author: Mb. Justice Holdom

text:
    Albert Seith, Appellee, v. Commonwealth Electric Company, Appellant.
    Gen. No. 14,001.
    1. Verdict—what considered in support of. The Appellate Court in determining whether the verdict of the jury will be disturbed will take into consideration the fact that the jury saw the witnesses and were able to observe their manner of testifying, their frankness or prejudice, their interest or lack of interest in the cause or the parties, and were able' therefrom to say who were entitled to the greater credence.
    2. Negligence—when evidence sustains charge of, where injury results from live wire. Held, that the evidence justified the verdict of the jury upon the question as to whether the defendant electric light company was negligent in connection with the injury resulting from coming in contact with a live wire.
    3. Electricity—when failure to obey ordinance negligence. It is the duty of an electric light company which has accepted an ordinance to comply with its provisions enacted to protect the public from lurking dangers and a failure so to do resulting in injury to an individual constitutes actionable negligence.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed November 12, 1908.
    Rehearing denied November 30, 1908.
    F. M. Cox, F. J. Canty and J. C. M. Clow, for appellant.
    Morse Ives, for appellee.
   Mb. Justice Holdom

delivered the opinion of the court.

The plaintiff was injured by coining in physical contact with a live electrical wire, the property of defendant, while said wire was upon the ground, having broken and fallen upon the public highway upon which plaintiff was travelling, as he lawfully might, when injured. A trial in the Circuit Court resulted in a verdict for $4,000, upon which, after the overruling of motions for a new trial and in arrest of judgment, the trial court gave judgment. To these actions of the court defendant made objections and preserved exceptions.

While twenty-three assignments of error appear upon the record, the efforts of counsel in argument are mainly confined to the contention that the verdict and judgment are unsupported by the evidence and contrary to its preponderating force, and that the evidence fails to disclose any actionable negligence of defendant.

There is a line of poles on Noble street, one of which is near the intersection of Grand avenue. On these poles are four cross arms. On the top cross arm the wires of defendant were strung. They were charged with a high voltage of electricity used in electric lighting. On the three other cross arms were strung telephone wires. The poles near the intersection of Noble street and Grand avenue are about 100 feet from each other. Plaintiff lived in a flat building, the first floor of which was occupied as a saloon on the southwest corner of Grand avenue and Noble street. On the 19th day of August, 1903, plaintiff left his flat by the outside back stairs and while walking on the west side of Noble street was struck in the breast with the live wire of defendant, which had previously broken and fallen to the ground. A policeman struck the wire with his club, causing the wire to strike plaintiff in the breast, whereupon plaintiff grabbed the wire with both his hands and was seriously burned with the escaping electric fluid. • It appears that plaintiff was unconscious of his peril or the fact of the wire being upon the ground until it struck Mm in the breast. The electric wires of defendant at the point of the accident were not guarded or protected in any way.

Plaintiff declared upon section 6 of an ordinance of the city of Chicago granting an operative franchise to defendant .passed June 28, 1897, and which reads.: “The conductors and wires owned and operated by the said company under the provisions of this ordinance shall be properly insulated and all overhead conductors used by said company shall be protected by guard wires or other suitable mechanical device or devices”.

Defendant contends that the wires were thoroughly insulated and in perfect condition; that they had been strung new less than nine months previous to the accident; that the breaking and consequent falling of the wire could only be accounted for upon the theory that a kite, known to have been caught on the wires, and produced in evidence, became so entangled in defendant’s wires that two of them were brought together, short-circuiting them so that the wire in question was burned out, broke arid fell to the ground. Defendant further contends that the injuring of plaintiff was brought about as a result of his own carelessness; that he and a policeman discussed the condition of the fallen wire, the policeman insisting that it was alive and dangerous and plaintiff maintaining that it was dead and harmless; that plaintiff, in spite of the command of the policeman not to touch the wire, stooped and picked it up, with resulting injury.

From these facts it is claimed that there is no actionable negligence imputable to defendant. We must not lose sight of the fact, in arriving at our conclusion, that there is a sharp conflict in the evidence. This conflict it was the burden of the jury to reconcile. They saw the witnesses, whom we cannot see, and were able to observe their manner of testifying, their frankness or prejudice, which ever was apparent, their interest or lack of interest in the cause or the parties, if any, and were able therefrom to say who was entitled to the greater credence. The witnesses were from various walks in life and of much disparity in age. Two little girls thirteen years old, eye witnesses of the accident, were put upon the stand by plaintiff, and two policemen and a young man, who testified that he was a teacher in the T. M. C. A. and also acted as barkeeper for his father, testified for defendant. The candor of immature youth may have rendered the testiof the two little girls more trustworthy and convincing to the minds of the jury than the evidence of the policeman found in a saloon, and that of the young man whom the jury may have regarded as engaged in irreconcilable and incompatible employments.

What in fact, caused the wire to break is largely a matter of conjecture. Defendant’s theory that two wires were short-circuited by the kite, made of a part of a Daily News, being upon the wires, is entirely lacking direct proof. It is in evidence that another kite, made of pink paper, had rested upon these wires between two and three weeks prior to the accident. If the breaking of the wires can be attributed to the interposition of a kite, then it was for the jury to say which kite was the proximate cause of the wires breaking. If they concluded the pink kite was the cause, they may have regarded it as negligence in defendant in permitting the pink kite to remain upon the wires so long a space of time, and not removing it. They may have concluded that defendant was negligent in permitting a live electric wire to be upon the ground at any time, and that the evidence of defendant fell short of rebutting the presumption of negligence thus arising. There is authority of law to support this proposition.

In affirming the judgment of the trial court it was said in Denver Consolidated Electric Company v; Simpson, 21 Colo. 371: “In substance the court instructed the jury that if they found that the defendant’s wire was so charged with electricity as to become dangerous to persons coming in contact with it, and that the wire had been disconnected or detached from its fastenings and hung down in a public alley, so as to endanger public travel, that of itself was prima facie evidence of negligence on the part of the defendant”. And it was held in Larson v. Central Ry. Co., 56 Ill. App. 263, that proof of an injury occurring as the proximate result of an act which under ordinary circumstances would not, if done with due care, have injured any one, is enough to make out a presumption of negligence. That permitting a broken electric wire to hang loose in the streets, with proof of a resulting injury, makes out a prima facie case of negligence. The jury were warranted from the evidence, we think, in concluding that the broken wire was not sufficiently insulated, for if it had been it might not have short-circuited from the intervention of either kite. Again, defendant contends that the wires were strung upon the arms of the poles in the ordinary and usual way; but even so, this is not sufficient to exculpate defendant from the negligence imputable to it from the falling of the wire. The ordinance which was pleaded and proven directed certain precautions to be taken by defendant in the stringing of its wires. This ordinance was accepted by defendant and was binding upon it. The witness, E. W. Leese, testified that guard wires were strung parallel and underneath the electrically charged wires with short wires strung crosswise every few feet to keep the charged wires from falling. It is admitted that no such guard wires were used or any other mechanical device to arrest the falling of the wires.

The ordinance supra was before the Supreme Court in Commonwealth Electric Co. v. Rose, 214 Ill. 545, and it was there held that the defendant was estopped from repudiating its conditions; that having advantaged of its benefits, it could not escape the liability imposed by it. Furthermore, that an ordinance granting the right to an electric company to erect poles and wires, and requiring the company to properly insulate the overhead wires and to protect them by guard wires “or other suitable mechanical device or devices” has the force of a statute, the violation of which, after acceptance and availing of its benefits, is prima facie evidence of negligence.

In case supra the Branch Appellate Court, by Mr. Justice Baker, said in 114 Ill. App. 181: “The defendant made no attempt to protect its overhead conductor, charged as it was, with an amount of electric current dangerous to human life, by guard wire or any mechanical device whatever. It is no answer to say that the ordinance did not provide whether the guard wire should be placed above or below the conductor. At this street crossing the telephone wires were above the conductor, and the guard wire to protect the conductor from contact with the telephone wire must necessarily be placed above the conductor”.

The modern use of electricity, uncontrolled, is fraught with peril to human life. The ordinance was' enacted to protect the public from such lurking dangers, and it was the duty of defendant to comply with the ordinance in such a way that its wires, highly charged with electric fluid, should not fall and be a menace to the life and limb of the public lawfully travelling upon the highway in their vicinity.

We think the jury were justified in finding from the evidence that defendant was guilty of the negligence charged and proven as proximately causing the injuries from which plaintiff suffered. •

The two little girls, Gladys Leader and Dora Jensen, saw the wire in the street and, young as they were, realized the danger its continuance in the street was to passers by. They immediately entered Bachrach’s saloon to notify him of the trouble and found two policemen there resting themselves. Their testimony in its material parts is corroborated by plaintiff, Albert Johnson and defendant’s witness, Thomas Ableseth. They support plaintiff’s statement that the wire came in contact with his person by one of the policemen striking the wire with his club.. Opposed to this is the testimony of officer Megary that officer King hollered to plaintiff not to touch the wire and to get away from it; that plaintiff answered that it was a dead wire, and that King said, “Dead or alive, leave it alone”, but that in spite of this warning plaintiff stooped and picked up the wire and in so doing was injured. Officer King testified in substance corroborating officer Megary. Defendant’s own witness, Ableseth, flatly contradicts the two officers when he says that plaintiff did not stoop down and pick up the wire; that he caught the wire standing up, and that he did not hear either of the officers say anything. Philip Murphy, a police officer connected with the Chicago & Northwestern Bailway, testified that he was in a saloor on the southwest corner of Grand avenue and Noble street, and ordered a glass of beer, and saw through the bar mirror plaintiff pick up the wire. Under the circumstances we are not surprised that the jury were loath to place much credence in this evidence. It is not natural and challenges credulity somewhat to place reliance upon it. The remainder of Murphy’s testimony is largely as to what took place after plaintiff was felled to the earth by the shock after coming in contact with the wire, and is unimportant. A good deal of Bachrach’s testimony sustains the account of the two little girls, the only material variance being that plantiff stooped down and picked up the wire. The jury had the right to disbelieve the testimony of this witness where it was in conflict with plaintiff’s proof, if, from the manner and bearing of the witness, they concluded he was prejudiced or in any way unfair in this part of his evidence. The reliability of his testimony as a whole and the weight to be accorded it was for the jury.

James Kraemer, a blacksmith, testified for defendant that he saw the wire “bust and fall down” and plaintiff stoop down and pick up the wire and pull it through his hand until he came to the broken end, when he uncovered part of the wire. Kramer admits that when approached after the accident by two men, he told them he did not know anything about the accident and did not want to. The jury may have believed the latter and not the former statement of Kraemer. The whole evidence considered, we are in accord with the finding of the jury. The verdict is clearly sustained by a preponderance of the proofs. No question is made of the nature and extent of plaintiff’s injuries, therefore there is no controversy here challenging the justness of the damages awarded.

Finding no reversible error in this record, the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Caroline Kneip et al., Appellees, v. Charles H. Schroeder, Appellant.
    Gen. No. 14,778.
    1. Trial—when should he advanced. A party restrained from constructing a building should be accorded a speedy trial and the cause advanced if a hearing upon ex parte affidavits has been unsatisfactory and such as to require the chancellor in the exercise of his discretion to maintain the status quo by injunction.
    2. Injunctions—when should he awarded. An injunction upon ex parte affidavits should be awarded when the showing made by the respective parties is such as to preclude a satisfactory decision, if it is essential that the status quo be maintained in order that ultimate justice may be done.
    3. Injunctions—when order with respect to construction of building not void for uncertainty. Held, that the injunction granted in this case was not void for uncertainty where it restrained the defendant from placing the front wall of his building upon a certain position with respect to the building line which was in dispute.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed November 12, 1908.
    Arnold Tripp, for appellant.
    Charles A. Williams and J. B. Langworthy, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

The chancellor in the court below granted a temporary injunction, in accord with the prayer of the bill, restraining appellant from erecting a building on the property owned by him described as lot 22 and the south half of lot 21 in block 8, in Lane Park addition to Lake View, within twenty feet of the front lot line.

The appellees are owners of property improved with residences upon Janssen avenue, the street upon which appellant intends to build an apartment house building. The right to an injunction is predicated on the alleged facts that on both sides of Janssen avenue, between Boscoe and Cornelia streets, where the property of all the contestants is situated, there is, by the plat of the subdivision, a building line restricting the erection of buildings to within twenty feet of the street lot line; that this restriction has been recognized by all the owners, including the parties to the bill, who have built and maintained their several houses in accord therewith; that appellant, in addition to the premises in dispute, is the owner of lots 40, 41 and 42 in the same block, and on said lots has erected buildings in conformity with the restrictive building line.

The bill, on the point of uniformity of action of the building property owners, alleges that “throughout the history of the subdivision, and from the time the first improvement began until the present time, there has never been any violation or infraction of the building line as established and shown on the plat, and that all improvements were made with reference to the building line”.

The injunctional order was granted after a hearing of the parties on proofs resting in ex parte affidavits. No witnesses were produced for cross-examinatiou, neither was the answer of appellant to the bill filed. By the affidavits of appellant it is averred that none of the property holders on either side of the Janssen avenue block designated have constructed their improvements within the twenty-foot building line, hut that all of them, including appellant, have more or less disregarded the building line and placed portions of their buildings outside of the building line, and that to the time of the filing of the bill all the lot owners have acquiesced in such violations and refrained from making any protest. Two surveys made by different surveyors form a part of the affidavits read upon the hearing. They purport to show the front line of the several improvements, but they are not in accord.

Appellant asks a reversal of the injunctional order upon three grounds, viz: (1) Because there exists no building line that any of the property holders, including appellees, have ever lived up to; (2) because the character of the property has changed, and appellant’s lot is no longer adaptable for residence purposes, and (3) that the injunctional order is void, because it is indefinite and incapable of being understood.

In the conclusion at which we have arrived it is unnecessary for us to pass upon the merits of the controversy, either upon the facts or the law, as they will not become factors in construing the rights of the parties until a full hearing has been had and a decree on such hearing rendered by the chancellor.

Whether or not the building line, the existence of which appellant admits, has been disregarded by the property owners so as practically to work its abrogation as a restriction, depends upon the facts as to the manner of the construction of existing improvements with reference to said building line, and upon the law as to whether stoops, steps and piazzas erected upon the restricted twenty feet are violations of the building line compact. This we are unable to decide from the conflicting affidavits of the several parties. They are ex parte, and, in the absence of cross-examination of the affiants, entirely unsatisfactory. Neither are we able to say from the affidavits submitted that the character of the property has changed so that in law the building line restriction is no longer binding. All these questions affecting the rights of the parties can be settled after a hearing upon the bill, answer and replication, where the facts may be demonstrated in the usual manner and the witnesses of the several parties submitted to cross-examination by the opposing party. We think that, as the cause was presented to the chancellor in the unsatisfactory way in which it was, he had no alternative but to grant the temporary restraining order sought by the bill to preserve the status quo between the parties; but we suggest that appellant should not be delayed in the construction of his proposed building more than is absolutely necessary to a proper and impartial hearing of this controversy, and we suggest that it is a case where the chancellor would be justified in speeding the cause and granting as early a hearing as the state of his docket will permit in justice to other litigants in his court.

The state of the litigation here involved is in reasoning and analogy very similar to the state of the case in Child v. Douglas, 54 Eng. Chan. Bep. 739, in which Lord Justice Sir Knight Bruce said: “As to three of these four points, the present impression upon my mind, on the materials before the court, is unfavorable to the plaintiff’s case. Still, if the act intended to be done by the defendant were one which if completed would substantially or seriously prejudice the plaintiff or his house, I should probably have been disposed, even with the view which I take of three of the points, to interfere by injunction, until the question in dispute could be decided at the hearing”. So in this case, if the temporary injunction should be denied and the defense of appellant fail upon the final hearing, the act of building if completed would, in such circumstances, not only substantially but seriously prejudice appellees and their property.

We are unable to accord our assent to the contention of counsel that the injunctional order is void for uncertainty. The restriction is solely to the placing of the front wall of the building, without regard to any other part of such structure.

The order of the Superior Court granting a temporary injunction is affirmed.

Affirmed.


text:
    George N. Watson, Appellant, v. Ralph Cudney, Appellee.
    Gen. No. 14,967.
    1. Chattel mortgages—what essential to justify foreclosure under insecurity clause. In order to justify the foreclosure of a chattel mortgage under an insecurity clause and the appointment of a receiver, facts must he stated upon which the mind of the court can be attuned to the conclusion that the security was imperiled; such facts must arise from the acts of the parties or changes in values occurring subsequent to the execution of the mortgage.
    2. Receiverships—who disqualified to act. A receiver should be an impartial and indifferent person. Neither a party to a suit nor a trustee, whose business it is to watch a receiver, should be appointed. These rules however relax in the interests of all the parties and are therefore not without exception.
    3. Receiverships—what essential to appointment. Either the bond required by statute should be given or the court should find upon notice and a full hearing that the bond required by statute shall be dispensed with in order that a receiver may properly be permitted to act.
    4. Receiverships—when order of appointment indefinite. Held, that the order appointing the receiver in this cause was indefinite and did not cover all of the contingencies which should be provided for by such an order.
    Bill to • foreclose. Appeal from the Superior Court of Cook county; the Hon. George A. Dupmr, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed November 12, 1908.
    Joseph W. Latimer, for appellant; Blum & Blum, of counsel.
    Eugene E. Prussing, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Appellant, on July 1, 1908, made and delivered to appellee a chattel mortgage conveying certain personal property used in the conduct of a restaurant at 194 North State street, Chicago, and the interest of appellant in the leasehold of that place, to secure his note of even date for $400, payable to appellee or order on or before one year after date. The bill in this record was filed to foreclose the mortgage and subject the chattels and the leasehold interest of appellant to the payment of the sum of $367, due appellee on the note. The bill alleges that on August 13, 1908, appellee, feeling “himself unsafe and insecure in said indebtedness”, took possession of all the mortgaged property he could discover, including the leasehold interest of appellant in the premises atr194 North State street, and still held such possession; that appellee advertised the mortgage property for sale at 11 o ’clock a. m. of August 24, 1908, at which time the sale was adjourned by proclamation until August 31st following, at the same hour; that one Hall, through whom appellant derived his leasehold title, claims as lessee of the owner, to be the owner of the leasehold, and denies having at any time parted with the same to appellant or any other person, and that Hall, by a subterfuge, obtained entrance into the leasehold premises, and by force continues; and that said Hall threatens to announce at the sale under the chattel mortgage, that he is the owner of the leasehold, and that appellee has neither right, title nor interest therein, and that said announcement will tend greatly to reduce the amount which appellee, but for said asserted claim, would derive at such foreclosure sale; that one Bortef, the landlord of the leasehold premises, refuses to recognize appellee’s rights as assignee of the leasehold, but on the contrary maintains the claim of said Hall; that Borter threatens to announce at a sale that purchasers will be required to remove chattels purchased from the leasehold premises, for the reason that appellee has no title or valid claim thereto. The bill also avers that the leasehold interest is the most valuable asset as security for the indebtedness of appellant, prays for an ascertainment of the rights of the different claimants, the establishing of the lien of the chattel mortgage to appellee on the property therein described, including the leasehold, the ascertaining of tile amount due appellee, ordering its payment, and, in default of such payment, directing a sale of the mortgaged property freed from the claims of the several claimants, and also prays for an injunction restraining the several claimants from molesting appellee’s possession and for a receiver, etc.

On the day the bill was filed appellee also filed his petition for the appointment of a receiver, and represented inter alia that “in order to protect his security and until the rights 'of the parties hereto shall be fixed and determined * * * is willing and does hereby offer to open up the restaurant * * * and conduct the same without expense to any of the parties hereto, and at the hazard and risk of petitioner, and will pay and discharge the rent to accrue for the use of said premises, * * * that in that regard your orator will give such bond in the premises as the court may think reasonable and proper; that your petitioner is willing to act as such receiver without compensation therefor, and will give such bond in that behalf as to the court may seem just; provided, however, that should your petitioner be able to make any profit in the conduct of such restaurant, the said profits shall be the property of your petitioner”.

On September 2, 1908, a certain injunctional order was entered, and also an order appointing appellee receiver on giving bond in the penalty of $1,000. The latter order is in the following terms: ‘ ‘ That Ralph Cudney be and he is hereby appointed receiver of all the goods and chattels and leasehold estate constituting the restaurant business in the premises at 194 North State street * * *; that he take possession thereof with the power of receivers in like cases, and insure the same for the benefit of whom it may concern; that he is hereby authorized at his own risk and hazard to re-open and conduct the said restaurant business conducted on said premises, using said goods and chattels for such purpose, and that any profits that may be made by said Balpli Cudney shall be retained by him for his compensation; that while he so conducts the business he shall pay the rent of said premises. * * *”

Appellant seeks by this appeal to reverse the order appointing appellee receiver.

The appointment of a receiver pendente lite is undoubtedly a matter resting in the sound discretion of the chancellor, but it is never to be arbitrarily exercised. While, in the light of the disputed ownership of the leasehold interest and the dual claim of possession by appellee as a mortgagee in possession, and Hall actually in possession, claiming ownership of the leasehold, and his threats and that of the landlord to do acts which tend to endanger the value of appellee’s security, might in themselves create such a condition as would authorize the appointment of a receiver, still there was something antecedent to all this which must exist to constitute a foundation for the court to exercise its power to appoint a receiver. Such antecedent condition was a showing of a right to foreclose the mortgage. The mortgage, by its covenants, gave the mortgagee the right to foreclose the same in the event óf his feeling that his security was unsafe or insecure. Appellee averred in his bill that he took possession of the mortgaged property because he felt unsafe and insecure “in said indebtedness and security”. This is clearly a conclusion without reason or instance to support. It is insufficient to support a right to take possession, much less to form the basis of an order so far-reaching as the appointment of a receiver. It is not sufficient to state conclusions; facts must he stated upon which the mind of the court can be attuned to the conclusion that the security was imperiled. Such facts must arise from the acts of the parties or changes in values occurring subsequent to the execution of the mortgage. Furlong v. Cox, 77 Ill. 293; Roy v. Goings, 96 Ill. 361; Slingo v. Steele Wedeles Co., 82 Ill. App. 139.

The contention that averments of such facts were not essential because appellee was a mortgagee in possession at the time of filing the bill is without force. He appealed to a court of conscience and it behooved him to establish that he had proceeded equitably in all he had done in the matter of his claim.

The power to appoint receivers is the prerogative of a court of equity, but that power is subordinate to legislative action, wherever a statute exists in any wise limiting or defining the power. It is seldom exercised in cases where other legal remedies are adequate to protect the moving parties’ rights. Nor will a party to the action be appointed, except upon an agreement of the parties in interest, and seldom, if ever, against their protest. Benneson v. Bill, 62 Ill. 410.

A receiver should be an impartial and indifferent person. High on Receivers, sec. 63.

Neither a party to a suit nor a trustee, whose business it is to watch a receiver, should be appointed. Kerr on Receivers, 126. The interests of all parties, however, should be considered, so that these rules are not without exceptions. Taylor v. Life Association of America, 3 Fed. R. 465.

The appointment of receivers is in some respects controlled, as applied to the case at bar, by the statute. See Session Laws of 1903, title Beceivers. By section 2 the chancellor may, in his discretion, in lieu of appointing a receiver, permit the party in possession to retain such possession on giving bond. The appointment in this case was the appointment of appellee as receiver, and therefore not under the section of the statute supra. Section 1 of the Act supra provides “that before any receiver shall be appointed, the party making' the application shall give bond to the adverse party in such penalty as the court or judge may order, and with security to be approved by the court or judge, conditioned to pay * * * provided that bond need not be required when for good cause shown and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.” The record fails to disclose that the applicant gave the bond required by the foregoing section. Neither can we find from the record that the court upon notice and a full hearing was of the opinion that the bond called for by the statute should be dispensed with. The record conveys no intimation of the opinion of the court upon this subject. To entitle appellee to the appointment of a receiver, he must as a sine qua non to the enforcement of that right give the bond required by the statute, unless it is the opinion of the court that a receiver ought to be appointed without bond, and then the court’s opinion must affirmatively appear in the order making the appointment. The statutory requirement in this regard cannot be dispensed with. It was evidently enacted for the purpose of making liable the moving party in a receivership proceeding, for such damages as might result from the improvidence of his act in bringing about a receivership where none should have been asked.

The order allowing compensation to appellee as receiver of all the profits he might make in operating the restaurant, "with the mortgaged property, is so indefinite in its ultimate operation as to be erroneous. All appellee was entitled to receive was the amount due him on his debt. When this was accomplished, in whatever way, appellant, the mortgagor, was entitled to receive, upon demand, the mortgaged chattels. Appellee seems to have proceeded upon the assumption that but little or no profit would result from the operation of the restaurant. This assumption we cannot adopt, in the absence of proof. Neither can we assume that appellee would desire to run the restaurant unless there was a reasonable expectation of profit to be realized from so doing. If appellee was entitled to any compensation as receiver, a limitation of the amount should have been fixed in the order. The error seems to lie in the assumption of appellee that he was appointed receiver without compensation.

The interlocutory order of the Superior Court appointing a receiver is reversed.

Reversed.


author: Mr. Presiding Justice Adams

text:
    People of the State of Illinois ex rel., Appellee, v. Charles T. Miller, Appellant.
    Gen. No. 14,026.
    1. Quo warranto—what essential to maintenance of. In order to maintain an information to oust a person holding the office of crib-keeper of a municipality, it must appear from the petition that there is such an office de ñire in such municipality.
    2. Quo warranto—when judgment informal. A judgment in quo warranto as follows: “It is hereby ordered, adjudged and decreed by the court in favor of the relator and of ouster with costs”, is informal.
    Quo warranto. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed November 12, 1908.
    Cantwell & Roth, for appellant.
    John J. Healy, for appellee; Newton A. Partridge and Western Starr, of counsel.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The state’s attorney filed an information against the appellant, Charles T. Miller, on the relation of Lawrence C. Nelson. Appellant demurred to the information, and the court overruled the demurrer, and, no one appearing for the appellant, rendered judgment against appellant. The concluding part of the judgment is in these words: '‘ Comes now the relator and aslcs that a judgment of ouster be entered against the defendant, Charles T. Miller, from the office or place of employ-« ment of crib-keeper, in the service of the city of Chicago, and that he pay the costs of this proceeding; and the court being fully advised in the premises, it is hereby ordered, adjudged and decreed by the court that judgment in favor of the relator, and of ouster, with costs to the relator, against the respondent, Charles T. Miller, be entered in the above entitled cause”. From this judgment the appeal is.

Appellant has assigned as errors that the court erred in overruling the demurrer; that the judgment is erroneous, in that it is not in favor of The People, and is informal, in that it is a mere direction to the clerk to enter judgment.

. Appellant’s counsel argue that the information is fatally defective, in not averring facts showing that there is such an office as crib-keeper of the city of Chicago. Information, in the nature of quo warranto, will not lie unless there is such an office de jure as that of crib-keeper. Hurd’s Stats. 1905, p. 1549. Therefore it must appear from the information that there is such an office. Hedrick v. People, 221 Ill. 374; People v. Hedrick, 132 Ill. App. 154; Bullis v. City of Chicago, 235 Ill. 472.

There is no such office created by statute. If there is such an office as crib-keeper of the city of Chicago, it must have been created either directly by legislative enactment, or by ordinance passed by the city council of the city of Chicago, in the exercise of power delegated to the city by the legislature. People v. Hedrick, 132 Ill. App. 154,158. No such office has been created, so far as we are aware, by statute, and if it had been, it is safe to assume that this would have been called to our attention by the learned counsel for appellee. It is not averred in the information that such an officer as crib-keeper has been created by ordinance of the city. It is merely assumed in the information that there is such an office. This is not sufficient. Hedrick v. People, supra, p. 377. It is matter of substance to show that there is such an office de jure as that of crib-keeper, and the information, in not showing this, is fatally defective.

The judgment in the cause could not well he more informal than it is. Appellant’s counsel say it is not a judgment, but a mere direction to the clerk to enter a judgment, and it is certainly somewhat obnoxious to this criticism. The judgment reads: “It is hereby ordered, adjudged and decreed by the court in favor of the relator and of ouster with costs”, etc., thus creating at least uncertainty whether it is a judgment of ouster in favor of The People, or not.

The judgment against the relator for costs is authorized by section 6 of the quo warranto act. Such defects as there are in the judgment will, probably, not occur in any future judgment which may be rendered in the cause by the trial court. The court erred in overruling the demurrer to the information and in rendering judgment against appellant for costs. For these errors the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Jacob H. Lesher, Appellant, v. United States Fidelity & Guaranty Company, Appellee.
    Gen. No. 14,011.
    1. Pleading—what declaration need not allege. A declaration relying upon a bond which provides that suit hereon must be brought, if at all, within a specified period, need not set up excuses for failure to bring suit within such time in order to state a cause of action.
    2. Pleading—what question not raised 6y demurrer. A demurrer raisee no question as to whether a plea is or is not regularly filed.
    3. Statute oe Limitations—what does not adjudicate defense of.
      To overrule a demurrer to a declaration which excuses in advance of pleading the defense of limitation, is not to adjudicate the question of the propriety of the limitation defense, as such defense must he set up by way of plea and the allegations of excuse contained in the declaration are no part of the cause of action.
    4. Contracts—what limitation period for commencement of action not void. A provision of a bond requiring suit to be brought thereon, if at all, within a specified period, is not unreasonable, if where at the time of the expiration of the limitation the amount of damages sustained by reason of default under the bond could not be ascertained,—a technical breach having occurred action might be brought and at least nominal damages recovered by virtue of which subsequent assessments of damages could be had under the statute.
    5. Bonds-—nature of assessments of damages under subsequent breaches. Assessments of damages, under section 20 of the Practice Act, are not new suits.
    Action in debt. Appeal from the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed November 12, 1908.
    Wilson, Moore & McIlvaine and Edwin White Moore, for appellant.
    Judah, Willard, Wolf & Reichmann, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

November 25, 1903, the appellant, Jacob H. Lesher, brought suit against the appellee, the United States Fidelity & Guaranty Co. and Henry W. Schlueter. May 6, 1906, the suit, on appellant’s motion, was dismissed as to Schlueter. The suit is on a bond of date August 25, 1902, in the penalty of $50,000, executed by appellee and Schlueter to appellant. One of the conditions of the bond is as follows:

“Third. That in no event shall the surety be liable for a greater sum than the penalty of this bond, or subject to any suit, action or other proceeding thereon that is instituted later than the 15th day of March, A. D. 1903”.

In an amended declaration, filed May 6, 1905, there is set out, in words and figures, next after the formal commencement, a contract, dated August 22, 1905, between Henry W. Schlueter and J. H. Lesher, by which Schlueter agrees to construct a building and provide all material and work for the same, according to certain specifications and plans shown on drawings prepared by certain named architects. Article 6 of the agreement provides: “The contractor shall complete the several portions and the whole of the work comprehended in this agreement by and at the time hereinafter stated, the entire work of this contract to be completed on or before December fifteenth, 1902 ’ ’. The bond, a condition, of which is above quoted, is then set out, followed by assignments of breaches of the conditions of the bond, one of which is as follows:

“And for assigning a further breach of the condition of said writing obligatory, plaintiff says that by the contract with the plaintiff above herein described the said Schlueter covenanted and agreed that the entire work described in the said contract should be completed on or before December 15th, 1902; but the plaintiff avers that the said Schlueter did not complete the said building within the said time, nor for a long time thereafter, to-wit, six months, and that due notice of such default was given to the defendant at the time and in the manner required by said writing obligatory; that said building was an office and store building, for office and mercantile purposes, as shown in the plans and specifications described in said contract, and this was well known to the said Schlueter and to the defendant herein; and it was well known to the said Schlueter and to this defendant that in case the said building should not be completed by the time aforesaid plaintiff would be deprived of a large amount of gains and profits which he would otherwise make as and for the rentals and rental value thereof during the time that would.be lost by such default; nevertheless, the said Schlueter did not nor would, although often requested, complete the said building at the time required by said contract, nor within the period last above mentioned, and that the rentals and rental value of the said property during the said period, which the plaintiff lost thereby, was very great, to-wit, the sum of ten thousand dollars ’ ’, etc.

The declaration, in the concluding part thereof, contains the following averments:

“And plaintiff further shows that the plaintiff on his part complied with all and singular the provisions and requirements of the said writing obligatory on his part to be kept and performed, excepting only that this present action by the plaintiff against the said defendant was not brought on or prior to March 15,1903; and in respect to said provision or requirement of the said writing obligatory the plaintiff avers that the said building which should by the terms of said contract have been completed by December 15th, 1902, was not in fact completed for a long time, to-wit, for the period of eleven months thereafter, and that on March 15th, 1903, the said building was in an uncompleted state and the said Schlueter was still engaged in the construction thereof and in laboring in and about the same with numerous employes and sub-contractors; and that it was not known to the plaintiff at the said date, and could not have been known at the said time nor until long afterwards, to-wit, eleven months, what injury, loss or damage, if any, would be sustained by the plaintiff by reason of said breach of contract, nor whether the said Schlueter would himself indemnify and save harmless the said plaintiff from any pecuniary loss resulting from such breach of the terms, covenants and conditions of said contract; and that the said loss or- damage could not have been known to the plaintiff until shortly before the time when he brought this present action; nor could the plaintiff, until the last work done or caused to be done by the said Sehlueter upon the said building had been completed, have known or in any way ascertained the amount which the defendant herein ought to pay the plaintiff by virtue of the covenants and provisions of the said instrument; nor could plaintiff by any means know or ascertain that the defendant herein would decline or refuse to make good, without suit, the amount of such loss or damage when ascertained; by reason whereof the plaintiff avers that the said provisions of said writing obligatory that action thereon should be brought by March 15th, 1903, was unreasonable and void; and that plaintiff was not in any way bound thereby.”

Appellee demurred to the declaration generally and specially, and the court, July 8, 1905, overruled the demurrer and ruled appellee to plead to the declaration within thirty days, which time was subsequently extended till September 30, 1905. September 25, 1905, appellee filed thirteen pleas. Appellant demurred generally and specially to the 1st, 3rd, 5th, 6th, 7th, 8th, 9th, 11th and 13th pleas. The 13th plea is as follows :

“And for a further plea in this behalf, the defendant says the plaintiff ought not to have his aforesaid action against it, the defendant, because it says that the plaintiff did not commence his said action on or before the 15th day of March, A. D. 1903, but, on the contrary thereof, commenced his said action on or about the 27th day of November, 1903, contrary to the terms and conditions of the said writing obligatory; and this the defendant is ready to verify; wherefore it prays judgment if the plaintiff ought to have his'aforesaid action, etc”.

The following causes of demurrer are assigned:

“The said thirteenth plea is not a sufficient plea to the said declaration, since it sets up and relies upon matters which are defenses of law alone”. The said thirteenth plea is not sufficient as a plea to the said declaration, since it sets up matters and things already adjudged and determined against the defendant by its demurrer to the plaintiff’s declaration”.

June 15, 1907, the court overruled appellant’s demurrer to appellee’s thirteenth plea; appellant elected to stand by its demurrer, and the court rendered judgment in favor of appellee for its costs, and appellant prayed and was allowed an appeal.

Appellant has assigned as error the overruling his demurrer to appellee’s thirteenth plea. Appellant’s counsel rely on the following proposition: •

“That the right of appellant to maintain this suit notwithstanding the limitation was determined by the decision of the Superior Court on the demurrer to the declaration, and that appellee having obtained leave of the court to plead over and having filed various pleas, including the general issue, finally and definitely waived all objections to the amended declaration, and cannot be heard again to raise the same questions, and that the court erred in not sustaining appellant’s demurrer to the thirteenth plea”.

Counsel, in this proposition, and also in their argument, assume that the court, in overruling appellee’s demurrer to the declaration, conclusively adjudged that the matter of appellee’s thirteenth plea is not a bar to the action. This assumption is unwarranted by any rule or principle of common law pleading. “Pleading is the statement in a logical and legal form of the facts which constitute the plaintiff’s cause of action, or the defendant’s ground of defense; it is the formal mode of alleging that on the record which would be the support or the defense of the party in evidence”. 1 Chitty on Pl., 5 Am. ed., sec. 195; Kilgore v. Ferguson, 77 Ill. 213; 215.

“In general, whatever circumstances are necessary to constitute the cause of complaint, or the ground of defense, must be stated in the pleadings, and all beyond is surplusage”. 1 Chitty on Pl., sec. 196, top p. 195; Heard’s Stephen on Pl., 9 Am. ed. p. 422; Heard’s Gould’s Pl., 5th ed., pp. 41, 43; Ill. Steel Co. v. Schymanowski, 59 Ill. App. 32, 39; Liebold v. Green, 69 ib. 527, 533; Burnap v. Wight, 14 Ill. 301; Barnes v. Northern Trust Co., 169 ib. 112,118.

Matter of defense need not be stated in a declaration, because it comes properly from the other side. 1 Chitty on Pl., sec. 205; 4 Joyce on Insurance, parag. 3684.

The appellant’s cause of action is a breach or breaches of the contract between Schlueter and appellant, and, manifestly, the averment in the declaration that appellant did not commence his suit prior to March 15, 1903, and the averment, by way of excuse, for the omission so to do, are not facts constituting, or tending, with other facts, to constitute his cause of action. That appellant did not commence suit before March 15, 1903, is matter of defense, and if the appellee should plead this in bar of the suit, any valid reason which appellant might have for not commencing suit before that time he might reply. In Andes Co. v. Fish, 71 Ill. 620, the court, referring to P. F. & M. Ins. Co. v. Whitehill, 25 Ill. 382, say: “It is true, in the first of these cases it was said, that there should be a proper averment of the facts relied on to excuse the delay in bringing the suit, in the declaration, which was not done here; but that remark was unnecessary to the decision of the question then before the court, and cannot be held as committing us to the doctrine that it is indispensable that such facts be averred in the declaration. This provision in the policy, requiring suit to 'be brought for loss within twelve months after the loss occurs, is, in that opinion, previously discussed, and upheld upon, the principle that it is a reasonable limitation upon the bringing of such suits. Adhering to that reasoning, as we still do, it logically follows that-the same rules of pleading should be allowable in respect to it as to other limitations of actions, and that the limitation, if insisted upon, should be set up by the defense, when the plaintiff may reply the facts relied upon as excusing what would otherwise have been laches in bringing the suit”.

In 4 Joyce on Insurance, sec. 3223, the author says: “In a suit brought after the expiration of twelve months it is not necessary for the plaintiff to 'allege any excuse for not bringing it within the time, but the same rule of pleading applies as to other limitations of actions. If it is insisted upon, it must be set up by the defense, and the plaintiff may then reply to the facts relied upon as his excuse for not bringing his suit within' the

time limited”. See, also, Corrigan v. Reilly, 64 Ill. App. 124.

A demurrer does not reach surplusage, the reason being utile per inutile non vitiatur. Heard’s Stephen on Pl., sec. 424, top p. 423; Burnap v. Wight, 14 Ill. 307, 303.

Surplusage may be rejected by the court and need not be proved. Heard’s Gould’s Pleadings, top pp. 149-50. And it niay be'struck out on motion. Heard’s Gould’s Pl., top p. 143, note.

Appellee’s counsel, while assigning special grounds of demurrer to the declaration, did not specially demur to appellant’s admission that it did not commence suit within the time limited by the bond, or its alleged reason for that omission. It is familiar law that the statute of limitations, to be availed of, must be specially pleaded as defense. The same rule applies in the case of a contractual limitation. 4 Joyce on Ins., sec. 3223.

The' law being as stated appellant’s alleged reasons for not commencing suit before March 15, 1903, were not before the court for consideration, in passing on appellee’s demurrer to the declaration. Therefore, the court did not, in overruling the demurrer, adjudge appellant’s right, notwithstanding” the limitation, to maintain his suit, as his 'counsel claim. The 13th plea of appellee is a plea in bar of the action. The sole question raised by appellant’s demurrer to the plea is, whether it is a sufficient plea in bar. Manifestly, the demurrer raised no question as to whether the plea was or was not regularly filed. Appellant, by demurring to it, invited consideration as to its validity by the court, and while appellant may properly call in question the oorrectnéss of the court’s decision overruling the demurrer to the plea, he is not in a position to complain that the court considered the plea and passed on its sufficie’ncy. In other words, he cannot complain of the court having done that which, by his demurrer, he impliedly requested the court to do.

But counsel for appellant contend that the limitation, which is pleaded in bar by appellee, is unreasonable and invalid, for the reasons set forth in the declaration, quoted supra, viz.: that the building was not completed December 15, 1902, and was uncompleted March 15, 1903, and that it was not known to appellant at the last date, and could not have been known to him till shortly before bringing suit, what loss or damage would be sustained by appellant, etc. Counsel, after quoting the provision in the contract, that “should the contractor fail to complete the work on or before the date agreed upon, he shall pay to or allow the owner, by way of liquidated damages, the sum of $1,000 per diem for each day thereafter that the work remains uncompleted”, and after stating that the delay in the completion of the building was the main element of loss, say: “In view of this situation, is it- possible that the parties could have intended to agree that although the bond was given to secure that particular element of loss, and covenanted in terms that the builder ‘should well and truly indemnify and save harmless the obligee’ therefrom, nevertheless if the loss should be so substantial and the delay so material as to extend beyond March 15, the damage to the obligee, although largely increased by that circumstance, could not be recovered at all?” Section 20 of the Practice Act is as follows: “In actions brought on penal bonds, conditioned for the performance of covenant, the plaintiff shall set out the conditions thereof, and may assign in his declaration as many breaches as he may think fit; and the jury, whether on trial of the issue or of inquiry, shall assess the damages for so many breaches as the plaintiff shall prove, and the judgment for the penalty shall stand as a security for such other breaches. as may afterwards happen, and the plaintiff may, at any time afterwards, sue out a writ of inquiry to assess damages for the breach of any covenant or covenants contained in such bond, subsequent to the former trial or inquiry; and whenever execution shall be issued on such judgment, the clerk shall endorse thereon the amount of damages assessed by the jury, with the costs of suit, and the sheriff or coroner shall only collect the amount so indorsed: Provided, that in all cases where a writ of inquiry of damages shall be issued for any such breaches subsequent to the first trial or inquiry, the defendant, or his agent or attorney, shall have at least ten days’ notice, in writing, of the time of executing the same”. Hurd’s Stats., p. 1534. Section 35 of the Practice Act of 1907 is the same. Laws 1907, p. 444.

Appellant was entitled to sue on the first breach, which, so far as appears from the record, was the noncompletion of the building by December 15, 1902. Under section 20, appellant could have commenced suit prior to March 15, 1903, for this breach, and could have recovered at least nominal, if not actual, damages, and thereafter might have sued out writs of inquiry and assigned subsequent breaches. Dent v. Davison, 52 Ill. 109; McDole v. McDole, 106 ib. 452.

Appellant’s counsel say that the subsequent proceedings authorized by section 20 are equivalent to new suits; but the court, in Dent v. Davison, supra, shows that the very object of the section is to prevent multiplicity of suits. Counsel insist that the limitation in question should be construed so as not to apply to damages which could not accrue until the building should be completed. The language of the limitation is, “In no event shall the surety be liable for a greater sum than the penalty of this bond, or subject to any suit, action, or other proceeding thereon, that is instituted later than March 15, 1903”. The language limiting a suit or action is too plain and unmistakable to require or even admit of construction. In Johnson v. Humbolt Insurance Co., 91 Ill. 92, the condition of the policy was, that no suit or action against the company should be sustained, unless such suit or action should be commenced within twelve months after the loss should occur. The court held that the language meant twelve months after the fire, and said: “All persons know that in giving force to laws and contracts of every description, the intention as therein expressed must govern. That intention must and can only he sought in the language employed in the instrument itself, and from the ordinary or popular meaning' of the words themselves, unless it is apparent they are used in a technical or particular sense”.

Counsel, contending that the construction should be liberal in favor of appellant, cite numerous authorities to the effect that companies such as appellant are insurance companies. In 1 Joyce on Insurance, paragraph 209, the author says: “The casés are numerous which hold that the first object of construction is to ascertain the intentions or meaning of the parties, and to understand the contract accordingly”. Also: “We suggest that, if the words are clear and precise, it is not an unreasonable presumption that the parties intended that meaning which the words used fairly express, even though the parties may have actually intended otherwise”; and in paragraph 219 it is said: “If the terms of the contract are express, the court cannot extend or enlarge the contract by implication, so as to embrace an object distinct from that originally contemplated”.

Appellant must be presumed!, in the absence of evidence to the contrary, to be of ordinary intelligence, and no man of ordinary intelligence can, as we think, misunderstand the very plain language of the limitation. It was provided, in the building contract, and contemplated by the parties to that contract, that the building would be completed by December 15, 1902, and the limitation of suit to March 15, 1903, three months from the former date, is not unreasonable.

In Riddlesbarger v. Hartford Insurance Co., 7 Wallace, 386, the court, referring to the limitation clause in the policy, say: “It is clearly for the interest of the insurance companies that the extent of losses sustained by them should be speedily ascertained, and it is equally for the interest of the assured that the loss should be speedily adjusted and paid”. Ib. 340.

We can find no reason for holding that the limitation clause in question is unreasonable, and are of opinion that it is valid and binding and should be enforced (4 Joyce, on Insurance, parag. 3181), and that the trial court did not err in overruling appellant’s demurrer to appellee’s thirteenth plea. Therefore, the judgment will be affirmed.

Affirmed.


text:
    Louisa A. Hausler, Administratix, Appellee, v. Commonwealth Electric Company, Appellant.
    Gen. No. 13,999.
    1. Evidence—effect of non-production. A jury is entitled to infer that evidence not produced which a party might have produced, if produced might have been unfavorable to such party.
    2. Electricity—care required of those employing. A corporation employing electric wires of high voltage in connection with its business is bound to exercise a degree of care commensurate with the danger; such a company is required properly to insulate such wires.
    3. Ordinance—duty to observe provisions of, requiring protection of electric wires. An electric light company which accepts a franchise ordinance is bound to obey its provisions requiring insulation and protection of electric wires; its failure so to do constitutes actionable negligence in favor of a person injured in consequence.
    4. Contributory negligence—what not. A person who was required in connection with his duty to handle electric light wires is not required to examine critically every part of such wires; such a person has a right to assume that the owner of such wires has performed its duty properly to insulate and protect the same.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed November 12, 1908.
    Statement Tby the Court. Appellee’s intestate, John H. Hausler, was killed by a shock of electricity, between nine and ten o’clock in the morning of May 3, 1902, leaving him surviving the appellee, his widow, and four children, aged respectively, ten years, seven years, five years and one year. Appellee sued appellant, claiming that the death of her intestate was caused by its negligence. The jury found for appellee and assessed her damages at the sum of $3,000, and the court, after overruling appellant’s motions for a new trial and in arrest of judgment, rendered judgment on the verdict. From this judgment appellant has appealed. Ho question is raised as to the sufficiency of the declaration, to which the appellant pleaded the general issue. The declaration charges insufficient insulation of appellant’s wires, and also that appellant did not guard its wires as required by an ordinance of the city of Chicago. The ordinance and its acceptance by appellant are as follows:
    “Be it ordained by the City Council of the City of Chicago: Sec. 1: Subject to the terms and conditions of this Ordinance, there is hereby granted to the Commonwealth Electric Company, a corporation organized and existing under and by virtue of the laws of the State of Illinois, the right to construct, maintain and operate a plant or plants, and in connection therewith to construct, repair, maintain, operate and use in, through, upon, over and under the streets, avenues, alleys, sidewalks, public ways, tunnels and upon viaducts and under the Chicago river and its various branches within the City of Chicago, a line or lines of wires or other electrical conductors to be used for the production, transmission and distribution of electricity for the purposes of furnishing light, heat and power, and the transmission of sound and signals, or any or either of them.
    “Sec. 6. All conductors and wires owned and operated by the said company under the provisions of this ordinance shall be properly insulated and all overhead conductors used by said company shall be protected by guard wires or other suitable mechanical device or devices.”
    “Chicago, 19th of Sept., 1897. To the City of Chicago, and Wm. Loeffier, Chicago City Clerk: We beg • leave to advise you that the Commonwealth Electric Co. accepts the ordinance granting us certain rights and privileges, and requiring us to perform certain duties and obligations, passed by the council of said city on the 21st day of June, 1897, and again passed over the Mayor’s veto on the 28th day of June, 1897, and we agree to perform said duties and obligations imposed upon us.
    The Commonwealth Electric Co./ By Wm. K. Petterson, Pres.”
    The accident occurred in a north and south alley, south of Sixty-sixth place, which lies east and west and is intersected or crossed by the alley. The poles north of Sixty-sixth place belonged to the Chicago Telephone Company, and only that company’s wires were strung on them. South of Sixty-sixth place the poles were combination poles and were for the use of appellant and the telephone company. All the poles, both north and south of Sixty-sixth place, were on the east side of the alley, and the first combination pole south of Sixty-sixth place was at the southeast corner of Sixty-sixth place and the alley. The wires of appellant running south were strung on the west part of a cross-arm, which arm was about thirty feet from the ground. They were for the conveyance of light and power, and their voltage was 2,100 to 2,300 volts. The cross-arms on the combination poles for the use of the telephone company were four or five feet below the cross-arms supporting appellant’s wires. The combination poles were about 100 feet apart, as testified by one witness, and sixty-seven or sixty-eight feet apart, as testified by another witness. ■
    John H. Hausler, deceased, was thirty-six years of age at the time of the accident, May 3, 1902. He, with James Creesey, C. T. Robinson, Edward Wiltse and' James Flood, linemen and employes of the telephone company, went to the -alley to string wires on the combination poles. The deceased was foreman over the other men and of large experience in the business in which he was engaged. The wire to be strung was copper wire and was on a reel in a wagon situated north of the first pole in the alley north of Sixty-sixth place. Flood was in the wagon and his duty was to give out the wire from the reel as it should be needed for placing it on the cross-arms. Some of the wire was unreeled and a handline attached to it, and by direction of the deceased Robinson climbed the first pole north of Sixty-sixth place, on which only the telephone wires were-strung, taking the handline with him. He then drew the wire up, unfastened the hand-line and passed the wire over the cross-arm and down to the ground. The deceased then took the end of the wire south with him, and when he was about twenty-five feet south of the pole at the southeast corner of Sixty-sixth place and the alley, and which was the first combination pole on the south side of Sixty-sixth place, he swung the wire on the lower cross-arm of that pole. He then walked south in the alley from that pole, taking the wire with him, and when about 140 feet distant from the pole at the corner of Sixty-sixth place and the alley, he faced north and attempted to swing the wire onto the lower cross-arm of the second combination pole south of the alley. The wire, when swung instead- of lighting on the cross-arm crossed over one of appellant’s wires so that a loop about two feet in depth hung down on the east side of appellant’s wire. The evidence tends to prove that appellant’s wire sagged in the middle of the span, so that it would be about eighteen inches or two feet distant from the telephone wire, if the latter were on the lower cross-arm and taut. When the copper wire came in contact with appellant’s wire and formed a loop, as stated, the deceased, who was holding the end of the copper wire, fell dead, and Flood, to whom the deceased had halloed just before the accident, to hold the reel, also fell dead in the wagon.
    E. E. Gray, F. J. Canty and J. C. M. Clow, for appellant.
    W. S. Johnson, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Appellant’s counsel contend that the verdict is contrary to the evidence; that appellant’s wires were properly insulated; that appellant was not guilty of negligence, and that the deceased was guilty of negligence which contributed to the injury. James Creesey, Edward Wiltse and C. T. Bobinson, the three linemen who, with Flood, deceased, were working under appellee’s intestate at the time in question, testified that immediately after the deceased fell, they examined, from end to end, the first span of appellant’s wire next south of the alley, and which extended from the pole at the southeast corner of Sixty-sixth street and the alley to the pole next south of that pole, for the purpose of ascertaining the cause of the accident; that they examined it from the ground directly underneath it.

Creesey testified that there was a bare joint in the wire about seventy-five feet from where the deceased lay, when he fell, and about thirty feet north of the pole the deceased was trying to throw the wire onto, and that the joint was dark, like the wire itself, and appeared as if it had never been taped.

Wiltse testified that the joint was nearly forty-five to fifty feet south of the corner pole and was untaped and very dark in color. Bobinson also testified to finding a bare, untaped joint in the span of wire mentioned.

There is evidence tending to prove that the joint referred to by the witnesses was about the place where the copper wire swung by the deceased looped over appellant’s live wire. Witnesses called by appellant testified, in substance, as follows:

H. M. Weber, claim agent for Chicago Telephone Co.: Went to the place of accident about eleven o’clock the day of the accident, in company with Mr. Boss and Mr. Berry, claim agent of appellant, and found a joint in the appellant’s wire about thirty-three and one-half feet from the pole at corner of alley; that there was a tape connection on the electric wire, and a small piece of tape, an inch or an inch and a half, hanging from it. This taped connection was the only joint he saw. Berry testified: “There was a joint in the span near the middle, I noticed. It is what is called a taped joint, where a connection had been made, and a small piece, about an inch I should say, of tape hanging down from the north end of the joint”. “All I could observe from the ground was that the joint appeared to be properly taped”.

H. H. Lovell, foreman, in the construction department of the Chicago Telephone Co. in 1902, testified that he went to the place of the accident about eleven o’clock in the morning of May 3, 1902. He says: “There was apparently a joint about twenty-five feet south of this corner pole that was covered with tape. One end of that appeared to be a little unravelled, which might be due to the action of the weather, but there was no bare place that I could discover from the ground. The Commonwealth wires were insulated. I discovered no other disturbance of the insulation except at the joint, as I have stated”. On cross-examination this witness testified: “There was a joint there apparently about four inches long, which had been wrapped with insulating tape, to complete the insulation on this wire, and at the north end, as I remember it, it was apparently loose, that is, loosened or ruffled up a little bit. I don’t know that it was unravelled any except that it had the appearance of being ruffled up”.

Wm. L. Seese, appellant’s general foreman, testified that he visited the place of the accident with Mr. Biley, a clerk in his office, early Sunday morning, the next day after the accident. He says: “There was a joint in the west wire of the first span south of Sixty-sixth place. I could see, by standing on the ground and looking up, that the joint was taped. A piece of- the tape about an inch long was hanging at the north end of the joint”. Biley, Mr. Seese’s clerk, testified substantially as did Mr. Seese.

The testimony of these witnesses is not inconsistent with the claim of appellee’s counsel that the joint was not properly insulated.

A. D. Alexander, appellant’s superintendent, testified that the Monday next after the accident, whiche happened Saturday, he sent his foreman to the place of the accident, and that a coil of wire was brought to him, which he examined, and that there was a taped joint in the wire; that he kept the wire in his office probably a month, and then sent it to appellant’s general offices, 139 Adams street, and has not since seen it, and don’t know where it is.

Frank Brugaman, A. L. Newcomb and James B. Murdock, who were in appellant’s employ at the time of the accident, were sent to cut out the span of wire in question. Brugaman testified that the wire was the first span of wire south of Sixty-sixth place, and that he saw it after it was cut down; that there was a joint in it, which was taped, that he did not remember that there was, any tape hanging' from the joint, but there was a small hole burned in the tape. He also testified that he took the wire to Mr. Alexander’s office, also took it to the coroner’s inquest, and after the inquest took it back to Mr. Alexander’s office, left it there and never saw it again.

Wakefield testified that he went up the corner pole and Murdock went up the next pole south, and that they put up a new wire and cut the other one down. He says the joint in the wire was taped, but had been jammed or moved and pulled off at one end of the joint, and that, with the exception of the little spot at the north end of the joint, it was taped; that Mr. Brugaman took the wire away and he, witness, had not since seen it.

A. L. Newcomb, the foreman of the men who cut out the span of.wire, testified: “The wire was insulated and was in fairly good condition. There was a joint in it which was taped. There was a burned speck in the tape at one end of the joint. With that exception, the insulation was complete”.

The evidence of these witnesses plainly indicates that the insulation of the joint was defective. The cutting out of the old span of wire and putting in a new span could only have been for one of two reasons —either because the old span was so defective as to render its removal necessary, or because it was desired to preserve it as evidence in the event of a suit. That a suit was anticipated is' evident from the testimony of Carl A. Boss, a clerk in the office of Holt, Wheeler & Sidley, attorneys for the Chicago Telephone Co. He testified that, on or about May 3, 1902, ■ he went to the place of the accident and examined the span of wire in question. The wire was not produced on the trial nor was its non-production satisfactorily accounted for. Berry, appellant’s claim agent, testified that he made a search for it and could not find it, but failed to state where he searched or how much of a search he made. His was the only evidence of any search. In the case of a written instrument claimed to have been lost such evidence would not be a sufficient basis for secondary evidence. The coil of wire would have been competent and important evidence, on proof that it was in the same condition as it was at the time of the accident, and the jury had the right, as we think, to infer that if produced it would be unfavorable to appellant’s defense. There.is no direct positive testimony of any witness that the copper wire, which was being strung, came in contact with the joint in appellant’s wire; but we think it legitimately infer-able from the evidence that it did. However, it is not essential to appellee’s recovery that snch contact should be proved, as the declaration charges, generally defective and insufficient insulation of appellant’s wires. The jury were confronted with these pregnant facts: appellee’s intestate was dead; his death was caused by a powerful current of electricity passing from appellant’s wire to the wire the end of which the deceased held in his hand and this could not have happened had appellant’s wire been properly insulated. It was appellant’s duty, independently of any express obligation, to exercise care commensurate with the danger, and the danger in the case of wires of such high-voltage as appellant’s wires is very great. Alton Ry. & Illuminating Co. v. Foulds, Admr., 190 Ill. 367.

It was appellant’s duty not only to properly insulate its wires, but to maintain such insulation. Hebert v. Lake Charles etc. Co., 64 Lawyer’s Rep. Ann. 106, La.

The ordinance of the city and its acceptance by appellant constitute a contract between appellant and the city, and by that contract appellant bound itself to properly insulate all its wires, and protect them “by guard wires or other suitable mechanical devices”. It did neither of these things. The evidence is uncontradicted that appellant’s wires were not guarded in any way. Appellant took the license of the city cum onere, and while it has availed of the benefits, it has failed to perform the corresponding obligations. Appellant, in thus failing, was guilty of negligence. Commonwealth Electric Co. v. Rose, 214 Ill. 545.

The alley south of Sixty-sixth place is a public alley, and the poles there are combination poles, for the use of appellant and the Chicago Telephone Company, and appellant must be held to have anticipated that the public would use the alley, and that the telephone company would use the poles in proximity to appellant’s wires, in attending to their duties. This independently of any contract obligation. Rowe v. Taylorville Elec. Co., 213 Ill. 318, 322-3.

The contention of appellant’s counsel that the verdict is contrary to the weight of the evidence, on the question of appellant’s negligence, cannot be sustained. Counsel for appellant argue that the deceased was guilty of negligence which contributed to the injury, in flipping the wire instead of climbing the pole and placing it on the cross-arm; and in not examining appellant ’s wire before attempting to place the telephone wire on the cross-arm; and in standing on wet or damp ground, which is a conductor, while swinging the wire. The evidence shows that the span of wire in question, with the exception of the joint, appeared to be insulated; that the defect in the insulation of the joint could only be observed by one standing directly beneath it and critically observing it, and that it was dark and of about the same color as the other wire in the span. It was not the duty of the deceased to examine critically every part of the wire before proceeding with his work. He had the right to assume that appellant had performed its duty to properly insulate' every part of its wire, and to maintain such insulation. The duty of constant supervision and necessary inspection was appellant’s duty. It was abundantly proved that the ground on which the deceased stood was not wet, but was dry. The question whether the deceased exercised ordinary care was fully presented to the jury, by instructions given at appellant’s request, and we are satisfied with the verdict of the jury, which necessarily includes a finding that he did.

The judgment will be affirmed.

Affirmed.


author: Mb. Presiding Justice Adams

text:
    Philadelphia Savings Fund Society, Appellant, v. Charles W. Lasher et al., Appellees.
    Gen. No. 13,981.
    1. Mortgages—character of, given by wife to secure husband’s debt. A wife who gives a mortgage to secure her husband’s debt is bound as a principal.
    2. Election—when may be rescinded even as against surety. The holder of a mortgage security may rescind an election to declare the principal sum due and dismiss a bill to foreclose even as to a surety where the mortgage specifically provides for the right of rescission.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed November 12, 1908.
    Rehearing denied November 30, 1908.
    Mason Brothers, for appellant.
    Leslie A. Needham, for appellees.
   Mb. Presiding Justice Adams

delivered the opinion of the court.

June 22, 1905, appellant filed a bill against Charles W. Lasher and his wife, Jane E. Lasher, which was subsequently amended by making Charles W. Moeller a defendant, and in other particulars. The bill is to' foreclose two mortgages executed to appellant by appellees, Charles W. Lasher and Jane E. Lasher, to secure payment of a promissory note of Charles W. Lasher of date April 11, 1903, for the sum of $35,000, with interest at the rate of five per cent., payable semi-annually on the 11th day of October and in April in each year, till the principal sum should be fully paid, the instalments of interest being evidenced by coupon notes. One of the mortgages sought to be foreclosed is of the same date as the notes, April 11, 1903, and conveys to appellant lots 1 to 4,.both inclusive, in block 1-8 in Butler, Wright & Webster’s addition to Chicago, Illinois, which is referred to as the Chicago avenue property, or the Chicago avenue and Orleans street property. The other mortgage is dated July 20, 1903, and conveys to appellant lots 18 to 21, both inclusive, in John S. Bussing’s subdivision of block 10, in Wolcott’s addition to Chicago, Illinois, and is referred to as the Dearborn avenue property. Each of the mortgages contains the following provisions:

“And it is stipulated and agreed that in case of default in any of said payments of principal or interest, as aforesaid, or of a breach of any of the covenants or agreements herein contained, then and in that case, the whole principal sum hereby secured, and the unpaid interest thereon, shall, at the option of the legal holder of said note (without notice thereof to said party of the first part, their heirs, assigns or legal representatives) becomes at once due and payable. And, after the exercise of such option, such legal holder may elect to revoke the same, and may receive any portion of said indebtedness hereby secured, and the rights of said party of the second part hereunder shall thereafter remain in full force, and be the same as to the remainder of such indebtedness, or any part thereof, as if such option had not been exercised, and such legal holder shall have the right to exercise such option and revoke the same in like manner, from time to time, in case of any such default or breach aforesaid, the rights of said party of the second part remaining the same, after any such revocation, as if such option had not been exercised.”

By extension agreement, in writing, between appellant and Charles W. Lasher, of date February 24, 1898, the time of payment of the principal sum due, $35,000, was extended till April 11, 1903, with interest at five per cent, payable semi-annually.

July 20, 1903, by written agreement between appellant and Charles W. Lasher, the timé of payment was extended from April 11, 1903, till April 11, 1908, the said principal sum to be paid as follows: four payments of $1,000 each on or before the 11th day of April in the years 1904, 1905, 1906 and 1908, with interest thereon from April 11, 1903, and $31,000 of the principal sum on or before April 11, 1908, with interest thereon until paid at five per cent, per annum, payable semi-annually on the first days of April and October.

May 28, 1904, appellant filed a bill to foreclose the mortgages for default in the payment of interest and $1,000 principal payable April 11, 1904. June 1, 1904, suit was dismissed by appellant, the amount in default having been paid.

The present bill, filed June 22,1905, avers that there is due to appellant $34,000, with interest thereon at five per cent, from April 11, 1905, and $850, with interest at seven per cent, from April 11, 1905, and $1,750 as solicitor’s fees.

The issues having been made up, the cause was referred to a master, who reported favorably for appellant and found and recommended as follows: “I find, therefore, that all the material allegations of the complainant’s bill of complaint are proven and true, and recommend that the prayer of said bill for the foreclosure of said mortgages for the sum of $39,899.60 be granted”.

Appellees, Charles W. Lasher and Charles W. Moeller, filed objections to the master’s report, which by the decree were ordered to stand as exceptions. No objections or exceptions were filed by Mrs. Lasher. March 23, 1907, the court rendered a decree sustaining the exceptions of Charles W. Lasher and Moeller as to lots 18 to 21, both inclusive, being the Dearborn avenue property above mentioned, and overruling said exceptions as to lots 1 to 4, both inclusive, being the Chicago avenue property above mentioned, and approving the master’s report as to the Chicago avenue property and disapproving it as to the Dearborn avenue property, and finding that there was due to complainant the sum of $37,689.60, with legal interest from November 22, 1906, the date of the master’s report; also $1,750 found due by said report as a reasonable solicitor’s fee, under the provisions of the instruments sued on. The court dismissed the bill for want of equity as to the Dearborn avenue property and decreed a foreclosure of the mortgage of the Chicago avenue property.

The appellant has assigned errors and appellee, Charles W. Moeller, has assigned cross-errors.

Charles W. Lasher was the owner of the Chicago avenue property April 11, 1893, the date of the execution of the mortgage by him and his wife of that property. Subsequently, June 10, 1901, he purchased the property at a foreclosure sale, subject to the lien of appellant acquired by the mortgage of April 11, 1903, and a certificate of purchase was issued to him, which certificate he assigned to Jane E. Lasher December 15, 1905. The assignment is expressed to be “for value received”. December 16, 1903, the master executed a deed to Jane E. Lasher, as assignee of the certificate of purchase, which deed contains the following: “Subject, however, to the lien of the principal note and all unpaid coupon notes secured by the mortgage set out in said bill, and whatever sum or sums of money may be due and payable, or may hereafter become due and payable, under the terms and provisions of said mortgage, to the respective holder or holders of said note and remaining interest notes”. The bill for foreclosure, under the decree on which the forclosure sale was had, was filed by Charles W. Lasher against Howard Copeland et ah, and the bill sets, forth Lasher’s indebtedness to appellant and that he executed'the mortgage of April 11,1893, as security for the same. July 20, 1903, when the mortgage of the Dearborn avenue property was executed, Jane E. Lasher was the owner of that property. She became such owner March 28, 1901. Charles W. Lasher and Jane E. Lasher executed to appellee Moeller two quitclaim deeds, each dated June 22, 1905, one of their interest in the Chicago avenue property and the other of their interest, in the Dearborn avenue property, the expressed consideration in each deed being one dollar. It was admitted by counsel for Charles W. Moeller, appellee, in open court, that Moeller took said deeds pendente lite, and had no interest in the quit-claimed premises beyond that owned by the grantors. Therefore, Moeller stands in the shoes of his grantors in this suit. Counsel for appellee Moeller frankly admits that in December, 1903, the two mortgages were liens on the two properties and so continued till the transaction of May 28th, to June 14, 1904; but contends that Mrs. Lasher was, May 28, 1904, the owner of both the properties, and that, in executing the Dearborn avenue mortgage, she became surety for her husband’s indebtedness, and that, as such surety, she was entitled to notice of appellant’s revocation of its election of May 28, 1904, to declare the whole indebtedness due for default in payment. For greater certainty as to the exact contention of counsel, we quote the following under heading “C” in his brief of points:

“By the terms of the mortgages, appellant possessed the right, first, on default without notice, to declare the indebtedness at once due. Second, to revoke such election and receive any portion of principal or interest. Third, appellant’s rights thereupon to be as though no election and revocation had been made. But appellant had no right to revoke its election of May 28, 1904, without notice to the surety, or to file a bill and incur costs, or to receive payment other than principal and interest”.

Mrs. Lasher executed both mortgages and next following the provision in each mortgage giving to the legal holder of the secured note the option of declaring the whole indebtedness due, are the following provisions :

“And after the exercise of such option such legal holder may elect to revoke the same, and may receive any portion of said indebtedness hereby secured, and the rights of said party of the second part hereunder shall thereafter remain in full force and he the same as to the remainder of such indebtedness as if such option had not been exercised; and such legal holder shall have the right to exercise such option and revoke the same in like manner from time to time, in case of any such default or breach aforesaid, the rights of said party of the second phrt remaining the same after any such revocation as if such option had not been exercised”.

Therefore, when appellant revoked its election of May 28, 1904, to declare the whole indebtedness dne, and dismissed its bill filed at that date, it was, by the very terms of the contract, in the same position as it would have been had such election not been made, namely, to again, from time to time, declare the whole indebtedness due, without notice, and to revoke such elections from time to time.

Benneson v. Savage, 130 Ill. 352, was a suit for the foreclosure of a trust deed. One ground of defense set up by plaintiffs in error, against whom the decree ran, was that the property in question was their property, and that, by virtue of the trust deed they were sureties for the indebtedness described therein, and that the trust deed was released without their consent. The court held against the contention, saying, among other things: “It is next objected that the mortgage was released by reason of the extension of the time of the payment of the debt without the consent of the mortgagors, Elvey W. Savage and Anna Wells, who were the real owners of the mortgaged property. The mortgage expressly recites, as was seen supra, that it is provided in the note which it secures, ‘that the holder thereof may extend the time for the payment of the whole or of any part thereof, on the maker executing coupons for interest to accrue thereon during such extension’.” In the present case express consent is given in plain, unambiguous terms, by the mortgages. In the written agreement of extension of the time of payment, of date July 20, 1903, between appellant and Charles W. Lasher, it is recited: “And whereas the said one principal note has become due and is now owned and held by the society, and said Charles W. Lasher and wife have requested of said society an extension of the time of payment thereof; Now”, etc.

Under date of July 30, 1903, the 10th day after the extension agreement of July 20th was executed, Mr. and Mrs. Lasher addressed to Mason Brothers, then solicitors for appellant, the following letter:

“Gentlemen: Learning from you that in the ex-' tension agreement, dated July 20, 1903, and in the mortgage of even, date therewith, both relating to $35,000 loan from The Philadelphia Saving Fund Society to Charles W. Lasher, there is a clerical error, stating that a certain mortgage originally and still securing said $35,000 loan, was recorded April 15,1893, whereas the actual date of recording was April 14, 1893, we hereby authorize correction to be made accordingly in said extension agreement and mortgage dated July 20, 1903, as fully and to all intents and purposes as though such correction had been made prior to the execution of said last mentioned agreement and mortgage, respectively.
Tours truly,
Chables W. Lasheb, Jane E. Lasheb”.

It is clear from this letter that Mrs. Lasher knew of the July 20th extension agreement and approved it, except as to the mistaken dates, which being true she is not in a position to complain of the revocation of the election of May 28, 1904, by the dismissal June 14, 1904, of the bill filed at the former date. Mrs. Lasher testified that she remembered of one extension and approved it. She also testified that she did not authorize an extension of the loan in 1904, which may mean that outside the mortgages she gave no express authority to extend it; but the evidence tends strongly to prove her husband acted as her agent in agreeing to the extensions and in respect to the property mortgaged. She testified that she expected her husband to attend to the loan, and that after the mortgage was made she left everything relating to the loan and the indebtedness and mortgage in Mr. Lasher’s hands. She further testified that she was consulted by Mr. Lasher in matters of importance. Asked whether she was consulted with regard to the last written extension, she answered, “I don’t know whether there was ever more than one. You say the last extension; I don’t know just—I only remember one”.

“Q. You were consulted as to that one, were you?
A. Yes.
Q. And you approved of that, did you not?
A. Yes, sir”.

The evidence shows that leases of the properties were executed by Charles W. Lasher in his wife’s name, by him as her attorney, and that he signed receipts for the rents, sometimes in his own name and sometimes in her’s, as her attorney, and Mrs. Lasher testified that she never personally paid any taxes on the property, or any interest, and she supposed that Mr. Lasher paid the interest and taxes out of the rentals. We are of opinion, as between Mrs. Lasher and appellant, she is not to be regarded as a surety, but as a principal.

In Jones on Mortgages, 6th ed., vol 4, sec. 114, the author says that in states in which a married woman is capable of binding her separate property by contract, “she is bound as principal when she makes a mortgage to secure her husband’s debts, and her liability is not affected by any understanding she may have with her husband, or by giving additional secur-. ity as collateral to the mortgage”; citing Alexander v. Bouton, 55 Cal. 15, which case we have examined and find that it fully supports the text. By the law of this State the mortgages in question are as effective as against Mrs. Lasher as if she had been a feme sole when she executed them. Hurd’s Rev. Stats. 1905, chap. 30, sec. 18, p. 466. But even though it should be held that Mrs. Lasher was a surety, this would not operate to discharge the lien of the mortgage of the Dearborn avenue property, because in view of the terms of that mortgage appellant had the right to revoke the election of May 28, 1904, without notice.

The bill filed May 28, 1904, was dismissed in pur. suance of an arrangement between appellant’s solicitors and Charles W. Lasher and Ms attorney, Mr. Ulysses G-. Hayden, on the payment by Mr. Lasher of the amount of principal and interest then due, and' $500 M addition. Mr. Lasher, in his examination in chief, calls the $500 a bonus. On cross-examination he said he did not know how Mason Bros, applied the $500, or what they called it. Both Henry B. and Henry D. Mason testified that the $500 was paid as solicitor’s fees for services performed in the suit which was dismissed, and that Mr. Hayden, whom Lasher had previously introduced to Mason Bros, as his attorney, paid the aggregate of the sums agreed on, including the $500, and that they receipted for the items paid. We think the preponderance of the evidence is that the $500 was paid by Mr. Lasher as a solicitor’s fee for services in the former suit. With respect to this payment appellant’s counsel objects that by the mortgages a solicitor’s fee can only be allowed in case of a decree, and that the acceptance of payment was in violation of the rights of Mrs. Lasher, inasmuch as it leaves her liable to the same extent as if the payment had not been made. While it is true that by each of the mortgages there is no provision for the allowance of solicitor’s fees, except by decree, it certainly does not follow that the payment by Mr. Lasher is necessarily prejudicial to Mrs. Lasher. Non constat that Mr. Lasher did not make the payment with his own money. That he so did must be presumed in the absence of evidence to the contrary. It is not included in the master’s estimate of the amount due to appellant, or in the court’s finding of the amount due, and so is not charged agamst the mortgaged premises. The foregoing includes all propositions argued by counsel for appellee Moeller, and propositions not argued must be deemed waived. Our opinion is that the dismissal of appellant’s bill for want of equity, as to the Dearborn avenue property, namely, lots 18, 19, 20 and 21 in John S. Bus sing’s subdivision of block 10 in Wolcott’s addition to Chicago in the county of Cook and state of Illinois, is error, and the court should have decreed the foreclosure of both mortgages.

No assignment or cross-assignment of error questions the correctness of the court’s finding of the amount due, which is the amount found due by the master, nor the allowance by the court of $1,750 as a reasonable solicitor’s fee; nor is it claimed by counsel for either party that such finding or allowance is incorrect or improper. That part of the decree dismissing the bill for want of equity as to the Dearborn avenue property, above described, will be reversed and the decree as to the Chicago avenue property, and in all other respects, will be affirmed, and the cause will be remanded with direction to enter a decree in conformity with this opinion. The appellant to recover its costs of this court and the Circuit Court.

Affirmed in part and reversed in part and remanded with directions.