by-laws as its charter permits, although such after-enacted by-law may change the manner of adopting by-laws and thereby affect the obligation of the contract.

      8. Insurance, § 747

      —what subsequently enacted by-laws included in contract. The contract of a member of a fraternal benefit society to be bound by after-enacted by-laws, held to mean such by-laws as may be legally enacted either in the manner provided at the date when such member became such or in some other legal manner thereafter provided.
    9. Insurance, § 887

      —when subsequently enacted by-law admissible. In an action by the beneficiary named in a fraternal benefit certificate, conditioned on the conformance by the member with rules and usages of the society issuing the certificate “now in force or which may hereafter be adopted by the same,” the admission in evidence of a by-law adopted after the date when the member became such, held not erroneous.
    10. Evidence, § 287

      —when foundation for admission of documentary evidence need not be laid. Although there are certain requisites to be observed in the passage of a valid law, by-law or municipal ordinance, „ yet preliminary proof in detail that such requisites were observed in a particular case is not usual necessary to the competency of the law, by-law or ordinance, especially where the admission in evidence of such law, by-law or ordinance is not objected to on the ground of the want of such requisites, and where the officers and records whereby to prove the observance of such requisites are in court, so that if objection to the evidence is made on that ground, proof may readily be made as to the manner in which such law, by-law or ordinance was- passed, if thought necessary by the court.
    11. Insurance, § 741

      —when contract not governed by law of state in which benefit society originally incorporated. In an action to recover on a certificate of insurance issued by a fraternal benefit society, where plaintiff is the beneficiary named in such certificate, it is immaterial that a by-law of such society is void under the laws of Kentucky, although it appears that such society was originally incorporated in such State, it appearing that. subsequently such society was incorporated in Indiana, which Indiana corporation thereupon took over the obligations of the former Kentucky corporation, and thereafter issued in this State the certificate sued on after becoming qualified to business therein, and such society later incorrectly stated in its annual report to the insurance superintendent of this State that it was organized under the laws of Kentucky.
    12. Insurance, § 913

      —when submission of question of time of death of insured to jury substantial error. In an action to recover on a certificate of insurance issued by a fraternal benefit society, where plaintiff was the beneficiary named therein, the submission to the jury of the question of the time of the death of the insured held substantial error, where under the evidence insured was presumed to have died seven years after his disappearance, and where under a valid by-law of defendant society insured stood suspended one year after such disappearance, so as to preclude a recovery.
    13. Insurance, § 793

      —when limitation in by-law of time within which action may be brought not waived. In an action to recover on a certificate of insurance issued by a fraternal benefit society, where plaintiff was the beneficiary named in such certificate, which action was commenced more than seven years after the disappearance of insured, a by-law of defendant society limiting the time within which an action may be brought on such certificate- to one year after the death of insured, held not waived by. the passage of a later by-law providing that in ease of such disappearance the beneficiary named therein might continue payment of assessments for one year after such disappearance, and also by receiving from such beneficiary payment of such assessments thereunder, for the reason that such later by-law merely gave the beneficiary such right in order to avoid the suspension of insured for nonpayment of such assessments, and also because such beneficiary was under no obligation to make such payments, and did so at the risk of losing the amount so paid if insured did not reappear within that year.
    Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed with finding of facts.
    Opinion filed October 20, 1915.
    Carpenter & St. John and Ashcraft & Ashcraft, for appellant; Edwin M. Ashcraft, of counsel.

      Roy F. Hall, 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.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Lizzie Apitz, the appellee, was the wife of August F. Apitz and the beneficiary named in a benefit certificate issued to him December 29,1894, by the appellant, Supreme Lodge Knights and Ladies of Honor, a fraternal benefit association. August F. Apitz disappeared from his home November 7,1905, and this suit in assumpsit was brought on said certificate September 23,1913, and a declaration filed charging, in one count, his death on the date of his disappearance, in another count, at the end of seven years from that date, and in another count, that he had been unaccountably absent for more than seven years and therefore was presumed to be dead, and that the date of his death was within one year from November 7,1905. The defendant filed the general issue with notice of special defense under by-laws of the company limiting the time within which suit should be brought, and providing for suspension of a member who should disappear. A jury trial resulted in a general verdict for plaintiff for $1,480, and a special verdict finding that Apitz died within one year from November 7, 1905, the date of his disappearance. The court overruled a motion for judgment for defendant on the special verdict, and the defendant’s motion for a new trial, and after requiring plaintiff to remit excessive interest, rendered judgment for $1,045, from which this appeal is prosecuted.

The by-laws upon which the defense is grounded were as follows:

“Sec. 3. No suit shall be commenced, and no claim against this Order, based upon a Belief Fund Certificate issued to a member thereof, or upon membership, or alleged membership therein shall be paid after the expiration of one (1) year from the date of the death of such member, except in settlement of a judgment of a court in an action, or a suit commenced within one (1) year after the right of the claimant or beneficiary named in such Relief Fund Certificate, or who may be a beneficiary under the laws of this Order, shall accrue. All Relief Fund Certificates shall have printed or stamped on the face thereof, notice of the foregoing limitations. As to Relief Fund Certificates now in force, the publication and promulgation of this law shall be sufficient notice of said limitation.”
“Sec. 9. It shall be the duty of a Relief Fund member of the Order to notify the Secretary of his Lodge of any permanent change of residence, and, as far as practicable, to keep the Secretary advised of his post-office address. If any such member shall so fail, and shall change his residence or-usual place of abode, or shall disappear from the place or neighborhood in which he shall have usually resided, and his residence shall not be known to his family or to the Secretary of his Lodge, and cannot be ascertained after reasonably diligent inquiry and such disappearance shall be continued for one year, such member shall stand suspended as in case of suspension for the nonpayment of assessments, or dues, and the Financial Secretary of his Lodge shall not receive the assessment or dues from any person. If such member shall reappear and shall make known his place of abode, and shall desire to become reinstated, he may avail himself of the privilege of the reinstatement law of the Order by complying with the requirements of the same within the time required, as in case of the reinstatement of members suspended for nonpayment, of assessments or dues.”

There was a by-law in force providing if a member did not pay his assessments during the month for which it was made he should stand suspended, and if he died before being reinstated no moneys should be paid on the benefit certificate. There is no conflict of evidence. It appears that Apitz was of German birth and forty-one years of age when he disappeared; that he kept a small grocery store in Chicago; was in good health, mentally and physically, possessed of all his faculties. He had a wife and four children and appeared to be much attached to them. He had no business troubles so far as known and no reason is known, or even suggested, for his disappearance. He paid his November assessment four days before he disappeared, and on the day of his disappearance he went to the secretary of the lodge again and paid his assessments in advance for December and January, and on the same day visited other parties from whom he bought goods and paid them what he owed them. He was domestic in his habits; his wife and family lived in the building where he kept his little store and he was seldom away from them. He left home about noon and was never seen or heard from by his family after-wards. The last known of him was two or three hours after he left home, when he called on some one with whom he had dealings. Relatives of the family lived in Chicago and the vicinity and no friend or relative whom he would have been likely to visit lived elsewhere. The only indication that he intended to go away from home at all is furnished by the fact that he was settling with his creditors, and paying his benefit assessments in advance; but he was not dressed as he presumably would have been if he had intended an absence of a few days, and he probably had no considerable amount of money with him. There were many people interested in him and in his family, and intelligent, diligent search and inquiry seems to have been promptly and persistently made without producing any clue whatever, or disclosing any material facts, other than those above stated, to show where he was or why he left home. Appellee paid the benefit assessments for one year, or until and including November, 1906, when she was notified that they would not longer be received. The assessment for each month was payable on or before the last day of the month, therefore this assessment was payable November 1st, within a year of the date of the disappearance, but might have been deferred until November 30th, which was. a year and twenty-three days from that date. Under section 9 of the by-laws above quoted, Apitz could not be suspended before November 7th, and it is not claimed that the November assessment was paid after that date.

The first inquiry is, when did Apitz die? And we are of# the opinion that the special finding of the jury that he died within a year from the date of his disappearance cannot be sustained by the admitted facts. A similar question was before this court in Dickinson v. Donovan, 160 Ill. App. 195; and we affirmed a decree which rested on a finding that a person who had disappeared died before the expiration of the seven-year period. There was quite as much reason to suppose that he died during the first part of that period in the admitted facts of-that case as there is in this case. The Supreme Court reversed the judgment of this court and the decree of the Circuit Court, and remanded the cause to the Circuit Court with directions to proceed-on the presumption of death at the end of the seven-year period. (Donovan v. Major, 253 Ill. 179.) The court said: “The presumption of fact which will justify the conclusion of death before the lapse of the time required for the legal presumption must arise from evidence of circumstances tending to show death. That the absentee was exposed to some specific peril; that he sailed in a vessel which had never been heard from, though many months overdue; that hé was last seen as a passenger on an ocean steamer in mid ocean, at night, and was never seen or heard of afterwards, though diligent search was made the next morning; that he made threats to commit suicide prior to his disappearance; that the condition of his health was desperate; that he was afflicted with some disease likely to undermine his constitution.” While it is not to be presumed that the court named all the conditions that should be considered in determining whether death occurred before the expiration of the seven-year period, it must be taken as expressing a class of evidence that must be present to justify such a conclusion, and as holding that a finding of such earlier death cannot be supported on such evidence as this record discloses. We regard this case as controlling, and the reasons and authorities so fully discussed that we need not refer to other authorities.

We are of the opinion that under the admitted facts it must be assumed that Apitz died November 7,1912, seven years from- the date of his disappearance, and the case considered the same as if there was positive evidence that he died on that date. The trial court instructed the jury that if Apitz did not die within one year from the date of his disappearance their verdict should be for the defendant, which instruction was in our opinion correct as applied to the admitted facts. Apitz disappeared November 7, 1905, and stood suspended after November 7, 1906, under section 9 of the by-laws; therefore there can be no recovery in this case if that by-law applies, unless it be held that appellant by accepting the assessment for November, 1906, waived its provisions; and we are of the opinion that the assessment being payable before the expiration of one year, appellant did not by accepting it waive any of its rights under that by-law.

But it is- urged that the by-law does not apply because it was enacted in September, 1905, several years after the certificate was issued to Apitz. His contract was conditioned upon his conforming “in all respects to the laws, rules and usages of the Order now in force or which may hereafter be adopted by the same,” and provided that in case of his suspension from the Order he should forfeit the rights of himself and his family to all benefits and privileges therein. After enacted by-laws bind members of fraternal benefit societies when the contract so provides, and their contracts may be changed by such subsequent by-laws. Royal Arcanum v. McKnight, 238 Ill. 349, and cases there cited. We see no reason for holding the by-law unreasonable. A subsequently enacted by-law forfeiting claims for death of a member of a benefit society from suicide was held binding and reasonable in Supreme Lodge K. of P. v. Kutscher, 179 Ill. 340; and the law reaffirmed in Murphy v. Nowak, 223 Ill. 301.

Appellee claims the court erred in admitting this by-law in evidence over her objection, but no cross-error is assigned. Appellant introduced in evidence a printed pamphlet, containing this by-law, proved to be one of a great number of pamphlets in general circulation among its members; and also made proof by the certificate of its secretary, and also by a copy examined and sworn by a credible witness, in attempted compliance with sections 15, 16 and 18 of our statute on evidence and depositions (J. & A. ¶¶ 5532, 5533, 5535).

But appellee says that the clause in the application for membership binding Apitz by after enacted bylaws must be read in connection with a provision in the then existing by-laws, that the by-laws could be amended only at a regular meeting of the Supreme Lodge by a vote of two-thirds of its members present; therefore Apitz’s contract was only to be bound by future by-laws enacted in that manner, i. e., that the contract may be construed to give appellant authority to repeal existing by-laws or enact new ones affecting its obligation to the insured as it existed at the time of the contract, but that it cannot be construed to authorize appellant to change a by-law providing the manner in which by-laws are to be enacted; that this by-law is a part of appellant’s defense and the burden was on it not only to prove its enactment, but also to prove that it was enacted in the manner provided at the time the contract was made, and there being no evidence that it was passed by two-thirds majority it was not admissible as a defense. The Appellate Court of the Third District in Supreme Lodge K. of P. v. Kutscher, 72 Ill. App. 462, rendered a decision and used language in reference to a future enacted by-law that lends support to appellee’s contention here. But that case was reversed by the Supreme Court in Supreme Lodge K. of P. v. Kutscher, 179 Ill. 340, before cited, and it was there held that a benefit society could not by a by-law or by its “constitution,” which has only the force and effect of a by-law, take away the inherent power to, in the future, adopt such other by-laws as the charter permits. We think it follows on the authority of that case and the authorities cited by that court in its opinion that the contract of a member, to be bound by future enacted by-laws, means such by-laws as may be legally enacted, whether in the manner provided at the date of his membership or in some other legal manner thereafter provided. The court did not err in admitting the by-laws in question in evidence.

But if the law should be as appellee contends, still she should not be permitted to here maintain her judgment merely because there was no proof offered that the by-law in question was passed by a two-thirds vote. That question was not raised in the trial court. No objection to the introduction of the by-laws in evidence was made on that ground. Officers and records of appellant were present at the trial, and had the question been raised proof could have been readily produced, if the trial court thought it necessary, of the manner in which the by-law was enacted. There is nothing in the record to indicate any change in the requirements for passing valid by-laws after the date of Apitz’s contract, and the by-law in question was quite likely passed in the manner then required. There are always certain requisites to the passing of a valid law, by-law or municipal ordinance, but preliminary proof in detail that they were observed is not usually necessary to their introduction in evidence

Appellee claims that appellant is a Kentucky corporation and that under the law of Kentucky this by-law is void. There appears to haVe been an organization under a private act of the Legislature of Kentucky in 1878. In 1885 a charter was obtained under the laws of Missouri. In 1891 (before Apitz became a member), a charter was obtained in Indiana and the company incorporated in Indiana took over the liabilities and obligations of the Kentucky and Missouri corporations, and is the corporation that issued the certificate in question to Apitz, and the one doing business in Illinois ever since that time, although in its annual statement to the Insurance Superintendent of Illinois for the year 1912, it states, by inadvertance or otherwise, that it was organized under the laws of the State of Kentucky.

We are of the opinion that the substantial error in the trial was in submitting the question of the time of the death of Apitz to the jury; that under the admitted facts he died at the end of seven years from the date of his disappearance, and' under section 9 of the bylaws of appellant recovery was precluded.

Appellant also urges that the court erred in refusing to enter judgment for the defendant on the special verdict under section 3 of its by-laws, above quoted, limiting the time in which action can be brought to one year from the. date of death; and appellee answers that appellant by enacting section 9 of its by-laws, and receiving assessments for one year after the date of disappearance, waived the provisions of section 3, because it received assessments after the death of the member if he died within a year, as the jury found he did; and that appellant had knowledge when it received the assessment of the fact of his disappearance. We do not see how such a construction can be reasonably adopted. The beneficiary was under no obligation to continue the payment of assessments, but was given the option to do so for one year and prevent for that period of time the suspension of the member for nonpayment of dues, at the risk of losing the amount so paid if the member was not found within that year.

Holding as we do that, there can be no recovery under the admitted facts, the judgment is reversed.

Reversed with finding of facts.

Finding of facts. We find from the evidence that August F. Apitz died November 7, 1912; that under the by-laws of appellant to which the certificate here sued on was subject, he stood suspended November 7, 1906; and that appellee has no cause of action upon said certificate.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Edward Doubet et al., Appellees, v. Peter Doubet, Appellant.
    Gen. No. 6,040.
    1. Estoppel, § 66

      —when minor heirs not estopped by act of administrator from insisting that land received by heir was as an advancement. In an action by administrators to recover from a son of intestate the value of land transferred to him by intestate in his lifetime, such value being expressed in the deed, under a' written agreement whereby he agreed that such amount should be -regarded as an advancement, and should be deducted from his distributive share of intestate’s estate, and where the trial court required plaintiffs to elect on what ground they would proceed, as between the theory of an advancement and that of a debt due to the estate, minor heirs of intestate, parties to the proceeding, held not bound by such election nor precluded thereby from insisting on their demand that the amount received by defendant should be deducted from his distributive share of the estate.
    2. Judgment, § 482

      —when judgment in action of partition not res judicata as to distributees making claim for an advancement made to heir. Sections 4-7 of the Despent Act (J. & A. ¶¶ 4205-4208), relating to advancements, make no such distinction between advancements made in land and those made in personalty as to estop administrators and distributees from making claim in the Probate Court to recover the amount of an advancement in land, the value of which is expressed in the deed, nor is such action res adjudicate, by reason of the fact that owing to such a distinction the question of such advancement should have been determined in a partition proceeding to which plaintiffs were parties, but in which such question was not decided.
    3. Advancements, § 13

      —when immaterial whether contract provides for advancement or debt. In an action by administrators to recover on a written contract whereby, in consideration of the transfer of land to defendant by intestate in his lifetime, defendant agreed that the amount expressed in the deed as the value of the land transferred should be deemed an advancement, and such amount deducted from defendant’s share in intestate’s estate, it is immaterial whether the claim sought to be enforced be deemed an advancement or as a debt due the estate, as the result is the same in either case.
    4. Advancements, § 13

      —what power father has to contract with child regarding inheritance. Although section 7 of the Descent Act (J. & A. ¶ 4208) provides that no gift or grant shall be deemed an advancement unless so expressed or charged in writing, there is nothing in this provision or in any other provision of law applied to advancements which prevents a father from contracting with a son in regard to the son’s inheritance.
    5. Advancements, § 13

      —power of heir to malee contract with ancestor regarding distributive share. An heir or distributee may make a valid and enforceable contract with an ancestor as to the participation of such heir or distributee in the estate of the ancestor.
    6. Advancements, § 13

      —what are proper subjects of contract. Estates in expectancy are proper subjects of contract, and such contracts, as well as contracts between parent and child as to the expectancy of the child in the estate of the parent, will be enforced.
    7. Advancements, § 11

      —what is effect of contract for an advancement. Where a son receives from a father a parcel of land of a value- named in the deed, on the agreement that the gift shall be deemed an advancement, and the amount named in the deed deducted from the son’s distributive share in the father’s estate, such contract is valid, and is based on a valid consideration and fixes the rights of such son, and the theory of advancements does not operate either to relieve the administrators of such father from enforcing the contract, or to enable the son to prevent its enforcement.
    8. Advancements, § 15

      —when contract betioeen intestate and son construed to give Probate Oourt jurisdiction. Where a contract between an intestate and his son whereby the son received from intestate a transfer of land, the value of which was expressed in the deed, and which contract provided that the amount so expressed should be deemed an advancement and should be deducted from the “distributive share” of such son in intestate’s estate, such a contract can have no other meaning than that the matter should be adjusted in the Probate Court which has jurisdiction, ordinarily exclusive, of the distribution of personal estates, and not in chancery proceedings to which heirs, as such, must ordinarily resort to adjust their differences.
    9. Election of remedies, § 11

      —when election of wrong remedy by administrator not fatal. In an action by administrators to recover the amount of an advancement to a son of intestate, where on the trial in the Circuit Court of an appeal from the County Court plaintiffs were required to elect on what ground they would proceed, as between the theory of an advancement and that of a debt due the estate, the demand sought to be enforced does not fail if plaintiffs made a mistake in making such election, since the Circuit Court, in trying the appeal, was sitting with substantially the same jurisdiction as^ the Probate Court, and as in such cases it is not the policy of the law to embarrass trials with technical pleadings, so that if correct conclusions were arrived at on competent evidence, it is unimportant whether either litigant or court were accurate in the reasoning which led to such conclusion.
    10. Infants, § 25

      —when minors entitled to protection of court. Where the rights of minors are involved as parties to an action, such rights must be protected although technical pleadings are required in the form of action brought, and although if such minors were adults, they could have no relief owing to defects in such pleadings.
    11. New trial, § 5

      —when should be granted. A new trial should be granted where it appears that a party has been deprived of a jury trial by some mistake in the trial of a case arising from a wrong theory, or where such party by reason of such mistake has been put to disadvantage in the introduction of evidence.
    12. Jury, § 10

      —when administrator not entitled to jury trial on appeal from Probate Court. No party to a proceeding brought in the Probate Court is entitled to a jury trial in the Circuit Court on appeal from the decree of the Probate Court.
    13. New trial, § 5

      —when should not be granted. In an action originally commenced in the Probate Court by administrators to recover from a son of intestate the value of certain land transferred to such son, such value being expressed in the deed, under an agreement that it should be deemed an advancement in the amount named in such deed, which amount should be deducted from defendant’s distributive share in intestate’s estate, and which action was subsequently tried on appeal in the Circuit Court, the question to be determined by the Probate Court in the first instance, and by the Circuit Court on appeal, was whether defendant’s distributive share should be diminished by the amount agreed upon in the contract, and any defense to such contract should have been made at the hearing, and a new trial should not be granted, notwithstanding the fact that the Circuit Court required plaintiffs to elect on what ground they would proceed, as between the theory of an advancement or of a debt due the estate, and plaintiffs may have made a wrong election as between the two theories.
    14. Production of books and papers, § 5

      —when production of copy of instrument sued on may be required. In an action grounded on a written instrument, defendant has the right either to call for a copy of the instrument sued on before the trial, or if on the proof of the document it appears to defendant that his defense called for proceedings and evidence differing from those before supposed necessary, defendant may ask for time and opportunity to present such defense.
    15. Executors and administrators, § 496

      —when evidence to show signing of contract. In an action by - administrator's to enforce a written obligation alleged to have been signed by defendant wherein defendant, in consideration of a transfer of certain land by intestate agreed that the amount expressed in the deed to be the value of the land transferred should be deemed an advancement and deducted from defendant’s distributive share of intestate’s estate, a finding that defendant signed the writing held not erroneous, although the original writing sued on was lost and not produced at the trial, it appearing that after the death of intestate defendant admitted he owed the estate the amount sued for, and had signed and delivered to intestate in his lifetime a writing exactly like that given by a brother to intestate in a similar transaction, except that the amount named in the deed as the value of the land transferred was different from that named in the deed to such brother, from which writing given by such brother the contents of the writing signed by defendant was ascertained.
    16. Witnesses, § 132

      —when party defendant not competent to dewy signature of contract with decedent. In an action by administrators to recover a sum alleged to be due to intestate’s estate from defendant arising out of a written contract made with defendant in his lifetime, the exclusion of defendant’s testimony in his own behalf that he never signed the contract sued upon held not erroneous, defendant not being a competent witness in his own behalf as to transactions with intestate before intestate’s death.

      17. Evidence, § 44

      —when no presumption of release because obligation not found. Where a father enters into a written contract in his lifetime with a son which imposes a burden on the son, the fact that the writing evidencing the obligation was not found among the father’s papers at his death raises no presumption that deceased destroyed the writing with intention to release the son from the obligation imposed by the writing, although the father is shown to have destroyed a will he once made, and dies intestate, nor will the loss of such a writing or the failure to account for such loss work a release of such obligation.
    18. Appeal and error, § 1488

      —when admission of incompetent testimony not error. A court trying a case without a jury can hardly err in the admission of incompetent testimony.
    19. Evidence, § 125

      —when secondary evidence admissible. In an action grounded on a written instrument where it is conceded that the writing sued on is not in existence, secondary evidence thereof is competent.
    20. Appeal and error, § 1240

      —when party cannot complain of Unnecessary written pleadings. In an action where written pleadings are not required, a party cannot be said to have been prejudiced by unnecessary written pleadings where such party was mainly "responsible for getting such pleadings into the case.
    Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 20, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Judson Starr, for appellant.
    Glen Cameron, Sheen & Galbraith and Dan R. Sheen, for appellees.

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

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

      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.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Joseph Doubet, the owner of a large real and personal estate on April 2,1888, executed a warranty deed in the usual form (his wife joining therein), of an eighty-acre tract of land to his son Peter Doubet, the appellant, for an expressed consideration of $4,500, “and other good and valuable considerations,” the receipt of which, though no money was paid, was in the deed acknowledged. Following a form he had used with another son, it is claimed he took from Peter a writing as follows:

“Received of my father, Joseph Doubet, the sum of Four Thousand Five Hundred ($4,500) Dollars as an advancement on my share of his estate, and I hereby agree that in settlement of his estate by an administrator or executor the said sum of Four Thousand Five Hundred ($4,500) Dollars shall be by him charged against me as such advancement and said amount shall be deducted from my distributive share, but no interest shall be counted thereon.
(Signed) Peter Doubet.”

This deed was kept in the grantor’s possession for some time, but was delivered and recorded before his death. Peter was in possession of the land at and before the time of making the deed, and always remained in possession. No question arises here of the validity of the deed, or of its delivery in the lifetime of the grantor.

Joseph Doubet died intestate December 19,1909, and administration of his estate is pending in the Probate Court of Peoria county. In a final report filed in December, 1911, his administrators, Edward Doubet and Ida Mitchell, the appellees, inserted the following item:

“Items of receipts. Amount advanced to Peter Doubet for land conveyed by Joseph Doubet to said Peter Doubet, or to amount owed by said Peter Doubet to Joseph Doubet for land conveyed by Joseph Doubet to said Peter Doubet in lifetime of said Joseph Doubet...........$4,500.00. “12/18/11. Peter Doubet owes to the estate of said Joseph Doubet the sum of $2,739.40 after allowing him his full share of said estate, which amount the Adms. of said estate ask the court to order said Peter Doubet to pay back.”

The distributees of the estate were duly notified, and appellant appeared in the Probate Court and contested that item of the report. The matter was heard, and the court found that Peter Doubet had received from the administrators in cash, on his distributive share, $6,500, and had filed a refunding bond conditioned that he would refund to the estate any portion thereof to which he was not entitled, or that would be needed for the proper settlement of the estate; that he is indebted to the estate in the sum of $4,500, as set forth in the report. And ordered that he pay to the administrators the difference between that sum and his final distributive share of said estate, and approved the report.

Appellant appealed to the Circuit Court where the parties appeared. Some of the distributees were minors and appeared by guardian ad litem. The administrators filed what is called a bill of particulars as follows:

“Peter Doubet
To Estate of Joseph Doubet, deceased.
“To advancement of the East Half of the Southwest Quarter of Section 12 in Logan Township, Peoria County, Illinois, at the fixed and agreed valuation of...............$4,500.00
“As per written instrument signed by said Peter Doubet and dated on or about April 2,1888, and by said Peter Doubet delivered to said Joseph Doubet, deceased.
“Peter Doubet
To Estate of Joseph Doubet, Dr. “12/9/07. To amount due from Peter Doubet to Joseph Doubet for the East Half of the Southwest Quarter of Section 12 in Logan Township, Peoria County, Illinois.........$4,500.00.”

There was much pleading and much contest about the pleadings, though this is a statutory proceeding, in which written pleadings are not required. The court at the instance of appellant compelled the administrators to elect and say whether they were proceeding on the theory of an advancement to Peter Donbet, or a debt due from him to the estate, and they said they would proceed on the theory of an advancement. The court heard much evidence as to the transaction, the guardian ad litem protesting that the minors were entitled, as distributees, to demand that any debt from appellant to the estate should be deducted from his distributive share, and were not at all precluded from insisting on their demand by any mistake of the administrators in naming the transaction from which the indebtedness arose; and in this contention he was right.

Among other things, in support of his objection to this item of the report, appellant claimed that the whole question was res adjudicata by reason of a partition proceeding wherein the heirs, who were the same persons as the distributees appearing in this case, had procured the sale of the real estate of which Joseph Doubet died seized, and the distribution of the proceeds among them. The eighty acres here in question were not sought to be partitioned, but it is assumed that any question of advancement of that eighty acres should have been determined in that partition proceeding. The cause was referred to the master in chancery to take testimony and report his conclusions of law and fact on this question of res adjudicata, which he did, reporting that the matters here in question were not passed upon or necessarily involved, in the partition proceedings ; that the advancement alleged was to be adjusted in money upon the settlement of the estate; that the personal estate has been at all. times sufficient to enable the Probate Court to adjust that matter between the distributees; that there was no reason for the court’s adjusting that matter in the partition proceeding, and it did not in fact assume to take jurisdiction of the question, and that the objection of res adjudicata is not well taken. The question whether there was in fact an advancement, or debt, was not submitted to or passed upon by the master.

The chancellor, after hearing much evidence, entered an order finding that the order of the Probate Court, “from which this appeal is taken, should be and is hereby confirmed, and the final report of said administrators made therein, should be and hereby is affirmed. The court further finds that the sum of $4,500.00 objected to by Peter Doubet herein, was and is a proper charge against his share of the estate of Joseph Doubet, deceased, and a proper credit in favor of said estate, in said final report, as shown herein, as filed and approved by said estate, and in the judgment of the court the said $4,500.00 was in the nature of an advancement made by deed by Joseph Doubet, the father of said Peter Doubet, many years before his death, to said Peter Doubet, of 80 acres of land, at a fixed valuation of $4,500.00 and was so received as an advancement of such valuation by said Peter Doubet, and has been so held and enjoyed by him ever since.” And certified the findings to the Probate Court for further proceedings, from which order this appeal is prosecuted.

Appellant presents an exhaustive brief on the law of advancement, claiming that our statute (sections 4 to 7 of the Descent Act, J. & A. Stats., vol. 2, ft 4205 et seq.) so distinguishes between advancements in land and in personalty that the distinction must be observed in settlement of estates, and an advancement in land adjusted in the partition of real estate or other proceedings in which the heirs as distinguished from the distributees are parties; and if the heir receiving the advancement has sufficient interest in the remaining real estate to enable a court of chancery in a partition proceeding to adjust the matter there, it must be done; and a failure to procure that action of the court in a partition proceeding estops the heirs, as distributees, from asking an adjustment in the settlement of the personal estate in the Probate Court. There had been a partition proceeding, and appellant’s share of the proceeds of that was sufficient to meet the demand upon him, therefore appellant says: “It is res- adjudicates whether we consider it as a case of mistaken defense or whether we consider it as a case where a defense might have been made and was not made. ’ ’ He also says the question is undetermined in this State and asks us to construe the statute. It appears that certain of the heirs filed a cross-bill, claiming that there had been advancements to Peter and other children and asking relief, and that the cross-bill was dismissed by the court without prejudice; and that they then filed an original bill concerning these matters to which a demurrer was sustained and the bill dismissed without prejudice, and that decree affirmed on appeal to this court in Falor v. Doubet, 164 Ill. App. 433. It is contended that the subject-matter here now is an advancement in land, and, because of something in those partition proceedings, the administrator and distributees are estopped from making this claim in the Probate Court. We do not see any good ground for this contention, and we are unable to see the application of the great number of decisions of this and other jurisdictions cited by appellant on the law governing advancements. It does not seem to us very important whether the transaction in question here is or is not an advancement in land. Appellant in one part of his brief argues that it was not an advancement, and that the evidence relied on by appellees, including the deed, shows it was not an advancement, but if any obligation it was a debt. We are inclined to that view of the situation, but do not so hold because in our opinion whatever may be the name of the transaction the same result is reached. It is true that under our statute no grant is deemed an advancement unless so expressed or charged in writing by the intestate, or so acknowledged by the child, and questions often arise as to what writing is sufficient. But there is nothing in this provision of law, or any other provision applied to advancements, that prevents a father from contracting with his son in relation to his inheritance. It is a general rule that an heir or distributee may make a valid enforceable contract with an ancestor as to his participation in the estate. 14 Cyc. 91. The courts of this State have always been liberal in holding that estates in expectancy are appropriate subjects of contract, and in enforcing such contracts, and contracts between parent and child as to the expectancy of the child in the parent’s estate. Bolin v. Bolin, 245 Ill. 613, and earlier Illinois cases there cited. The rights of appellant are fixed by the contract he signed, in which he agreed that the personal representative (adihinistrator or executor) of his father in the settlement of the estate should charge him $4,500, and deduct it from his distributive share of the estate. This was a valid agreement based on a valuable consideration, and we fail to see anything in the doctrine of advancements that relieves the administrators of the duty of doing exactly what appellant contracted they should do, or that enables appellant to prevent their doing it. We do not see how the heirs, as such, in chancery proceedings, to which they must ordinarily resort to adjust their differences, could well call upon appellant to settle the matter that he had expressly contracted should be adjusted in the administration of the personal estate; and his contract that $4,500 should be taken from his share as distributee can have no other meaning than that the matter should be adjusted in the Probate Court which has jurisdiction, and ordinarily exclusive jurisdiction, of the distribution of personal estates. In affirming the decree dismissing the bill in Falor v. Doubet, sufra, this court, among other reasons, stated that the matter could be adjusted in the Probate Court, and it is much clearer that it can and must be there adjusted on the facts presented by this record than it was on the facts alleged in the bill which the court was then considering.

But it is assumed by appellant, and argued with great confidence, that when he succeeded on the trial in the Circuit Court in getting the administrators to name their claim, and state their reasons for asking a deduction from his distributive share, that their demand failed if they made a mistake in so doing. We do not take that view of the case. The Circuit Court was sitting with substantially the same powers and duties as was the Probate Court in hearing the matter. It is not the policy of the law to embarrass such trials with technical pleadings. The hearing is before the court without a jury, and the purpose of the trial is to arrive at correct conclusions and results. If such results are reached on competent evidence, it is not important whether either the litigant or the court was accurate in the process of reasoning leading to the conclusion. Even where technical pleadings are required, the rights of minors, parties to the suit, should be protected, even though they could not have relief, if adults, because of some, defect in the pleadings. Stark v. Brown, 101 Ill. 395; Mason v. Truitt, 257 Ill. 18.

It may well be, if, because of some mistake in the trial of a case arising from a wrong theory, a party is deprived of the right of trial by jury, or put to a disadvantage in introduction of evidence, that he should be allowed another trial. But whether the name of the claim here is advancement or debt, appellant was not entitled to a jury trial. Heward v. Slagle, 52 Ill. 336; Martin v. Martin, 170 Ill. 18; Maynard v. Richards, 166 Ill. 466; Coffey v. Coffey, 179 Ill. 283. It was the duty of the Probate Court in the first instance, and of the Circuit Court on appeal to, without a jury, determine whether there should be a deduction from appellant ’s distributive share of the estate. No question is raised here of the action of the court in referring one question in the case to the master in chancery, and we have considered the case on the evidence, which was all before the court, without considering what, if any, effect the findings of the master should have in a trial of this kind. The question was whether appellant’s distributive share should be diminished by the amount agreed in his contract, and if there was any defense it should have been made on the hearing, whether the theory of the administrators as to the name of their claim was right or wrong. The bill of particulars on which the Circuit Court tried the case, and that part of it on which appellant relies in saying he was defending only an advancement in land, stated that it was, as per written instrument, signed by said Peter Doubet and delivered by him to his father. He had the right to call for a copy of the instrument before entering on the trial, and though the instrument itself was lost, the administrators had knowledge of its contents and could have furnished a copy. Appellant, failing to do this, could when the instrument was proven, if in his opinion a defense to his promise there made called for different proceedings and evidence from what he before supposed necessary, have asked an opportunity, and time, to present such defense, which would no doubt have been granted. But he did neither. It is argued by appellant that it was not proven that he signed the writing in question. The testimony offered by appellee showed that appellant after the death of his father admitted that he owed the estate $4,500 on account of this transaction; that he had signed and given his father a writing exactly like the one his brother Joe gave his father, except the amount in his (appellant’s) was $4,500 and in Joe’s it was $4,000. This is the statement from which the contents of the writing is found. The paper signed by appellant was not discovered after the death of the father. That it had not been paid or settled in his lifetime is shown by appellant’s statement after his death that he still owed that amount. But it is argued that the record does not sustain the finding that appellant made those admissions; that the evidence of them is contradictory, in conflict with pleadings of the witnesses as parties to the prior suits mentioned, and for other reasons should not be believed; and that the court erred in not permitting appellant to testify that he signed no such paper when his deed was delivered.

We are satisfied from a reading of the record that the court did not err in finding that the writing was signed by appellant. We see no room for contention that appellant was a competent witness in his own behalf as to the transaction in the lifetime of his father. Appellant argues that the fact that the paper was not found among the papers of deceased gives rise to the presumption that deceased in his lifetime destroyed it, and urges the fact that he is shown to have destroyed a will he had made, in support of that presumption, and argues the case on the theory that the destruction of this paper by the father would release appellant from liability thereon. We do not so understand it. It was a contract imposing a burden on appellant, and we do not see how the loss of the writing evidencing the contract and failure to account for such loss could work a release of his obligation.

Some objection is made to the action of the court in ruling on the evidence, other than above noted; but none was rejected that would have been of material benefit to the appellant, and in a hearing before the court, without a jury, he can hardly err in admitting incompetent evidence. It is said there was no ground for admission of secondary evidence of the writing relied on. It was conceded by everybody on the trial that it was not in existence, and we see no reason why its contents should not have been proven in the way it was proven.

Appellant’s case does not seem to have been prejudiced by unnecessary written pleadings, and if it was he was mostly responsible for getting them into the case. The order could not have been different from that made by the court, therefore the order and judgment is affirmed.

Affirmed.


text:
    Henry Mullen, Defendant in Error, v. W. O. Johnson, Receiver, Plaintiff in Error.
    Gen. No. 6,069.
    (Not to be reported in full.)
    Error to the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Henry Mullen, plaintiff, against W. O. Johnson, receiver, defendant, in the Circuit Court of Lake county, to recover for personal injuries alleged to have been sustained by plaintiff as a result of a collision between a covered wagon which plaintiff was driving, and an electric street car of a street railroad company of which defendant was receiver. To reverse a judgment for plaintiff for $1,500, defendant prosecutes this writ of error.
    On the 5th day of August, 1912, plaintiff was driving a covered wagon with a load of cut flowers on a public highway from the City of Lake Forest, Illinois, north to the City of Waukegan, and while crossing the double tracks of the Chicago & Milwaukee Electric Railroad Company, of which company the defendant was receiver, the hind wheel of his wagon was struck by a car running north on the east track and he claims to have been injured by the shock of the collision.
    The plaintiff was a man about forty-five years old, in the employ of a florist and had been over this highway many times and was familiar with the location and operation of cars there. He had been driving north on a highway that ran a little distance away from the electric railroad, perhaps forty-five feet. At a point not far from where the accident happened the car tracks came on to the public street at a place where it deflects slightly to the east. It was natural and usual for drivers of vehicles to cross the car tracks to get on the east side of them at about this point where the road deflects, and there was a portion of the road worn' by travel indicating where teams had often crossed. The evidence is conflicting whether plaintiff crossed at the beaten path or drove along the west track for some distance and then abruptly turned and crossed the east track ahead of the approaching car. The view was unobstructed for several hundred feet from the place of the accident.
    The case has been twice tried. Plaintiff first filed a declaration of one count charging in general terms that defendant was negligent in that the operation of the car in question was careless and improper, to which defendant pleaded the general issue. At the close of all the evidence a juror was withdrawn and the case was continued, after which plaintiff filed another count charging wilful, wanton and malicious injury. A second jury trial followed, at which the jury found defendant guilty as to the first count and not guilty as to the additional count. Motions by defendant for a new trial and in arrest of judgment were overruled.
    Bull & Johnson and Charles H. King, for plaintiff in error.
    Chipman & Jackson, for defendant in error.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Abstract of the Decision.

1. Street railroads, § 97 —when driver crossing in front of car guilty of contributory negligence. One who is driving a vehicle in a public highway parallel to a street car track and who suddenly turns upon the track without looking to see if a car is approaching is not in the exercise of ordinary care, and in case that the vehicle is struck by a car such driver is guilty of contributory negligence.

2. Street railroads, § 91 —what care drivers of vehicles must exercise. Drivers of vehicles have not equal rights in the highway with street cars so that such drivers may drive on or across street car tracks between street intersections, knowing that a collision will be inevitable unless the car is stopped, and may not rely on the motorman of such car to prevent such collision by stopping his car.,

3. Street railroads, § 64 —what care required in operation of car at crossings. A street car should be operated with more care at places habitually used by the public for crossing the track than at places not customarily used for crossing.

4. Street railroads, § 63 —what degree of care required im, operation of car at place other than usual crossing. A motorman of a street car who sees the driver of a vehicle proceeding along the track without crossing at the usual place may assume, in the exercise of due care, that such driver does not intend to cross, and therefore not hold his car in such good control as if he saw such driver approaching such crossing.

5. Street railroads, § 111 —when motorman presumed to know possible presence of vehicles at crossing. A motorman operating a street car in a public highway who is approaching a usual place of crossing is presumed to know that there may be vehicles crossing at such point, and therefore, if he sees an approaching vehicle, be bound to keep his car in better control than at other points.

6. Street railroads, § 73 —when signals necessary. In case of a collision between an electric street car and a,vehicle, the question whether the motorman gave signals or hot is only important where the collision took place at a street intersection where the motorman is presumed to know that such vehicles might be crossing, or where such signals are necessary in the exercise of due care in order to give warning of the approach of his car to a vehicle .ahead of the car which, without such warning, might turn upon the track, such signals being unnecessary at other times.

7. Appeal and error, $ 1778 —when case mil not be reversed without remanding because of insufficiency of proof. In an action to recover for personal injuries alleged to have been sustained by reason of a collision between a wagon which plaintiff was driving and an electric car, due to defendant’s negligence, where the evidence of plaintiff was vague and contradictory and tended to show contributory negligence in that plaintiff attempted to cross the track in front of the car at a point other than the usual crossing, evidence held insufficient to warrant the Appellate Court in reversing without remanding.

8. Street railroads, § 131 —when evidence insufficient to establish wilful and wanton conduct in operation. In an action to recover for personal injuries sustained as a result of a collision between a wagon which plaintiff was driving and an electric car, due to defendant’s alleged negligence, where one of the counts of plaintiff charged wilful, wanton and malicious injury in the operation of the car in question, a verdict of not guilty as to this count held right, there being no evidence of wilful and wanton conduct in running the car at a high rate of speed.

9. Negligence, § 68 —when one failing to employ all reasonable means to avoid injury may not recover. In an action to recover for personal injuries alleged to be due to defendant’s negligence, plaintiff cannot recover if he was negligent in falling to employ all reasonable means to avoid the injury.

10. Street railroads, § 131 —when evidence insufficient to warrant finding of lack of contributory negligence. In an action to recover for personal injuries sustained as a result of a collision between a wagon which plaintiff was driving and an electric car, due to defendant’s alleged negligence, evidence held insufficient to warrant a finding that plaintiff was at the time of the accident in the exercise of due care. "

11. Street railroads, § 131 —when evidence insufficient to sustain finding of negligence. In an action to recover for personal injuries sustained as a result of a collision between a wagon which plaintiff was driving and an electric car, alleged to be due to defendant’s negligence, evidence held insufficient to sustain a finding that defendant was negligent.


text:
    Sholl Brothers, Defendants in Error, v. Peoria & Pekin Union Railway Company, Plaintiff in Error.
    Gen. No. 6,075.
    1. Evidence, § 351

      —when evidence admissible to ascertain intent of parties to contract. Evidence of the construction placed on a written contract by the parties, when competent, is a valuable aid in ascertaining the intention of such parties, but when competent its use is limited to ascertaining such intention, and such evidence cannot be used to force a new and different meaning into the contract.
    2. Contracts, § 187

      —when construction by parties adopted. Where the terms of an agreement are in any respect doubtful or uncertain, if the parties thereto have by their own conduct placed thereon a reasonable construction, the courts will adopt such construction in litigation concerning it.
    3. Evidence, § 351

      —when evidence not admissible in aid of construction of contract. Where a contract is clear and unambiguous and there is no doubt as to the identity of the subject-matter to which it relates, no extrinsic evidence is competent in aid of construction.

      4. Evidence, § 156

      —when statement of attorney at trial admission of uncertainty of contract. In an action involving the construction of a written contract, a statement of counsel that it is the duty of the court in construing the contract to look to facts dehors the contract in order to ascertain the intention of the parties, and the necessity for such a statement, is a virtual admission that there is uncertainty in the language of such contract as to require external aid to ascertain its meaning.
    5. Contracts, § 8

      —when contract not clear and unambiguous. In a bill to enforce a contract whereby plaintiff contracted with defendant railroad company to construct and operate on plaintiff’s land a branch track from its main line to plaintiff’s coal mine, defendant to have the right to use such track for all purposes and to serve all industries “or for the purpose of making connections with any other industries except coal mine” which might thereafter be located in the vicinity reached by such track, contract held not clear and unambiguous in that it admitted of conflicting constructions equally plausible and depending in each ease on the consideration of extrinsic circumstances.
    6. Contracts, § 188

      —when construction placed by parties on ambiguous contract controlling. In a bill to-enforce an ambiguous contract whereby plaintiff contracted with defendant railroad company to construct and operate on plaintiff’s land a branch track to its coal mine, wherein defendant was permitted the use of the track for all purposes except “coal mine,” the fact that the parties had for some time placed a construction thereon which precluded defendant from transporting over such track in either direction any coal not mined by plaintiff, held to control in determining the meaning of the contract.
    7. Injunction, § 245

      —when may be violated with impunity with, consent of party procuring. Where only private interests are concerned, neither contracts of parties nor judgments nor decrees of courts stand in the way of any action taken by and with the consent of all parties interested, so that where an injunction has been granted restraining the transportation of certain coal over a railroad, no danger need be apprehended by the party restrained if in the future it transports such coal with the consent of the party procuring the injunction, although by such transportation such injunction may be technically violated.
    8. Railroads, § 355

      —when contract limiting me of railroad track void. Where a particular railroad track in question is a part of a public railroad, any contract limiting the public use thereof is void.
    9. Railroads, § 194

      —when contracts for switch tracks over private property valid. Owners of private property may contract with railroad corporations for switch tracks to be laid over their own private property without submitting such tracks to burdens imposed on the main lines of such railroads.
    10. Railroads, § 194

      —token no right to regulate private railroads under Constitution. Section 12 of article XI, of the Constitution, declaring that public railroads are public highways and providing that they shall be free to all persons for the transportation of their persons and property thereon under such regulations as may be prescribed by law, applies only to railroads constructed for public use, and only such are intended to be regulated thereby, the Constitution having no reference to railroads constructed for private use.
    11. Railroads, § 194

      —when private railroad may become subject to constitutional provisions. Although a railroad may be originally constructed for private use and not within the regulation of section 12, article XI, of the Constitution, regulating public railroads, yet where the contract under which it was constructed provides for other uses and where the use of such private railroad is from time to time extended by connections so as to make other and further use of it, it .is a fair question whether in such extended operation it has not become part of a public highway, and within the regulation of the Constitution as part of a public railroad.
    12. Railroads, § 194

      —what constitutes a private railroad. In a bill to enforce a contract whereby plaintiff contracted with defendant, a railroad company, to construct and operate a branch track from its main line to plaintiff’s coal mine, in which contract defendant had the right to use such track for all railroad purposes except a named purpose, held that such' branch track was a railroad constructed for private use, and hence not within the regulation of section 12, article XI of the Constitution, regulating public railroads.
    13. Railroads, § 196

      —token agreement for construction of private

      trade valiü, as against State. A contract whereby an owner of a coal mine contracts with a railroad for the construction and operation on plaintiff’s land of a branch track from its main line to plaintiff’s coal mine, wherein defendant has the right to use such track for all railroad purposes other than “coal mine,” is not in violation of any public right, although a State institution in the vicinity has no other railroad connection, and thereby suffers a hardship in that such railroad cannot transport to it any coal other than that mined by such owner, since the State is in no other or better position, as to its property, than other owners of property similarly situated.
    Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Frank T. Miller, for plaintiff in error; Stevens, Miller & Elliott, of counsel.
    Frank J. Quinn, for defendant in error; Quinn & Quinn, Charles V. O’Hern and John Dougherty, of counsel.
    Patrick J. Lucey, Attorney General, filed a brief in behalf of the State amicus curiae; Lester H. Strawn, Assistant Attorney General, of counsel.

      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.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Scholl Brothers, the defendants in error, filed a bill to enjoin the Peoria & Pekin Union Railway Company, the plaintiff in error, from moving on or over a certain track any coal or coal mine products not mined on lands of the complainants. The defendants answered the bill and the cause was submitted to the master in chancery to take evidence and report his conclusions of law and fact, which he did, recommending that the injunction issue. Objections and exceptions to the master’s report were duly entered, argued and overruled, and a decree of injunction entered substantially as prayed in the bill, and the defendant railway company brings the case here on writ of error.

The facts as stated in the brief of the plaintiff in error are admitted by the defendants in error substantially correct in all the main features of the case, and are substantially as follows:

Sholl Brothers were the owners in fee simple of certain surface and coal lands in or near South Bartonville, Illinois, a town or village, lying between Peoria and Pekin, Illinois. These coal lands lie on a high ridge, approximately one hundred and fifty feet above a valley, through which, parallel with the Illinois Biver, is one of the main lines of the Peoria & Pekin Union Bailway Company.

In 1896 the defendants in error sought to develop this mining property, and sunk a shaft at the top of this ridge, which became known as “Sholl Mine No. 3” or “Prosperity Mine.” The Peoria & Pekin Union Bailway Company at that time had the only railroad running near these lands. In order to get railway connections with the shaft and mine, the defendant in error induced the plaintiff in error to enter into a written contract under which a switch was laid in 1896, and from that time up to the present this switch has served this mine.

This proceeding involved the construction of that contract, which is as follows:

“Articles of Agreement made this 16th day of July, A. D. 1896, by and between the Peoria & Pekin Union Bailway Company, a Corporation of the State of Illinois, party of the first part, and Jas. M. Sholl, Henry S. Sholl and Samuel V. Sholl, doing business under the name and style ’of Sholl Brothers, parties of the second part.
‘‘ Witnesseth : That said party of the first part a. will put in a side track and side track facilities for said second parties from its main track to a coal mine near Bartonville, Illinois,—which mine .is to be operated by said second parties and is about to be opened by them,—upon the following terms and conditions:
‘ ‘ The said second parties shall furnish the right-of-way, grade and bridge the same, from the main track of said first party to said mine, and do all b. grading and bridging necessary for tracks at the Mine, free of all cost to said first party, and shall also pay to said first party, the sum of Three Hundred Dollars ($300.00) as their proportion of the first cost of ties to be used in constructing said side track.
“Upon condition that said second parties comply with the foregoing agreements and conditions, said first party agrees to furnish the balance of c. ties and other material necessary, including rails, laying the track from its main track to the Mine and .the necessary Mine tracks, and to maintain such track at its own expense.
“In consideration of so doing, said first party is to have, at all times, exclusive use of said tracks and right-of-way. It shall also have the right d to use said right-of-way and tracks in handling the business of, or for the purpose of making connections with, any other industry except coal mine, that may hereafter be located adjacent to said right-of-way or reached from said right-of-way, provided said first party shall always do such other business in a manner which will not interfere with the business of said second parties.
“In consideration of the premises, said second parties agree to ship their Mine output that shall be shipped by rail, or the product of any other industry which they may hereafter locate on or e. near the line of said right-of-way, over the rails of said first party, at equal rate. All rates to be determined hereafter in the usual manner of fixing rates for such business.
“This contract shall extend to and be binding for a period of twenty-five (25) years from the date hereof, and thereafter until either party gives f. sixty (60) days’ notice of its desire to terminate said contract, upon said first party, its successors and assigns, and upon second parties, their heirs, administrators and assigns.
“In Witness whereof, etc.” (We have for purposes of reference, indicated by letters the different clauses of the contract.)

This track so arranged for was completed during the year 1896, each of the parties thereto contributing in accordance with the provisions of the contract. Clause d requires construction and occasions this dispute. There was no other industry upon that hill at the time, nor so far as the parties contracting them knew, was there one in contemplation. An Illinois state asylum site had been chosen and lay just beyond the Shells ’ land, but there were no buildings and none had as yet been provided for.

In addition to the coal lands that the defendants in error then owned, and were obtaining options on, there were several thousand acres of other coal land in near proximity and on the same hill, and the only way to get to a railroad from this coal field would have been over that switch. In other words, the defendant in error had purchased the right-of-way for the only switch track that could be laid in this neighborhood and reach this coal field.

Some time after the construction of this track, buildings were constructed upon the site of the asylum grounds, and during that period of construction much building material was delivered over the Shell switch which was extended to the hospital site by the Peoria & Pekin Union Railway Company under a special agreement with the State authorities. The asylum was opened for business and commenced to receive patients in February, 1902.

The delivery of coal to this asylum is the cause of this controversy. Complainants claim that under the contract no coal can be transported over this track except such as comes from their mine, while the defendant claims that the contract permits it to transport coal to the asylum coming from outside mines.

It seems that from a period between 1902 and 1912 Sholl Brothers had the contract to furnish the coal at the asylum. It also is in evidence that other coal dealers sought to get the contract to furnish this coal but could never get the contract because of the claim on the part of Sholl Brothers that the railway company was not permitted to haul coal over that track other than coal coming from their own mine; that on several occasions attempts were made by other coal dealers to induce the defendant company to transport coal over that track to the asylum, but without success, as it, through its management, held out to the public that it could not accept coal from delivery over this track unless it came from Shells’ mine. There were times, however, when Sholl Brothers, because of breakdowns at their mine, were unable to deliver the coal to the asylum, and at such times they filled their contract with the State institution by procuring coal at other mines; and then especially requested the railway company to deliver coal from such other mines to the asylum. It is claimed now by defendants in error that this course of conduct operated as a practical construction of the contract and that plaintiff in error is bound by such construction.

In 1912 there was for the first time an insistent effort made to induce the management of the plaintiff in error to accept coal for delivery over this switch to the asylum from mines other than Sholl Brothers, so that the State institution, through its proper channel, could advertise for bids for its coal supply. The contract in question was then submitted to the counsel of the plaintiff in error, who advised the management that it did not have the right to refuse to transport coal over that switch from other mines, except coal coming from mines located along the right-of-way of this switch, or reached over this switch and established after the execution of this contract. The plaintiff in error then issued a supplement to its regular tariff by which it held out to all shippers of coal (outside of the accepted field) that it would take coal for delivery over the switch in question to the insane asylum.

Afterwards in April or May, 1912, coal coming from Wolschlag mine, located on the main track of the Peoria & Pekin Bailway Company, was delivered by the railway company to the asylum and against the protests of Sholl Brothers. This proceeding was then commenced.

The decree found that until December, 1911, both complainants and defendant uniformly and continuously construed the contract as preventing the delivery of coal mined at other points over the switch, and that complainant always insisted on such construction. This finding is not much controverted by plaintiff in error, but it says the questions are: (1) Is the language of the contract clear and unambiguous, or is it uncertain, doubtful and ambiguous? (2) If the language is clear does the conduct of the parties estop them from claiming that the construction was improper and against the express language employed in the contract? (3) Are the persons or the general public other than the parties immediately contracting bound by the conduct of the contracting parties, and to the injury of the public?” and cites authorities to the effect that the practical construction by the parties to a contract is immaterial where the language employed in the contract is clear and decisive, and claims that the language in question is not ambiguous. The law, no doubt, is as stated in Gibbs v. People’s Nat. Bank, 198 Ill. 307, that the rule of construction of contracts by the parties to them as governing the construction by the court can only be used to assist in arriving at the intention of the parties, not to force a new and different meaning into the contract, and where no ambiguity appears in the contract and the intention is clear on the face of the instrument the rule is not applied. But if the contract is ambiguous, “no extrinsic aid can be more valuable” than “the interpretation that the parties thereto have placed thereon in its performance for assisting in ascertaining its true meaning.” Slack v. Knox, 213 Ill. 190, and cases there cited. It is said in People v. Murphy, 119 Ill. 159, on page 166: “It is a familiar rule of construction, that where the terms of an agreement are in any respect doubtful or uncertain, and the parties to it have, by their own conduct, placed a construction upon it which is reasonable, such construction will be adopted by the courts, in the event of litigation concerning it.”

Therefore the inquiry is, Does the contract, and particularly clauses of it, clearly express the intention of the parties, or is it ambiguous, permitting the consideration of its construction by the parties, and the application of the rule?

Counsel for plaintiff in error say: “It is the duty of the court to ascertain the condition of the parties, the circumstances surrounding them, and the motives that moved them at the time of executing the contract in order to determine what their intention was.” No such extrinsic consideration is permissible if the contract is clear and unambiguous. The court said in Stettauer v. Hamlin, 97 Ill. 312, on page 318: “It is to be observed, however, that while courts, when necessary, put themselves in possession of all the facts and circumstances connected with the execution of an instrument, for the purpose of ascertaining the intention of the parties and explaining any ambiguity arising from extrinsic facts, yet this is never done where the terms of the instrument are clear and unambiguous, and there is no doubt as to the identity of the subject-matter to which the instrument relates.” This statement of counsel and the necessity that impels them to invoke the aid of surrounding circumstances to sustain their construction of the contract is a virtual admission that there is such uncertainty in its language as to require external aid in ascertaining its meaning. The contention is mainly as to the construction of the following language in clause d: “Said party is to have, at all times, exclusive use of said tracks and right-of-way. It shall also have the right to use said right-of-way and tracks in handling the business of, or for the purpose of making connections with, any other industry except coal mine, that may hereafter be located adjacent to said right-of-way or reached from said right-of-way.” Counsel seem to agree that notwithstanding the unqualified right granted by the first sentence, if considered alone, still that right is limited by the language of the second sentence, and that the switch cannot be used by the plaintiff in error in “handling the business of some coal mine industry;” but counsel for plaintiff in error say the coal mine industry excluded is one “that may hereafter be located adjacent to said right-of-way,” and that “reached from” is not to be construed in the broad sense that would include any coal mine in the United States located on a railroad; that it means only any coal mine that should be located near that of defendants in error; that defendants in error were aiming to prevent competition from mines that might be located near them and therefore were contracting that coal should not be shipped out over that track, and were not contemplating danger from coal being shipped in over that track, and consequently were not guarding against that kind of shipment, and they argue with much force from a consideration of the surrounding circumstances when the contract was executed that its language should be so construed. Counsel for defendants in error argue from the circumstances surrounding the parties, with about equal plausibility, that the railroad and Sholl Brothers intended to say and did say: The Peoria & Pekin Union shall be the only road allowed to use this switch. It can serve all classes of industries and persons, but one, now doing business adjacent to the switch, or who in the future may locate so that they may be reached from the switch, and make all necessary connections, from time to time, to render such service to all such classes. The one class not to be served is the coal producing class, and say it is absurd to suppose that defendants in error were trying to protect themselves from competition in shipping coal out and leave the railway company free to ship coal in. These conflicting constructions of the contract, each capable of plausible and reasonable support, and each requiring in its maintenance the consideration of extrinsic circumstances, leave no doubt that the terms of the contract are not clear and unambiguous, and, as we have before seen, if we are to look beyond the terms of the contract to ascertain its meaning, a very material consideration is the construction placed on it by the parties, and we are of the opinion that the proof in this case of such construction by the parties to the contract should control in determining its meaning. There is no doubt from the evidence that the parties for many years understood the contract in accordance with the conclusion reached by the chancellor, and we are of the opinion that he did not err in so construing it. Counsel argue that the decree enjoining any coal to be taken over the switch except such coal as comes from Sholls ’ mines is broader than the contract as construed by the parties, and therefore, although defendants in error may from time to time give consent to have other coal delivered over this track, there will be a technical violation of the injunction, and say that Sholl Brothers, or their representatives, have not the right to bind the court that entered this decree for injunction to say when or when not the injunction may be violated, and therefore the decree should have been that coal should not be delivered over this switch except from the Sholl mines, or by the consent of Sholl. We think no danger need be apprehended from shipping coal hereafter, as heretofore, over this switch track by the consent of the complainants that procured this decree of injunction, or of the parties acquiring their interest in the matter. Where only private interests are concerned, neither the contracts of partiesznor judgments or decrees of the court stand in the way of any action taken by and with the consent of all parties interested.

It is urged by plaintiff in error that the contract is in violation of its duty to serve the public. This contention is necessarily based oh the assumption that the switch track in question is a part of a public railroad. Public railroads are declared public, highways by section 12, art. XI of the Constitution, and it is there provided that they shall be free to all persons for the transportation of their persons and property thereon under such regulations as may be prescribed by law. Counsel cite Louisville & N. R. Co. v. Pittsburg & K. Coal Co., Ill Ky. 960, which is reported in 55 L. E. A. 601, as decisive of this question. Under the circumstances of that case the track in question was held a part of the railroad as a public highway, and it necessarily followed, as it would in this case if this switch track was a part of the railroad, that a contract so limiting its use is void. Counsel for plaintiff in error say they do not wish this contract to be declared void. There can be no question that a railroad corporation cannot acquire property as a part of its public highway and make valid contracts limiting its use in violation of the constitutional provisions. But it is equally clear that the owners of private property may contract with railroad corporations for switch tracks to be laid over their own private property without submitting those tracks to burdens imposed upon the main lines of railroads. In Koelle v. Knecht, 99 Ill. 396, the court construed this section of the Constitution, and said it manifestly refers to railroads constructed for public as contradistinguished from private use; that it is only public railroads that are intended to be regulated, and held that the switch there in question was not of that character. This case has been cited and in this respect approved in Truesdale v. Peoria Grape Sugar Co., 101 Ill. 561; Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155; Litchfield & M. Ry. Co. v. People, 222 Ill. 242, although in those cases the rule was not applied because switches were built in the. public street. Cases might arise beginning like the case at bar with a switch track laid and used on the land of a private owner for his own accommodation, extended from time to time with such connections as to make it, in its actual operation, a part of a public highway, and bring it within the provisions of the Constitution, and the fact that the contract in this case provides for other uses of the track than the service of defendants in error raises a fair question in the case whether a public highway was contemplated; but we are of the opinion that the facts in the case bring it within the rule announced in Koelle v. Knecht, supra, and that the provisions of the Constitution do not apply for the reasons there stated.

The Attorney General of this State has, by leave of this court, filed a brief as amicus cureae, in which he calls special attention to the hardship on the State in preventing the use of this switch track by parties other than Sholl Brothers of whom the State authorities may buy coal, and urges the duty of common carriers to impartially serve the public, which we have heretofore discussed. It is true that it would be in the interest of the State to have access to its institution free and open to all parties that might be inclined to supply it with coal, but we are aware of no authority that places the State in a better or- different position in this respect from any private property owner that might be similarly situated and, as we have said before, we do not regard the contract as construed by the parties to it and by the chancellor as a violation of any public right. The decree is affirmed.

Affirmed.

Mr. Justice Niehaus took no part.


text:
    Ralph Butler, Appellee, v. David A. Whiteman, Appellant.
    Gen. No. 6,079.
    (Not to be reported in full.)
    Appeal from the County Court of Henderson county; the Hon. Rufus F. Robinson, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Ralph Butler, plaintiff, against David A. Whiteman, defendant, in the County Court of Henderson county, to recover on a contract whereby plaintiff did certain plumbing work for defendant. From a judgment for plaintiff, defendant appeals.
    It appears that appellant’s house had been destroyed by fire, and he required a job of plumbing, and heating pipes and registers for the new house that he was constructing but supposed his old furnace would serve his purpose. He sent appellee specifications that had been prepared for plumbing and heating, and after-wards there was a conference between the parties having these specifications before them, and appellee prepared, signed and handed to appellant a paper writing in which he proposed to do the plumbing work described in detail, and differing somewhat from the description in the specifications, for $310, one-half payable on arrival of material, and one-half when the job should be completed. Appellant afterwards concluded the. old furnace would not serve his purpose and bargained with appellee for new furnace at an agreed price of $64.50. Appellee proceeded with the work, including putting in of the furnace pipes, registers, etc., which is spoken of as a furnace job, and during the progress of the work sent appellant a statement, or bill, as follows:
    Abstract of the Decision.
    1. Appeal and error, § 1410

      —when verdict will not he reversed as against weight of evidence. Although it is the duty of the Appellate Court on appeal from judgment to reverse such judgment, when the verdict on which such judgment is based is “clearly and manifestly” against the evidence, yet, in considering such a judgment, the words “clearly and manifestly” must not be overlooked, and such judgment will not be reversed merely because an examination of the record seems to show that the verdict was not supported by the evidence.

      "½ Plumbing and lighting job $310. $155.00

      ½ Furnace job................ 62.50
    1 Furnace..................... 64.50
    $281.50”
    which appellant answered, inclosing his check, as follows: “I am enclosing check for $219.50, which is half your bill of $310.00 and full pay for new furnace.”
    The written proposition did not include the furnace work, but plaintiff testified that later such work was verbally added to the contract at'the price sued for, in which testimony he was supported by the testimony of his two daughters who came into the room during the conversation as to such work. Defendant admitted the conversation, but claimed that the price agreed upon for such work was $125. There was a jury trial in the County Court.
    Safford & Graham and James W. Gordon, for appellant.
    Hartzell, Cavanagh & Babcook, 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 Carnes

delivered the opinion of the court.

2. Evidence, § 475 —when preponderance not determined by numher of witnesses. The question of the preponderance of the evidence cannot be determined merely by counting the witnesses testifying on one side or the other of a cause, although the number of witnesses testifying for and against a given statement of fact is obviously an important consideration in determining the question of preponderance as to such statement.

3. Evidence, § 475 —what does not constitute preponderance. .There is no preponderance of evidence where one witness affirms a fact and another denies it if no reason appears for discrediting either witness.

4. Contracts, § 387 —when verdict not against manifest weight of evidence. In an action to recover on a contract for the installation of plumbing work, where the evidence was conflicting, a verdict for plaintiff held not clearly and manifestly against the weight of the evidence.