text:
    Mutual Life Insurance Company of New York, Complainant v. John F Devine, Administrator and Fred G. Loebman, Defendants. On Appeal of John F. Devine, Administrator, Appellant, v. Fred G. Loebman, Appellee.
    Gen. No. 17,373.
    1. Insurance—conflict of laws. Policies of life insurance, like other contracts, are construed according to the law of the place where they are made.
    2. Conflict of laws—when common law is presumed to be m force. In construing a contract of another state when there is no proof of what the law of the place of the contract is, it is presumed that the common law is in force there.
    3. Insurance—conflict of laws. In an action on an insurance policy, where the application contains a provision that it will constitute no contract until the policy is issued, delivered and the first premium paid, and there is no evidence to show where the policy was delivered on the first premium paid, the contract will be construed according to the rules of the common law.
    4. Contracts—construction. ■ At common law contracts must be so construed as to carry into effect the real intent and understanding of the parties.
    5. Contracts—construction. Where the intent and understanding of the parties to a contract is sufficiently apparent, effect must be given to it, even if in so doing violence is done to the language employed, for greater regard is to be given to the clear intent of the parties than to any particular words used.
    6. Contracts—intent, how determined. In construing a contract, the intention of the parties must be ascertained from the words employed, the connection in which they are used, and the subject-matter of the contract.
    7. Contracts—when viewed from position of matter to determine intent. When necessary in construing a contract the court will put itself in the place of the parties and read the contract in the light of the objects they had in view and the circumstances surrounding them at the time it was made so as to understand the language in the sense intended.
    8. Contracts—construction. In construing a contract the scope and end of every matter covered by the contract is to be considered.
    9. Insurance—construction of policies. In construing a life insurance policy the intent of the insured as to who the beneficiary shall be controls.

      10. Insurance—construction of policy. Where insured has his policy issued payable to his wife “if living and if not, to their children or their guardian for their use” and, at the time, insured has only one child, the fact that the term “children” is used indicates that it is intended to designate a class.
    11. Wills—where fund is given to a class. Where by the terms of a will a fund is given to a class of persons, the determination of who belong to the class and who consequently are entitled to participate in the distribution of the fund is postponed until the death of the testator and the fund goes to .the survivor or survivors of the designated class.
    12. Insurance-—policy to be construed by rules applicable to construction of wills. In determining who are beneficiaries in an insurance policy the policy is to be construed by the rules applicable to the construction of wills.
    13. Insurance—where term “children” in an insurance policy describes a class. Where a bill of interpleader is filed by an insurance. company to determine who is entitled to certain insurance, the policy providing it should be payable to the wife “if living and if not, to their children or their guardian for their use,” and the insured survives his wife and daughter and dies leaving a son, it is held that the word “children” describes a class and the son being the only survivor is entitled to the insurance as against the administrator of the daughter.
    14. Insurance—vested rights of beneficiaries. The beneficiaries named in a policy of insurance have vested rights in the fund and only those named as beneficiaries have such rights.
    15. Insurance—who not beneficiary. Where insured has his policy issued payable to his wife “if living and if not, to their children or their guardian for their use,” a daughter who died ten years before her father, the insured, was not a beneficiary and never had a vested interest in the fund.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed May 21, 1913.
    Rehearing denied June 9, 1913.
    Gardner, Carton & Gardner, for appellant.
    Sabath & Levinson, for appellee; Leo W. Hoffman, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

On September 25, 1877, one Gustav Loebman, now deceased, applied to The Mutual Life Insurance Company of New York for a life insurance policy on his own life, in which application he named his wife, Sadde Loebman, as the beneficiary, if she should be living when the policy matured, and directed that if she should not then be living, the children of both himself and wife should receive the insurance money. On September 27, 1877, in due course of business, a policy was issued on such application, which contained the following provision:

“Does Promise To Pay to Sadde Loebman, Wife of Gustav Loebman, of Brookeville, Jefferson Co., Penna., for her sole use, if living, in conformity with the statute, and if not living, to their children, or their guardian, for their use, the sum, etc.”

When the policy was issued the insured and his wife, • Sadde, had one child, Fred G. Loebman, the appellee, who was born May 21, 1877, about four months before the policy in question was issued. On August 14, 1878, nearly eleven months after the policy was issued, a second child, Bertha, was born. These two children were the only children of the insured and his wife, Sadde. Sadde Loebman died December 13, 1896, leaving her surviving her two children, Fred and Bertha. In February, 1899, Bertha was married to one James M. Finn, and on March 15, 1899, she died leaving no will and no child or children, either of her body or by adoption, but leaving her father, Gustav Loebman, the insured, her husband, James M. Finn, and her brother, Fred G. Loebman, surviving her. Gustav Loebman survived his daughter, Bertha, more than ten years and died on July 31, 1909, leaving him surviving his son, Fred G. Loebman, the appellee, his only surviving child and the only surviving child of Ms wife, Sadde. The policy of insurance in question was kept alive by the insured by the payment of all premiums accruing up to the time of his death. Letters of administration were issued to John F. Devine in the estate of Bertha Loebman Finn, deceased, on January 11, 1910, almost ten and one-half years after her death. Proof of the death of Gustav Loebman being duly made, Fred G. Loebman made claim to the whole of the amount due on the policy of insurance and Devine, as administrator of the estate of Bertha Loebman Finn, demanded of the insurance company one-half of the amount so due. The insurance company paid to Fred G. Loebman one-half of the fund due on the policy and filed a bill of interpleader in the Circuit Court as to the other one-half, and made Fred G. Loebman and John F. Devine, administrator of the estate of Bertha Loebman Finn, parties defendant. The defendants interpleaded and the insurance company was discharged out of court upon its depositing with the clerk of the court the sum of $1,330.50, which was one-half of the amount due on the policy. The court found that Fred G. Loebman was entitled to the money so deposited with the clerk and so decreed. This appeal presents for review the correctness of that finding and decree.

The controversy centers around what construction should be placed on the clause in the policy above quoted, having particular reference to whether the term “children,” as there used, means the children who are living at the time the policy matures, or, in other words, those who survive the insured, or means all the children of the insured and his wife, Sadde, who were alive at the death of Sadde, regardless of whether they survived the insurer or not.

Policies of life insurance, like other contracts, must be construed according to the law of the place where they are made. If it is not known where a contract is made, then the common law must be applied in such construction. If the place of the making of the contract is known and the contract is being construed by the courts of another state, in the absence of averment and proof of what the law of the place of the contract is it will be presumed that the common law is in force there. Forsyth v. Barnes, 228 Ill. 326; Scholten v. Barber, 217 Ill. 148. There is nothing in this record on which a finding could be predicated as to where this contract of insurance was in fact entered into. The application appears to have been signed in Pennsylvania. The policy appears to have been signed by the officers of the company in the state of New York. The application contains the provision “that it will constitute no contract of insurance until a policy shall first have been issued and delivered by the said company and the first premium thereon actually paid. The policy provides that while the first premium is made payable in New York the same may be made, at the pleasure of the company, to authorized persons at other places, and there is no proof in the record where the policy was in fact delivered or the first premium in fact paid; neither are the laws of any state proven. This contract must, therefore, be construed according to the rules of the common law.

At the common law, contracts must be so construed as to carry into effect the real intent and understanding of the parties. If that intent and understanding is sufficiently apparent, effect must be given to it, even if in so doing violence is done to the language employed, for greater regard_is to be given to the clear intent of the parties than to any particular words used. Dowiat v. People, 193 Ill. 264. The intention of the parties must be ascertained from the words employed, the connection in which they are used and the subject-matter of the contract. Hayes v. O’Brien, 149 Ill. 403.

In construing a contract the court will, if necessary, put itself in the place of the parties and read the contract in the light of the objects they had in view and the circumstances surrounding them at the time it was made, so as to be able to understand the language employed in the sense intended by them. Street v. Chicago W. & S. Co., 157 Ill. 605; Nash v. Classen, 163 Ill. 409, affirming 55 Ill. App. 356; Burgess v. Badger, 124 Ill. 288.

The scope and end of every matter covered by the contract is to be considered and snch construction will be adopted as will satisfy these, because to satisfy scope, end and purpose of the contract is to satisfy the intent of the parties. Consolidated Coal Co. of St. Louis v. Peers, 166 Ill. 361.

In contracts of life insurance proper, where the insured and the insurance company are the contracting parties, the intent of the insured as to who the beneficiary shall be is the intent of all concerned. Insurance companies leave that matter to the determination of the insured and the beneficiaries are often not yet in esse, are too young to know or understand the transaction, or if old enough to understand are not consulted about it. It is a matter of common knowledge that in a very great majority of cases, life insurance is purchased by the insured because of his laudable desire to leave, when he dies, to those persons who are the natural objects of his love, care and bounty an amount of money larger than he could otherwise do, and to thereby decrease to that extent the chance of his dependent wife, child or other relative becoming a public charge or in want of the necescities of life.

In the case at bar, the insured at the time he made application for the policy in question was the father of one child, then about four months old. He designated his wife as the beneficiary, and in answer to the question in the application, “If for the benefit of the wife of the person proposed for insurance, state precisely whether it shall be paid to her children, to his children or to the children of the two, if she be not living at its maturity,” he replied, “To the children of the two.” On the strength of the directions so given the company issued its policy payable to the wife, “if living and if not, to their children or their guardian for their use.” Nowhere in the application or policy is there any suggestion that under any circumstances any part of the fund should be paid to the heirs, administrators or representatives of any deceased child. In fact, there is no suggestion concerning deceased children. The entire stipulation is in regard to the living. Taking in connection with the language employed the well-known fact that life insurance is purchased for the benefit of the living and not the dead, we feel that it was clearly the intention of the insured to have the insurance money paid to the children who should be alive at the time the policy should mature, and that for that reason, irrespective of all other considerations, the policy should be so construed.

Again, the policy being applied for and issued when the insured had but one child the fact that the term “Children” is used, both in the application and in the policy, indicates that the same was used to designate a class of persons, as distinguished from particular individuals. The class of persons so designated being the children of Gustav and Sadde Loebman. U. S. Trust Co. v. Mutual Ben. Life Ins. Co., 115 N. T. 152. How many persons should constitute that designated class and who they would be, could not be known until the policy matured, for while the number of persons who should constitute that class could not increase after the death of Sadde, it might be decreased. In this case, it was decreased by the death of one who, if she had lived, would, under the designation “their children,” have participated in the distribution of this fund. When by the terms of a will a fund is given to a class of persons, it is held by what we understand to be an unbroken line of authorities that the determination of who belong to the class and who consequently are entitled to participate in the distribution of the fund is postponed until the death of the testator, and the fund goes to the survivor or survivors of the designated class. Lancaster v. Lancaster, 187 Ill. 540; McCartney v. Osburn, 118 Ill. 403; Rudolph v. Rudolph, 207 Ill. 266; Kellett v. Shepard, 139 Ill. 433. We are aware that there is a line of authorities holding that contracts of insurance are not to be construed by the same rules applicable to the construction of wills. There are also a number of cases in various jurisdictions in the United States holding exactly the contrary, as to the parts of life insurance contracts relating to the distribution of the fund. These last mentioned cases are, in our opinion, the best reasoned, and where followed, tend in many cases to prevent a distortion of the. real purpose of life insurance contracts. Some of these eases follow: Duvall v. Goodson, 79 Ky. 224-227; Small v. Jose, 86 Me. 120; Russel v. Russel, 64 Ala. 500; Rawson v. Beach, 13 R. I. 151; Continental Life Ins. Co. v. Webb, 54 Ala. 688.

It cannot be denied that the disposition of life insurance funds arising from a straight life insurance policy is in many respects strikingly akin to a testamentary disposition of property. The will of the insured, like the will of the testator, when ascertainable and not in conflict with positive law, usually governs. The distribution does not take place until the death of the insured in the one case and the death of the testator in the other. The fund usually goes to persons bound to the insured in the one case and the testator in the other by ties of consanguinity or affinity. The disposition of the fund is governed by the arbitrary wish of the party directing it. In case no lawful disposition of it is made, it usually goes to the estate of the insured in the one. case and of the testator in the other as intestate property. It is usually a gratuity, although it may be made in fulfillment of a recognized legal liability or obligation. Again, courts are usually called upon to construe life insurance contracts under the same circumstances under which they are called upon to construe wills, that is, after the death of the person whose intent is to be ascertained. Comparisons might be multiplied, but we think enough has been said to indicate that to the average mind what would be potent in determining what was the intent in the one case would be likewise potent in the other. No sufficient reason can Tbe urged, it seems to us, why the real intention of the insured, the real thing on which his mind was centered when he made his insurance contract, should not be ascertained by the same rules by which the real intention of a testator, the real •thing on which his mind was centered when he made his will, is determined. If this contract be so construed, and we think it must be, it must he held, and we do hold, that when “the children” of the insured and his wife, Sadde, were designated in this insurance contract as beneficiaries, it was intended to describe a class, and that it was done in view of the law, and with the understanding and intention, that those who fulfilled the description of child or children of Gustav and Sadde Loehman who were in esse when the policy matured; or, in other words, who survived the insured, should receive the fund. U. S. Trust Co. v. Mutual Ben. Life Ins. Co., 115 N. Y. 152. Appellee, Fred G. Loehman, being the only child of the insured and Sadde Loehman who survived the insured and who, therefore, was the only person who fulfilled the description of the class of beneficiaries named, was and is entitled to the whole fund. A construction of tin's contract that would result in a holding by this court that the insured intended to and did contract with the insurance company that he would from year to year during his life time pay of the money that would otherwise belong to his estate and descend at his death to his heirs, a premium on a life insurance policy to be eventually paid in part to the surviving husband of a daughter that was not born until nearly a year after the contract was made, and who died more than ten years before the policy matured and to the exclusion of his own flesh and blood, would be so obnoxious to the dictates of reason and natural justice and out of joint with the operation of the average human mind as not to he tolerated. There is nothing in the language employed in the contract requiring such an interpretation, neither is there any precedent for such a construction in the decisions of the courts of this state.

We are cited to the case of Glanz v. Gloeckler, 104 Ill. 573, as announcing the doctrine that the term children, used in this insurance contract in designating beneficiaries, should be construed to give to each child of Grustav and 'Sadde Loebman, who was alive at any time after the death of Sadde, a vested interest in the fund that would descend to the heir of such child should he or she die before the policy matured. The facts in that case were very different from the facts in the case at bar. There the policy was made payable to a definite person, by name, and in case of her decease, then to her “executors, administrators and assigns.” On that state of facts the court very properly held that, as the named beneficiary was dead when the policy matured, the fund went to her legal representatives, as’expressly directed by the terms of the policy. The case of Mutual Life Ins. Co. v. Allen, 212 Ill. 134, cited by appellant to show that Bertha Loebman Finn had a vested right to the fund here in dispute, is also entirely different on the facts from the case at bar. In that case, the wife of the insured was named as beneficiary and the policy itself was delivered to her. The insured died leaving her surviving. Sometime after the issuance of the policy and the death of the insured, the beneficiary had delivered the policy to the agent of the company, as security, for a loan of $10, which amount, with accrued interest, she claimed to have tendered to the agent, who refused to accept it and retained the policy. The suit was begun by the beneficiary against the insurance company on the policy, so hypothecated to the agent of the company and stüí in his possession. The court there holds, in substance, that one named as a beneficiary in a policy of life insurance and to whom the policy has been delivered has a vested interest in the fund. In the case of Johnson v. Van Epps, 110 Ill. 551, the policy was payable to one Judith Johnson, the wife, or to the legal representatives of the insured. The wife died before the death of the insured and the original policy was surrendered and a new one issued to one Elizabeth Van Epps, in consideration of her promise to pay the future assessments on the policy and furnish him a home. After the death of the insured a controversey arose between the legal representatives of the insured and Elizabeth Van Epps. The legal representatives claimed they had vested rights under the first policy. This point was not decided, but a judgment in favor of Elizabeth Van Epps and against the legal representatives of the insured who were named in the first policy as beneficiaries in case of death of Judith Johnson, was sustained on other grounds. The case of Central Bank of Washington v. Hume, 128 U. S. 195, also cited by appellants, arose after the rights of a surviving named beneficiary had in fact matured by the death of the insured, and the construction adopted was based on certain statutory provisions not involved in the case at bar.

All of these cases are so different on the facts as to be of no value as authorities in the case at bar.

Counsel for appellant has called attention to Walsh v. Mutual Life Ins. Co., 133 N. Y. 408, and Fidelity Trust Co. v. Marshall, 178 N. Y. 468 (in which last case three out of seven judges of the court dissent), in which it is held that under facts similar to the case at bar all children surviving the mother have a vested interest in the fund which attaches immediately on her death, and which in case they die even before the policy is matured will descend to their personal representatives. We do not consider that these cases announce the common law. They are predicated on the case of U. S. Trust Co. v. Mutual Ben. Life Ins. Co., 115 N. Y. 152. The provisions in the policy of insurance there involved were, as to beneficiaries, almost identical with the provisions here under consideration. There, as here, the wife was made the beneficiary in a policy on the life of the husband, and in case of her death before the death of her husband, the insured, then the amount should, after his death, he payable to their children, or to their guardian, if under age. In that case, the wife died, before her husband, leaving three children. Then two of those children died, one leaving children and the other leaving a husband but no children. Then the insured died, leaving one child and three grand children his only issue. The insurance company then paid one-third of the fund to the surviving child of the insured, one-third to the administrator of the child that had died leaving no children, and one-third to the guardians of the three grand children. The controversy arose over the contention made by the guardians of two of the grandchildren that the administrator of the child who had died leaving nó children was not entitled to the one-third that had been paid to him. It was there contended that the moment the policy issued the interest of the wife and her children vested under the provisions of the statute of New York. The Court of Appeals thereupon proceeded to construe the provisions of that policy and the rights of the parties in the light of the statutes of that state, and in so doing gave expression to the views afterwards adopted in Walsh v. Mutual Life Ins. Co. and in Fidelity Trust Co. v. Marshall, supra. The court then proceeded to announce what we understand to be its view of what the common-law rule is in the following language: “If, however, we assume that we are wrong in this construction of the policy, then upon the death of Mrs. Finn (the mother) the policy was payable to her children as a class and those of the class would take who were in being at the time when the policy became payable, and in no event could grand children be included in the class.” So far as these three New York eases relate to rights existing under the New York statutes, they are not helpful in determining what the common law is, and so far as the common law rule is announced in the Trust Company case, supra, it is in accord with our view as above expressed.

There are no decided cases in the court of last resort in this state that we have been cited to or can find that are closely in point. Perhaps the case nearest in point in this state is Coyne, Stone & Co. v. Jones, 51 Ill. App. 17, in which the court says, on page 28 of the opinion:

“So far as the naming of a beneficiary is concerned, such a certificate partakes of the nature of a will, and without consideration, like a will, is a mere declaration of a purpose to bestow a bounty which, until death, vests no rights of property in the legatee or beneficiary. ’ ’

In other jurisdictions various courts have held, in effect, that the word children, as used in the policy here under consideration, means children living at the time the policy matures. The following are some of those cases: Ryan v. Rothweiler, 50 Ohio St. 595; Continental Life Ins. Co. v. Webb, 54 Ala. 688; Brown’s Appeal, 125 Pa. St. 303; Entwistle v. Travelers’ Ins. Co., 202 Pa. St. 141. There is no doubt that the beneficiaries named in the policy of insurance have vested rights in the fund. We do not understand that any one in this case denies that proposition. The converse is also true. Only those named as beneficiaries have such vested rights. In the view we take of the case, appellant’s intestate, not having survived her father, the insured, was not a beneficiary and never had a vested interest in the fund, while appellee, who was the only child of the insured and his wife, Sadde, who was alive at the death of the insured, was the sole representative of the class described in the policy as “children,” and was entitled to the whole, fund.

The question whether the evidence offered by appellee before the master in chancery, and excluded by Mm, relative to certain statements the insured made years after the policy was issued and after the death of appellant’s intestate, tending to show his understanding to be that appellee was the sole beneficiary under the policy in question, was admissible, is, in the view we have taken of this case, a purely academic question which has not entered into the determination of this case, and wMch we do not feel called upon to decide. Being fully satisfied that the construction of the contract and the determination of the rights of the parties by the Circuit Court was in all respects free from error, the decree of that court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Crates

license: Public Domain

text:
    Moeller & Kolb, co-partners, Appellants, v. Van Loo Cigar Company, Appellee.
    Gen. No. 17,400.
    1. Attachment—fraudulent disposition of property. The facts that a debtor executed and delivered a bill of sale of all its property to its largest creditor who agreed to cancel all the obligations it held against the debtor and pay all its outstanding obligations, and that the creditor took possession employing the president of the debtor to manage the business, will not support attachment.
    2. Attachment—sale without fraud not ground. The mere sale or transfer by a debtor of part or all of his property does not warrant the issuance of a writ of attachment, though the sale or transfer results in a preference of some of his creditors and in hindering or delaying others in the collection of their claims where there is no element of intentional fraud.
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed May 21, 1913.
    John Frederick Haas, for appellants.
    Marvin E. Barnhart, for appellee.
   Mr. Justice Crates

delivered the opinion of the court.

Appellants, Moeller & Kolb, co-partners, who were creditors of appellee, the Van Loo Cigar Company, a corporation, filed in the Municipal Court an affidavit for an attachment in which it is stated as the only ground for attachment that appellee “is about to remove its property from this state to the injury of the said Moeller & Kolb, co-partners; that it has within two years last past, fraudulently conveyed or assigned its effects, or a part thereof, so as to hinder and delay its creditors; that it has within two years last past fraudulently concealed or disposed of its property so as to hinder and delay its creditors; that it is about fraudulently to conceal, assign or otherwise dispose of its property or effects, so as to hinder and delay its creditors.”

After a hearing on the facts before the court without a jury, the writ of attachment was quashed on the motion of appellee for the reason, as stated by counsel, for appellants and acquiesced in by counsel for appellee, that “the evidence adduced was insufficient to maintain the attachment.” The correctness of this ruling is the only question presented for review. Concretely stated the question this court is asked to determine is whether the evidence presented on the trial was sufficient to warrant the judge trying the case in finding that appellee, when the writ of attachment was sued out, had within two years then last past fraudulently conveyed, assigned, concealed or disposed of its effects or property or a part thereof, so as to hinder and delay its creditor, or was then about to fraudulently conceal, assign or otherwise dispose of its property or effects, so as to hinder and delay its creditors. As we understand counsel’s argument, it is conceded that unless it was sufficient to warrant such finding the judgment should be affirmed.

It is not claimed by appellant that the first cause set up in the affidavit for attachment, viz., that appellee was about to remove its property from the state, is supported by the proof.

The material facts fairly established by the evidence and on which the court acted in quashing the writ of attachment are practically undisputed and are as follows :

Appellee was a corporation having a paid up capital of about $1,250. It was indebted to the Capital Leaf Tobacco Company in about $17,000, and to others in about $2,500 or $2,600, including about $1,200 to appellants. Its creditors were pressing it for the payment of its various obligations and it was not able to liquidate them. It, thereupon, executed and delivered to the Capital Leaf Tobacco Company, its largest creditor, a bill of sale of all its property and assets without reservation, and the Capital Leaf Company agreed to cancel all the obligations it held against the Van Loo Company and to pay all its outstanding obligations. This transaction took place without the knowledge of any of the other creditors of the Van Loo Company. There was no writing then executed evidencing the promise of the Capital Leaf Company to pay the debts of the other creditors, but some two months thereafter one was executed and dated back to the date of the execution of the bill of sale. There was nothing in the bill of sale to indicate any"purpose on the part of either of the parties to it that the property conveyed was to remain in the possession of the Van Loo Company, but when the lawyer who had prepared the bill of sale handed it to A. Zurackov, the president of the Capital Leaf Co., he said to him, “You can go and take possession,” to which Morris Newlander, the president of the Van Loo Company, who was then doing the business of that company, replied, “No, sir, I don’t give possession before you fix up with the creditors,” to which the lawyer replied, “It is all right; we will fix it up all right.” It was also a part of the transaction that Morris Newlander should thereafter work on a salary for the Capital Leaf Company in the manufacture of cigars. The bill of sale was executed on Saturday, July 23rd. On the Monday following Newlander put his men to work manufacturing cigars from tobacco furnished by the Capital Leaf Company, and on'Saturday the men were paid by that company. During the week 10,000 cigars were delivered to that company and 15,000 more were being prepared for delivery, when Mr. Moeller of Moeller & Kolb came in and demanded a settlement of his claim, was sent to the Capital Leaf Company for it, but did not get it. He then went back to Newlander and was told by him of the transaction and to protect himself. Upon being informed that the Capital Leaf Co. had refused to pay the claim of Moeller & Kolb, the Van Loo Company, at least temporarily, repudiated the bill of sale and refused to deliver to or allow the Capital Leaf Co. to take any more goods, but held the same until the same were taken under the attachment writ in question. Certain proceedings then followed, both in the state and federal courts, for which, so far as we can discover, appellee was in no way responsible, and that shed no light on the question of the bona fides of the transaction culminating in the bill of sale above referred to. The trial court' on the facts before it found against appellants on the charge that the transaction related constituted a fraudulent sale entered into to hinder and delay the creditors of the Van Loo Company, and entered the order appealed from quashing the writ of attachment. We think the court was justified by the facts in the finding made. No complaint is made as to the form of the order entered. The transaction seems to be an attempt on the part of appellee to make a bona fide- transfer of all its property to one creditor for the purpose of securing the payment in full of all its obligations, except the one held by the Capital Leaf Company, to whom the conveyance was made, and a compromise and satisfaction of its obligation to that company. If any one of the creditors was likely to lose or be hindered or delayed in the collection of their claims, it was the Capital Leaf Company, and that company is not complaining and could not be heard to complain, because what it did was done with eyes open. If it made a hard bargain for itself, it was its own fault.

The mere sale or transfer by a debtor of part or all of his property will not warrant the issuance of a writ of attachment, even if that sale or transfer results in a preference of some of its creditors and in hindering or delaying some of the others in the collection of their claims. There must be in the transaction the element of intentional fraud. If that element is lacking, or in other words, if the transaction is in good faith, it will furnish no ground for attachment. Murry Nelson & Co. v. Leiter, 190 Ill. 414; Reichwald v. Commercial Hotel Co., 106 Ill. 439-451; Henry Dibblee Co. v. Watson, Little & Co., 60 Ill. App. 432-437. See also Shove v. Farwell, 9 Ill. App. 256; Wadsworth v. Laurie, 63 Ill. App. 507; Weave Commission Co. v. Druley, 156 Ill. 25.

The judgment of the Municipal Court is, therefore, affirmed.

Judgment affirmed.


author: Mr. Justice Graves

text:
    John Stankowski, Appellee, v. International Harvester Company, Appellant.
    Gen. No. 17,413.
    1. Masteb and servant—duty as to tools. Where a company furnishes a chisel and sharpens and tempers it for use by one of its workmen, it is the duty of such company to use reasonable care to see that it is so tempered as to be reasonably fit and safe for the purposes for which it is to be used.
    2. Master and servant—right of servant to assume that master performed duty. Where a company furnishes a chisel to one of its workmen which was tempered and sharpened by it, such workman has a right to assume that the company performed its duty to use reasonable care to see that the chisel was so tempered as to be fit for the purposes for which it is to be used.
    3. Master and servant—when risk not assumed. Where the master furnishes a chisel to a servant and sharpens and tempers it, the servant does not assume the risk of injury incident to latent defects therein not known by him.
    4. Negligence—where mere fact that machine breaks not evidence of. The mere fact that a machine or tool breaks is no evidence of negligence on the part of the person furnishing it except where the rule res ipsa loquitur applies.
    5. Master and servant—res ipsa loquitur. The rule res ipsa loquitur does not apply where action is brought by a servant injured by the breaking of a chisel with which he was working which was furnished and sharpened and tempered by the master.
    Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of fact.
    Opinion filed May 21, 1913.
    Rehearing denied June 9, 1913.
    D. A. Orebaugh, for appellant; Edgar A. Bancroft, of counsel.
    Bichakd J. Finn, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

Appellee was at the time of the occurrence here involved, and for years before that time had been, an employe of appellant in its shops. In performing the duties of his employment he was accustomed to use a cold chisel. It is a matter of common knowledge that a cold chisel is a piece of steel bar sharpened and tempered at one end and used to cut iron by placing the sharpened end against the iron to be cut and striking the other end with a hammer with greater or less force, according to the size of the chisel, and the cut to be made. On the day in question appellee, while doing his customary work, was using in the regular way a cold chisel that had not been used since it had been sharpened and tempered. With the first stroke of the hammer on the cold chisel a piece of metal flew into the eye of appellee and caused the injury complained of.

The negligence charged against appellant in the first count of the declaration was that it had furnished to appellee a dangerous and defective chisel, made of poor material and not properly tempered and in which there was a flaw, of which appellant had or by reasonable care should have had notice. The second count is, in substance, the same as the first, except that it charges that appellee was ordered by the foreman of appellant to work with the defective and dangerous chisel. The third count is the same as the first, except that it is not therein alleged that appellant had or could have had notice of the defects- in the chisel. The fourth count is the same as the third, except that it charges in general terms that appellant furnished appellee with a dangerous and defective chisel without describing in what manner it was defective. Bach count charges that by reason of the defective condition of the chisel a fragment of the chisel broke off and penetrated appellee’s eye, resulting in the injury complained of. Appellant did not test the sufficiency of the declaration by demurrer, but filed to it and to each count thereof the general issue. The jury found the appellant guilty and assessed the appellee’s damages at $2,000, and judgment was rendered thereon.

It is first contended by appellant that, even if the cold chisel was defective, as claimed by appellee, it was a simple tool in the use of which under familiar rules appellee assumed the risk, and that, therefore, admitting all the evidence of appellee to be true, no cause of action is shown thereby, and that the court erred in denying appellant’s motions, made at the close of plaintiff’s case and renewed at the close of all the evidence, to direct a verdict for defendant. While the evidence on the subject is far from satisfactory, it is practically admitted by appellant that the chisel in question was not only furnished, but was sharpened and tempered by appellant. It is true that, where simple tools are procured by a master from some one else and furnished to his'servant to use, the servant assumes the risks of all defects therein. The theory being that if the defect is latent neither the master nor the servant knows of it, and if it is patent at the start, or develops by use, the servant has at least an equal opportunity with the master of observing’ the defect. But when the master manufactures a tool, or remodels it, and in so doing leaves it in a defective and dangerous condition a different rule applies, for the master then knows what has been done and how it was done, and the servant does not. The equality of knowledge and means of knowledge is then lacking. Herricks v. Chicago & E. I. R. Co., 257 Ill. 264; Pfeifer v. Eastern Metal. Works, 358 Ill. 427. It was the duty of the servant of appellant who did the work of sharpening and tempering the cold chisel in question to do that work in a proper and workmanlike manner and not to turn it out as finished until it was so tempered as to be reasonably fit and safe for the purposes for which it was to be used. It was the duty of appellant to use reasonable care to see to it that it was so done. Appellee had a right to assume that his master would do its duty in that regard and in so doing did not assume the risk incident to a latent defect in the chisel not known to him.

The employer is not, however, an insurer of the absolute safety and ^lawlessness of a tool furnished his servant to work with. He has performed his duty in that regard when he exercises reasonable care to see that such tool is reasonably safe and sound. It is for one claiming a right to recover for a failure on the part of the master to perform that duty, not only to aver, but to prove, such failure and to prove it by a preponderance of the evidence. Assuming that the declaration in this case is sufficient after a verdict to warrant a recovery for neglience of the master in this repect, and we think it is, there is absolutely no evidence in the record to support it. There is evidence tending to show that the chisel broke, but none to show what caused it to do so. While the testimony shows that it is a very simple matter to ascertain whether it was tempered too hard, no tests are shown to have been made of it, before or after the injury, to determine its condition in that respect. Neither is there any evidence tending to show that the cause of the breaking was due to the failure of appellant to use reasonable care to have it reasonably safe, nor yet that it was not reasonably safe. Except in cases where the rule res ipsa loquitur applies, the mere fact that a machine or tool breaks is no evidence of negligence on the part of the person furnishing the tool, and that rule never applies to a suit by a servant against the master, where the injury results from' some defect in an instrument, machine or appliance that is under the control of and is being used or operated by the injured servant at the time of the injury, or where the question of assumed risk is in any way involved. Orenstein v. Boston Store, 177 Ill. App. 256, and cases there cited. To the facts in the case at bar, the rule res ipsa loquitur has no application. It follows that the verdict and judgment in this case are not supported by the evidence.

For the reasons given, the judgment of the Superior Court is reversed with a finding of fact.

Julgment reversed with finding of fact.

Finding of Fact: We find as an ultimate fact that appellant was not guilty of the negligence charged in the declaration.


author: Mr. Presiding Justice Smith

text:
    Joseph Simon, Administrator, Appellee v. The Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 17,383.

      Railroads—negligence in crossing tracks. Evidence in an action for the death of one struck by a suburban train, held to show that deceased was deliberately attempting to cross the tracks in front of the train when it was almost upon him to reach a platform and was guilty of contributory negligence.
    Appeal from the Superior Court of Cook county; the Hon. Paul McWilliams, Judge, presiding. Heard in this Court at the March term, 1911.
    Reversed with finding of fact.
    Opinion filed May 26, 1913.
    Rehearing denied June 9, 1913.
    Hopkins, Peffers & Hopkins, for appellant.
    David E. Levy and George E. Gorman, for appellee; Douglas C. Gregg, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is an appeal by the defendant from a judgment against it for $9,000 for causing the death of Abraham Levin,

Among the grounds of negligence averred in the various counts of the declaration were careless and negligent manner of running and operating its train, running at a high and dangerous rate of speed, failure to ring bell or give warning of the approach of the train and failure to provide and have burning a headlight on the said train.

The plaintiff called two witnesses. Mrs. Levin, the widow, testified pertaining to the next of kin and the earnings of the decedent. The other witness, Hyman Markovich, lived on 13th avenue, a north and south avenue, about a block north of Madison street, an east and west street, in Maywood. He testified that the decedent came to his house, with a companion named Jacobson, in the afternoon of December 12, 1907; that they left his house about 7:15 that evening to go to the defendant’s 13th avenue station to take a 7:26 or 7:27 local east bound train into Chicago; that an express train was due to pass 13th avenue at 7:15; that it was a long block from Madison street south on 13th avenue to the defendant’s tracks and just north of the defendant’s tracks were the Chicago and Great Western Bailway tracks; that there was a small platform on the north side of the defendant’s north tracks on the west side of 13th avenue for the use of passengers for west-bound trains and the platform for east-bound trains was south of the defendant’s south track and east of the platform for west-bound trains, and there were no houses on either side of 13th avenue between Madison street and the defendant’s tracks, and it was an open prairie and there was a clear view for a mile or two to the west along defendant’s tracks; that on the south side of Madison street was a fence across 13th avenue, in which there was a gate for people to pass through and a three plank sidewalk on 13th avenue south of Madison street to the railway tracks, that on the evening in question he went with the decedent and Jacobson south on 13th avenue across Madison street and when about 150 or 160 feet south of Madison street and about 50 or 60 feet north of the Great Western tracks, he stopped to urinate and the decedent and Jacobson said good night to him and walked on south; that while he stood there facing southeast he heard a low whistle to the west and looked west, but saw no train coming, nor a headlight, and after that he did not look to the west again and heard'no other whistle or other noise of the train approaching, and neither did he see it until about a minute or a minute and a half after he heard the low whistle, when he saw the lights in the side windows of the cars as the train went very fast across 13th avenue; that the night was not very dark and there were bright lights at the Great Western station, and he saw decedent and Jacobson when about 10 or 15 feet south of Mm and again when they were walking across the Great Western tracks and did not see him again until, thinking the train had not stopped for them, he went at once to the tracks and found the decedent had been killed and Jacobson also had been struck by the train causing injuries from which he subsequently died. We think the foregoing an accurate statement of the material testimony given by Markovitch, and with the admission of the defendant that at the time in question when the train struck the decedent it was going forty miles an hour, the case was submitted by the plaintiff.

Eugene Wicks, a witness for the defendant, testified that he was a contractor and at the time of the accident he was south of the defendant’s tracks with his wife and baby walking north on 13th avenue, going to the station to take a train for Chicago; that he first saw the headlight of the defendant’s train when it was about 3y2 miles to the west and it disappeared for about a half a minute, when he again saw it, and from then on until the train passed the headlight was com tinuously in sight; that there was a whistle from the train when it was about a mile and a half away and after that three or four other whistles, the last time being at 13th avenue; that when he first saw the decedent and Jacobson he was about 125 or 130 feet south of the defendant’s tracks and “they were coming on a sort of a trot” about 25 to 35 feet north of the defendant’s tracks and south of the Great Western tracks ; that the men seemed to hesitate and then came running on the defendant’s track and there was a crash; that he then stopped with his wife and baby and did not go up to the crossing until later to take the train home. George Engleman, a witness called by the defendant, testified that he was walking north on 13th avenue, about four blocks south of the defendant’s tracks, when he first saw the train in question coming up over the hill at the county line; that he continued walking north and he first saw one of the men coming south about thirty yards north of defendant’s tracks, and at that time the train was between 13th and 17th avenues; that the last time the whistle blew before the accident was just before the train reached 17th avenue, and the headlight was burning; that he could not say how they were coming and did not know that there were two men until after the accident; that he was about thirty yards south of the tracks when he saw one man on the track when the train was twenty to forty feet away; that he saw something was going to happen and took hold of a little tree, “and I stood right there and it struck those men and he went right up in the air and he dropped right on the platform. Fred Meyer, the motorman of the train, testified that he was due to pass 13th avenue station at 7:45 and was running on schedule time, and not late; that the headlight was burning and as he came east toward the 13th avenue station he whistled at various times; that when he first saw the two men they were about eight feet north of the east-bound track and running fast to the south, one trailing the other about three feet apart, and at that time the witness was about a car length from the crossing and “immediately threw my air into the emergency;” that at the time the power was off and the air partly on to take the curve about 200 feet east of the 13th avenue crossing and at the time was running about forty miles an hour.

These witnesses were the only witnesses testifying in relation to the accident. The witness Markovich for the plaintiff, accepting his testimony as true, did not in fact see the accident or anything in relation thereto after he saw the decedent and Jacobson on the Great Western tracks, until it was all over; neither was he in a position to see it or the approach of the train, although it seems somewhat strange that under all the circumstances he did not hear any sound of the approaching train except the one low whistle. That being the case made by the plaintiff, it is manifest that the evidence introduced by the defendant proves that the decedent deliberately ran upon the track in front of the said train. It is undoubtedly true that the decedent expected to be able to cross safely and intended to reach the platform on the other side of the track, and to do this he evidently took the chance of running ahead of the train when it was so close as to be almost upon him. It seems to us that the decedent was clearly guilty of contributory negligence and it must be so held regardless of the misery arising from an occurrence so unfortunate and distressing.

From the view we take of the case, the questions of the defendant’s negligence and the other errors assigned and argued need not be discussed.

The judgment is reversed with a finding of fact.

Reversed with finding of fact.


text:
    Johanna Pold, Plaintiff in Error, v. North American Union, Defendant in Error.
    Gen. No. 17,395.
    1. Fbatebnae benefit societies—validity of amendments to articles of association. In an action on a certificate issued by defendant fraternal benefit society, plaintiff the beneficiary cannot object to amendments to the articles of association of the society on the ground that they were not properly referred to the subordinate councils where the evidence shows they were submitted to the subordinate councils and passed by a proper majority.
    2. Fbatebnae benefit societies—amendment to articles of association. A benefit society organized under the Fraternal Beneficiary Society Act of 1893 has power, under the amendatory Act of 1895, to enact an amendment to its articles of association providing that, in case a member commits suicide, the beneficiary is only entitled to a sum equal to the total amount actually paid by such member.
    3. Fbatebnae benefit societies—where member in good standing commits suicide. In an action on a benefit certificate, where the insured committed suicide, an amendment to the articles of association providing that the beneficiary may only recover what was paid in by the member is binding though passed after insured became a member and the fact that insured was a member in good standing is immaterial

      Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Rehearing denied June 9, 1913.
    George F. Barrett and Edmund S. Cummings, for plaintiff in error.
    R. E. Hamilton, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff brought suit to recover as beneficiary on a certificate of membership issued to her husband, Robert Pold, in the sum of $4,000. The charter of the defendant was dated June 8, 1895, and it was organized as a fraternal beneficiary society under the Fraternal Beneficiary Society Act of Illinois of 1893. One of the objects of its organization, as stated in the articles of association, pursuant to said statute, was:

“3rd. To establish mortuary benefit fund from which shall be paid upon the death of a beneficiary member in good standing to the family, heirs, blood relations or affianced wife, or to persons dependent upon him, a mortuary benefit not to exceed the amount specified in the benefit certificate of the member.”

Under the plan set forth in said articles to carry out the objects of its organization was the following:

“5th. Upon the death of a member in good standing there shall be paid to his beneficiary or beneficiaries the sum specified in his benefit certificate, and Subordinate Councils may provide such other assistance and relief for their members as shall be in consonance with the declared objects of the order and provided by the laws of the association.”

Subsequent to the defendant’s organization an amendatory Act of 1895 was passed, wherein it changed the language of the Act of 1893 in section 1 in part as follows: “and may make provisions for the payment of benefits in case of disability and death, or of either, resulting from either disease, accident or old age of its members. * * * 'All such societies shall be governed by this Act.”

The insured became a member of the defendant society in February, 1898. The certificate recited that it was “upon condition that the said member complies in future with the laws, rules and regulations now governing the said North American Union, and the said Mortuary Fund and Reserve Fund thereof, or that may hereafter be enacted to govern the same, all of which said laws, rules and regulations are also made a part of this contract; and upon said member assenting to and complying with all the conditions herein provided, the North American Union hereby promises and binds itself to pay out of its Mortuary Fund to Johanna Fold, his wife, the sum of Four Thousand Dollars in accordance with and under the provisions of the laws governing said fund upon satisfactory proofs of the death of said member, and upon the surrender of this certificate provided that said member is in good standing in this association at the time of his death.” And thereon was the insured’s acceptance thereof as follows: “I accept this certificate and agreement on the conditions herein above named and assent thereto and agree to comply therewith. Robert Fold.”

In 1903 the defendant society adopted or attempted to adopt certain amendments to its articles of association and its constitution. Among those it was claimed were adopted amending its articles of association, the article numbered 3 was purported to be amended to read as follows:

“Third. To establish and maintain a Mortuary Benefit Fund, from which shall be p.aid benefits in cases of disability or death, or either, resulting from disease, accident or old age of its members. Such "payments to be subject in all cases to compliance by the member with the contract rules and laws of this order.”

And under the plan of organization the article numbered 5 was purported to be amended to read as follows :

“Fifth. Upon the compliance by the member with the contract rules and laws of the order, benefits shall be paid to him or his beneficiaries, in the amount, and according to the provisions specified in his benefit certificate or policy of insurance, and the subordinate bodies of the order may provide such other assistance and relief to and for their members as shall be in consonance with the declared objects of the order, and provided for by the laws of the association.”

On the defendant’s organization it adopted a constitution, by-laws and also certain laws to govern it and carry out the purposes of its organization under its charter or articles of association. In 1903 an amendment of one of its laws (Law 3) was adopted reading as follows:

“Sec. 6. If a member shall die, by his own hand or act, either sane or insane, such death shall forfeit any and all rights and claims to the amount agreed to be paid on his death, and specified in the benefit certificate of such member and the beneficiary shall receive and be paid in lieu thereof, a sum equal to the total amount actually paid by such member to the Mortuary and Reserve Fund of the Order, unless it is otherwise provided in and by the benefit certificate of such member, issued prior to the taking effect of this section.”

Section 4, Law 5, was as follows:

“In the event of the death of a member in good standing his beneficiary shall be entitled to receive tlie. sum specified in his benefit certificate, less the amount paid to such member on account of Total or Permanent Disability, if any, and also provided, that in case of a member over seventy years of age at the date of his decease, who has drawn advance payments, as provided in Section 5 of Article VIII of the Constitution, the beneficiary shall be entitled to receive and be paid only the balance of said Mortuary benefit after deducting therefrom the sum total of such advance payments so made.”

The insured committed suicide in 1908. At the time of his death all dues and assessments were paid and he was a member of the defendant society in good standing. The cause was submitted to the court, without a jury, and under section 6, law 3, the court found the issues for the plaintiff and assessed her damages at $336.72, the amount paid to the Mortuary and Reserve Fund, and entered judgment therefor. The plaintiff, claiming judgment should have been given her for $4,000, the amount named in the certificate, sued out this writ of error.

It is urged that the said amendments to the articles of association are invalid and not binding upon- the plaintiff for two reasons. First, because the resolution referring the same to the subordinate councils to vote thereon provided for a reference to the said councils only of certain proposed amendments to the constitution. We think this point untenable for the reason that the said amendments to the articles of association were in fact submitted to the subordinate councils and out of 103 entitled to vote thereon, 92 voted, of which 90 voted for the first and 89 voted for the second of the said amendments. It is contended, secondly, that the said amendments are not valid because the defendant society had no rule providing for amendments to the articles of association, as provided by the statute, sec. 7%, par. 264a, page 1332, Hurd’s Rev. Stat. 1909 (the Fraternal Beneficiary Society Act), wherein it recites that such societies “may change its articles of association in the manner prescribed by its own rules.”

In the absence of a rule providing therefor, it would seem, under the reasoning in Bastian v. Modern Woodmen, 166 Ill. 595, and Park v. Modern Woodmen, 181 Ill. 214, in relation to the said section of the statute, that ordinarily this point would be held good. If this proposition be sustained, it is then argued that under the defendant’s original charter it had no power to pass the said law in relation to suicide, and without that power the said suicide law would not bind the ins tired and a recovery could be had for the amount specified on the face of the certificate. Whether the defendant had the power to pass the said law in relation to suicide under its original charter powers, we do not think it necessary to discuss. The argument on the question as to the legality of the said first amendment, article 3, of the articles of association, is made by both parties without notice of the amendatory Act of 1895. We are of the opinion that under the Act of 1893 and the express and positive language of the said amendatory Act of 1895, the said provision was thereafter, by virtue of the said acts, a part of the organic law of the defendant society without a formal adoption thereof. Massachusetts Foresters v. Callahan, 146 Mass. 391. If this be a correct view, the insured, becoming a member in 1898, was bound thereby. Bacon on Benefit Societies, vol. 1, sec. 48, says: “All persons having transactions with corporate bodies must not only notice the terms of their charters, but also all the general legislation of the State creating them, by which business with Corporations is affected.”

The defendant society derived its corporate powers from the Act of 1893 and the amendatory Act of 1895 and its charter thereunder. We are of the opinion that its suicide law, section 6 of law 3, clearly comes within its charter powers and under the contract, a portion of which is above quoted, is binding on the insured. Peterson v. Gibson, 191 Ill. 365; Benes v. Knights & Ladies of Honor, 231 Ill. 134.

It is also contended that the plaintiff is entitled to recover the amount on the face of the certificate because by the articles of association, both before and after the second amendment heretofore quoted, and under section 4, law 5, it was agreed that the defendant would pay the beneficiary the sum of $4,000 on the death of the insured in good standing, and at the time of the insured’s death he was in good standing. That the insured did not lose his good standing by his act of suicide, the plantiff relies upon Royal Circle v. Achterrath, 204 Ill. 549; Mutual Protective League v. McKee, 122 Ill. App. 376, and Seymour v. Mutual Protective League, 155 Ill. App. 21. While the authorities mentioned sustain the argument that the insured was •in good standing at. the time of his death, we do not think that the conclusion that therefore there can be a recovery is sound. The answer to th<§ argument is given in Royal Circle v. Achterrath, supra, wherein the court say: ‘ ‘ The act of suicide works a forfeiture of the certificate, not because the member is thereby deprived of his good standing in the order at the time of his death, but because, aside from all questions of good standing, it is especially provided that suicide in and of itself shall defeat a recovery.” We also think this a sufficient answer to the argument that the law in relation to payment in case of death while in good standing is inconsistent with the law on suicide, and the one favoring the insured should in such case be adopted.

The judgment is affirmed.

Affirmed.


text:
    Charles L. Rayfield and William C. Rayfield, Appellants, v. Thomas L. Tincher and Caroline Tincher, Appellees.
    Gen. No. 17,415.
    1. Payment—note as payment of debt. The mere giving of a note does not of itself, extinguish a precedent debt, whether it be an account or other demand.
    2. Payment^—question of fact. The question whether a debt is extinguished by a note is one of intention to be determined by the jury.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimobe Cooper, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.

      Thompson & Clark, for appellants.
    Adams, Bobb & Adams, for appellees.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The complainants, here the appellants, filed a bill in which they averred, inter alia, that they sold to the defendant Thomas L. Tincher an automobile plant and in part payment therefor accepted a note, a copy of which is as follows:

“$4,000.00.
Danville, III., June 5, 1905.
On or before two years after date, we or either of us promise to pay William and Charles Bayfield, or order, at the First National Bank, Danville, Dlinois, Four Thousand and no/100 Dollars, for value received, with interest at the rate of six per cent, per annum from date, and in case of commencement of suit thereon, we agree to pay all costs of suit, including a reasonable attorney’s fee.
(Signed) Thos. L. Tincher,
C. B. Tincher;”

that the said C. B. Tincher was Caroline B. Tincher, the mother of Thomas L. Tincher, and resided at Dan-ville, Illinois; that at and about the time of the maturity of the said note the said Thomas L. Tincher stated and represented to the complainants that his mother had lost her money and was financially worthless and unable to pay the said note or any part thereof, and that the same was no good, but that he would renew the said note and- pay such renewal in one year after date thereof, providing the complainants would extend the payment of the said note one year; that the complainants, relying on the said statements and believing that the said Caroline B. Tincher was financially worthless and unable to pay the said note, accepted extension notes therefor signed by tJie said Thomas L. Tincher, payable one year after date thereof, and delivered to the said Thomas L. Tincher said $4,000 note signed by him and his mother; that in fact said Caroline E. Tincher had not lost her money and was not financially worthless, hnt at the time of the making of the said $4,000 note, and also at the time of its maturity, was a woman of large means and worth several hundred thousand dollars; that the said representations of Thomas L. Tincher that she had lost her money and was financially worthless were false and fraudulent and for the purpose of obtaining possession of the said $4,000 note, and that the two notes for $2,000 each given in renewal thereof were not paid and there was no consideration therefor, and that Caroline B. Tincher was liable on the said $4,000 note, etc. The prayer was that the said $4,000 note be produced in court and the cancellation and indorsement thereon “paid,” be set aside and the said Thomas L. Tincher and Caroline E. Tincher be decreed to pay said note with the interest thereon, etc.

The court overruled a demurrer to the bill and the defendants, here the appellees, answered. The answer, inter alia, admits the execution of the said $4,000 note and denies the making of the alleged representations and that the two notes of $2,000 each were given in renewal of the said $4,000 note and that there was no consideration therefor, and avers that the said $2,000 notes were given in payment of the said $4,000 note and it was so agreed between the complainants and the defendant Thomas L. Tincher (and said Caroline E. Tincher had no knowledge thereof) and pursuant to the said agreement said $4,000 was paid and surrendered to said Thomas L. Tincher. A replication was filed and the evidence heard by the Chancellor, who found that the allegations in the bill were not sustained and dismissed the bill for want of equity.

The case presents two material issues of fact. First, as to the fraudulent representations alleged to have been made, and that the complainants relied thereon; and, second, as to whether the said $4,000 note was in fact paid by the giving of the two $2,000 notes. Both of these issues are contested and the subjects of much conflicting evidence, and in determination thereof we have made a careful examination of a voluminous record as well as the abstract. Much may be said in arguments on both sides of these questions, but we can see no benefit to be derived by an exhaustive analysis of the evidence and to comment thereon without so doing would be of little avail. The questions are by no means free from doubt. But the Chancellor having seen and heard the witnesses, we have concluded that the evidence does not warrant this court in holding contrary to the finding of the Chancellor that the allegations in the bill as to the said fraudulent representations, particularly as to the complainants relying thereon-, even if they were made as alleged, were not sustained by the evidence. It also seems to us that we are not justified in holding contrary to the finding of the Chancellor; that the evidence proved that the two notes of $2,000 each were given and accepted by complainants in payment of the said $4,000 note, and it was accordingly surrendered as canceled and paid. In Archibald v. Argall, 53 Ill. 307, and there are many authorities to the same effect, the court say:

“It is the established doctrine of this court that the mere giving of a note does not, of itself, extinguish a precedent debt, whether it be an account or other demand. Rayburn v. Day, 27 Ill. 46; White v. Jones, 38 Ill. 159. In such a case, it is a question of intention. It is true, the intention need not be manifested by an express agreement, but may be inferred from the circumstances attending the transaction, and it is a question for the jury. And in a case of conflict in the evidence, this court will rarely disturb the verdict, unless it is clear that the evidence is strongly against the finding. In this case, the evidence is not of that clear and satisfactory character which requires us to say the jury have failed to give it due weight in the conclusion at which they have arrived.”

We think the above apt quotation of the rule as applied to the facts in the case at bar. It is of course very unfortunate for the complainants that Thomas L. Tincher became a bankrupt and unable to pay the said two notes of $2,000 each and also his personal note for $10,000 given complainants at the time of the sale of said shop. However, we are unable to see on this record how they can be relieved of the disastrous consequences of their own bargain.

Counsel for complainants have filed an exhaustive and learned brief arguing that “The surrender of a joint note to one of two joint and several obligors and giving an extension of time to one will not release the other joint and several obligor,” and other propositions of law. But the arguments on these legal propositions are entirely on the assumption that the complainants established the allegations of fact made in their bill. As we take the contrary view as to the facts, the legal propositions advanced require no discussion.

The decree is affirmed.

'Affirmed.


text:
    Albert Goetz, Appellant, v. Wojciech Ochala, Appellee.
    Gen. No. 17,427.
    1. Agency—not irrevocable because exclusive. An exclusive agency to sell certain land is not irrevocable because exclusive.
    2. Agency—when not coupled with an interest. An agency is not coupled with an interest where the agent is given the exclusive right to sell certain property to a railroad company, which is sought by such company in condemnation proceedings, and the principal agrees to pay as commission the price secured above a certain sum.
    Appeal from the Superior Court of Cook County; the Hon. Richard E. Burke, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Peter Sissman, for appellant.
    Leon Hornstein, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellant brought a suit in assumpsit against the appellee to recover a commission of $220. The declaration contained three common counts and a special count declaring on the following writing:

“In consideration of Albert Goetz accepting the agency for the following described real estate, to-wit: The south half (S. %) of lot nine (9), block ten (10), Wight’s Addition, in section five (5), township thirty-nine (39) north, range fourteen (14), east of the third principal meridian, in Cook County, Illinois, and known as No. 10 Lessing street, Chicago, I hereby give him the exclusive right to sell said property from this date until the 1st day of January, 1909, and agree to pay him as commission whatever sum he may get therefor over and above the sum of $9,000, and in case this property is sold by any one else during the period herein named, I agree to pay the said Albert Goetz the regular commission as prescribed by the Chicago Real Estate Board.
Dated at Chicago, November, 1907.
W. Ochala, Owner.”

On the trial the court instructed the jury at the close of the plaintiff’s case to find the issues for the defendant and on the verdict so returned entered judgment of nil capiat and the plaintiff appealed.

At the time of entering into the said writing the C. & N. W. R. R. Co. had begun proceedings to condemn the premises described therein, and the defendant had been served in the said suit. The plaintiff, an attorney, entered his appearance in the said condemnation suit in defendant’s behalf and began negotiations to sell said premises to the said Railroad Company for $10,000, but was unable to secure said price. The defendant in 1908 sold and conveyed the said premises for $8,000 to Mr. Baird, representing the said Railroad Company, and through whom it was conveyed to said Company. The plaintiff thereupon claimed a commission of $220. and not receiving same brought suit therefor.

There was no evidence tending to prove the value of the services rendered on a quantum meruit and no recovery sought thereon. The plaintiff in his brief says: “The only services that plaintiff was expected to render was the obtaining of a certain price for the defendant and not the finding of the purchaser. Nor can it be said that it is within the power of the principal to revoke an agency in a case like the one at bar. An agency when coupled with an interest is not revocable at pleasure of the principal.”

There was nothing paid to the defendant as a consideration for the said agency; and it is not claimed-that the plaintiff rendered the services undertaken, that is, securing from the C. & N. W. R. R. Co. a sum exceeding $9,000 for the said premises. The contention is that the agency was coupled with an interest and therefore irrevocable. It is not irrevocable because of its being an exclusive agency. Pretzel v. Anderson, 162 Ill. App. 538; Waterman v. Boltinghouse, 82 Cal. 650; Mechem on Agency, sec. 204. It is true that if the appointment constituted a power coupled with an interest it was irrevocable. Was it coupled with an interest? We think not. In Mechem on Agency the author, in discussing what constitutes an interest, in section 205 says: “It must be an interest or estate in the thing itself or in the property which is the subject of the power;” and in section 207: “But a mere interest in the results or proceeds of the execution of the authority, as by way of compensation, is not enough. Thus where one is given authority to sell the lands or other property of another, and is to have a certain commission or share out of the proceeds for making the sale, the authority may be revoked at the will of the principal, even though in terms it was declared to be exclusive or irrevocable.”

See also Bonney v. Smith, 17 Ill. 531; Gilbert v. Holmes, 64 Ill. 548, and Walker v. Denison, 86 Ill. 142. The judgment is affirmed.

Affirmed.


text:
    John T. Johanson, Appellee, v. William Johnston Printing Company, Appellant.
    Gen. No. 17,452.
    1. Negligence—scalding hoiler repairer. Where from the evidence the jury may believe that plaintiff, a boiler inspector, informed defendant’s engineer to turn the cold water into. the combustion chamber because he was going in, and not to leave until he was done, and hot water began to be forced into the chamber when he was almost done and scalded him until the engineer returned five minutes later, a finding of negligence will be sustained.
    2. Negligence—care as to invitee. Where a lessee in possession of a building informs the owner’s agent that the boiler is defective and such agent notifies a company which sends its superintendent to investigate and report, such superintendent is rightly on the premises and the lessee owes him the duty to exercise ordinary care while he is on the premises in connection with the work.
    3. Master and servant—when servant is acting within scope of employment. Where an engineer charged with the care of the engine room and boiler of a building for one in possession thereof as lessee, is assisting a superintendent of a company who is sent to investigate and report as to alleged defects in the boiler on complaint by the lessee to the agent of the owner, such engineer in assisting the superintendent under his direction is in the performance of proper and usual duties fairly implied from the nature of and within the scope of his employment when there is no evidence that, at the time of the investigation, the lessee excused said engineer from his duties.
    Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March . term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Charles J. O’Connor and J. C. M. Clow, for appellant.
    Edward J. Queeny and William J. Lacey, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendant, here the appellant, was in possession of the building known and described as Nos. 190-192 Fifth avenue, Chicago, under a lease for the term of five years, with the usual covenant to repair and yield up the same at the expiration of the term in good condition and repair, loss by fire and ordinary wear excepted. The boiler in the engine room began to leak and Mr. Johnston of the defendant Company called up Bond & Co., the agents for the owner of the building, and told them of the bad condition of the boiler, and thereupon Bond & Go. called up the Page Boiler Co. and asked that a man be sent to look at the boiler and report to them. In compliance with this request the Page Boiler Co. sent the plaintiff, its superintend-. ent, to examine the boiler. On arriving at the said building the plaintiff inquired of the Sunset Distilling Company, a tenant of the defendant, occupying the first floor of the said building, the location of the engine room and being directed thereto found the same in the basement and there met Mr. Bossow, the defendant’s engineer. The fire had been drawn from under the boiler a few hours before plaintiff arrived. Mr. Bossow told the plaintiff that the boiler leaked so that it could not be fired. There was some talk between the two men and plaintiff testified that he told Mr. Bossow that he would go into the combustion chamber to find the trouble and for Mr. Bossow to turn the cold water in and not to go away until he was done; that the cold water was turned in and the plaintiff went into the combustion chamber and was nearly through when the hot water began to be forced into the combustion chamber and on him and he was being scalded; that he then became excited and began to call and was there about five minutes before Bossow returned and turned off the water and he was able to get out, but was badly scalded. Mr. Bossow testified that he turned on the cold water as requested and told the plaintiff it was not necessary to go into the combustion chamber to locate the trouble, because they could see it from the outside; that the elevator bell rang; that as a part of his duties he ran the elevator and was required to answer the call, and he told the plaintiff that the water was turned on and not to go under the boiler into the combustion chamber until he came back and they would then find the leak; that the plaintiff was not in the combustion chamber when he left, and after doing certain work he returned and found the plaintiff under the boiler with his head part way out; that he ran and shut off the water and opened the hole in the rear of the combustion chamber through which plaintiff managed to get out.

The jury found the defendant guilty and assessed the plaintiff’s damages at $2916, and the court entering judgment thereon the defendant appealed.

If the testimony of Mr. Eossow be true, there was no negligence by anyone except the plaintiff. If the testimony of the plaintiff be true, and it is evident the jury so accepted it, and there is no good reason why we should hold contrary to the finding of the jury thereon, the plaintiff was guilty of no contributory negligence and Eossow was clearly guilty of negligence as charged.

Whether it was the duty of the defendant or the owner to make the necessary repairs on the said boiler, we think it not necessary to here determine. Under the circumstances the plaintiff was rightly on the said premises on the invitation of the defendant through Bond & Co., and the defendant, in possession and control of the premises in question, owed him the duty of exercising ordinary care while he was on the premises in connection with the work in question.

The principal contention of the defendant, presented ably and exhaustively, is that under the circumstances, assuming that Eossow was guilty of negligence as charged, the doctrine of respondeat superior does not apply. It is urged that Eossow, in turning on the water and assisting the plaintiff, under the directions of the plaintiff, was engaged in the work of another, either the plaintiff or the Page Boiler Company, and that in the assistance he rendered plaintiff he was a mere volunteer acting without the scope of his employment. The principle of law invoked by the defendant that a master is not liable for the acts of a servant in the performance of the servant’s own work or that of another, or, in other words, without the scope of his employment, may be conceded.

In its brief the defendant, in support of its argument, quotes the following from Grace & Hyde Co. v. Probst, 208 Ill. 147: “One who is the general agent of another may be loaned or hired by his master to a third party for some special service, and as to that particular service he will become the agent of the third party. The master is the one who has the direction and control of the servant, and the test is, whether, in the particular service, the servant continues liable to the direction and control of his master or becomes subject to the party to whom he is loaned or hired.”

Tested by this rule we find no evidence that the defendant either loaned or hired Eossow to the plaintiff or the Page Boiler Company and no evidence that Eossow was at any time under the direction and control of any other than the defendant. On the contrary, the evidence tends to show that during all of said time Eossow was under the direction of the defendant. One of the duties of his employment was the care of the engine room and the boiler, and there is no evidence that at the time in question he was excused therefrom by the defendant. It was in the interest of the defendant that the leak in the boiler be speedily discovered and remedied, and it may be readily surmised what the defendant would have said to Eossow if he had refused to co-operate in this service in the interests of the defendant.

In Wood on Master and Servant it is said, section 279:

“The question usually presented is whether, as a matter of fact, or of law, the injury was received under such circumstances that, under the employment, the master can be said to have authorised the act, for if he did not, either in fact or in law, he cannot be made chargeable for its consequences, because, not having been done under authority from him, express or implied, it can, in no sense, be said to be his act, and the maxim previously referred to does not apply. The test of liability in all cases depends upon the question whether the injury was committed by the authority of the master expressly conferred, or fairly implied from the nature of the employment and the duties incident to it. This leads us then to the general and inflexible rule controlling in all such cases, and that is, that for all acts done by the servant under the express orders or direction of the master, as well as for all acts done in execution of his master’s business within the scope of his employment, the master is responsible; but, when the act is not within the scope of his employment, or in obedience to the master’s orders, it is the act of the servant and not of the master, and the servant alone is responsible therefor.”

It seems to us that Eossow in assisting the plaintiff was in the performance of proper and usual duties fairly implied from the nature of and within the scope of his employment. This opinion is sustained by Railroad v. Ward, 98 Tenn. 123; Welch v. Maine Cent. R. Co., 86 Me. 552, and Eason v. S. & E. T. Ry. Co., 65 Tex. 577, with the many authorities therein cited and reviewed.

The judgment is affirmed.

Affirmed.


text:
    F. J. lewis Manufacturing Company, Appellee, v. Ira M. Cobe, Appellant.
    Gen. No. 17,479.
    1. Contracts—modification. Where plaintiff enters into a contract guarantied by defendant with an automobile club, to do certain work in preparing a road and after he enters upon the work, at the request of defendant acting for the club, a new agreement is entered into whereby oil is to be used instead of taroid and the contract price, reduced $700, a warranty included in the first agreement that the road would be suitable for races and remain in good condition does not cover the new arrangement.
    2. Damages—for delay in completion of contract. In an action to recover for work done on a road for an automobile .club, guarantied by defendant, the defendant is not entitled to be allowed the damages stipulated in the contract in case of delay in completion, where part of the delay is caused by the club.
    3. Appeals and errors—interest for unreasonable and vexatious delay in payment. In an action on a contract for preparing a road, a judgment including interest allowed by the jury because of an unreasonable and vexatious delay in payment is affirmed, defendant having had two jury trials with substantially the same result.
    Appeal from the Municipal Court of Chicago; the Hon. William C. De Wolf, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Foreman, Levin & Robertson, for appellant.
    Elmer, & Cohen, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the appellee, entered into a contract with the Chicago Automobile Club, guaranteed by the defendant, here the appellant, wherein it was agreed that the plaintiff would do certain work in preparation of about twenty-three miles of road near Crown Point, Indiana, for certain automobile races to be conducted by the said Club. The work agreed to be done was covered, by six specifications and followed by provisions whereby the plaintiff agreed, “notwithstanding the specifications in the foregoing paragraphs, he will perforin all such other and further work as may be necessary to put the road into good condition for the purposes of said races, and any additional labor or material that may be necessary to place said roads in good condition for the purpose of said races shall be done and performed by second party without additional cost or charge;” and also “warrants that the methods of construction by it employed shall be such that the road shall be suitable for the purposes contemplated herein, and shall continue to be in such good condition until the road race of June 39th shall be run.”

After the plaintiff had begun the work under said contract, Mr. Ira M. Cobe, the President of the said Chicago Automobile Club, acting in its behalf, had certain conversations with the Lewis Brothers, officers of the plaintiff, a corporation, in relation to changing the specifications as applied to the work on about two and a half miles of the said road, the said portion being spoken of as the “gravel road,” and will hereinafter be referred to by that name. The result of the said conversations was that a verbal agreement was made changing the specifications in relation to that portion of the race course known as the gravel road, and by reason of the said change a reduction of $700 in the contract price was agreed upon by the parties. The road was completed and the races ran as arranged. The plaintiff thereupon demanded the payment of $7,420, the balance unpaid on the contract price, after deducting therefrom the said $700, and payment thereof being refused brought an action of the first class in the Municipal Court of Chicago against the defendant on his guaranty. The issues were submitted to a jury, who found for the plaintiff and assessed its damages at $7,791, and judgment was entered thereon about two months thereafter for $7,888.38, the court including therein, under the statute, the interest on the amount of the verdict from the time of its return to the time of the judgment, and the defendant appealed therefrom.

It is contended by the defendant that the plaintiff failed to prove either a strict or substantial compliance with its contract; and if it be held there was a substantial compliance, the rule of substantial compliance is not applicable to the case. Whether the rule of substantial compliance is applicable is not necessary to determine. The question of a compliance with the contract as modified was submitted to the jury under instructions of the court, of which no complaint is made. The jury found that the contract as modified was complied with by the plaintiff; and we are of the opinion that it was clearly proven that" the road was prepared in accordance with the specifications of the modified contract.

However, the evidence shows that the two and a half miles of the course described as the gravel road became rough, with some twenty holes therein, during the first races; and the defendant insists that this was not a performance of the contract, but was a breach of the warranty that the road as prepared by the plaintiff under the terms of the contract would be in good condition for the said races throughout the same, for which breach of the contract he could recoup damages.

The specifications in the written contract called for a binding of the road by an application of taroid. After the plaintiff began work on the road under this contract the evidence tends to show that the defendant, acting for the Club, stopped the work on the gravel road for the purpose of having an expert on road building examine the same and advise as to the best manner of preparing the same for the races. This was done and the expert advised that oil be used instead of taroid, and on the request of the defendant, acting for the Club, a change was made in the said specifications as applied to the gravel road and oil was used thereon instead of taroid. This preparation being less expensive than that first undertaken by the plaintiff, a reduction of $700 from the contract price was agreed on by the parties. As stated, the gravel road thus prepared did not remain in good condition during the races, although the remainder of the course appears to have been satisfactory. By the written contract the plaintiff agreed and bound itself to prepare the said race course in a certain manner and that it would do the work “necessary to put the road into good condition for the purpose of said races,” etc.; and how the clause in the contract that it “warrants that the methods of construction by it employed shall be such that the road shall be suitable for the purposes contemplated herein,” etc., imposed any additional duty or created an additional liability, we are unable to see. If, however, as an express warranty, it did create an additional liability on the original contract, there is no proof of any kind that the. said warranty applied to the subsequent agreement made in relation to the preparation of the said gravel road. But it clearly appears that by the written contract the plaintiff undertook to prepare the road in such manner that it would remain in good condition throughout the races. Was the condition of the gravel road as shown by the evidence to be held a breach of the contract? The evidence in regard to the subsequent verbal agreement pertaining to the preparation of the gravel road was in some respects conflicting, but the jury evidently took the view that the plaintiff performed the work on that part of the course in accordance with the subsequent agreement in relation thereto, and that the same was done as required by the Club, through the defendant, on the advice of his expert road builder. We think the evidence supports this conclusion, and as there was no evidence that the plaintiff undertook in the subsequent agreement to be responsible for the sufficiency for racing purposes of the work therein agreed to be performed, there was no duty devolving upon the plaintiff in regard thereto except to construct same as agreed. The evidence tends to show that this was done by the plaintiff; and under the circumstances we do not think that the agreement first made upon the part of the plaintiff that the road to be constructed by it thereunder would be suitable for races and remain in good condition throughout the same, covered the new and different arrangement entered into at the recpiest of the defendant acting for the said Club in relation to the preparation of the gravel road.

The defendant claims he was entitled to be allowed the damages stipulated in the contract in case, of a delay in the completion of the said work. The evidence tends to show a certain part of the delay was caused by the said Club, and, further, we think the evidence proves that clause of the contract was expressly waived. The claim that interest should not have been allowed by the jury because of an unreasonable and vexatious delay in the payment, because there was no liability therefor, is untenable. The defendant has had two jury trials with substantially the same result, and there appearing to us no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    The President and Directors of The Manhattan Company et al., Appellees, v. Ernest H. Eversz, Trading as Eversz & Co., Appellant.
    Gen. No. 17,528.
    1. Appeals and ebbobs—harmless error. In an action for rent, the admission of a transcript of the record in another action for prior instalments is not reversible error, where the instructions to the jury are such that no harm was done to defendant by its admission.
    2. Judgment—when res adjudícala. In an action for rent, a former judgment for prior instalments is res adjudicata of all issues except as to payment of the particular instalments sought to be recovered.
    3. Insthuctioxs—when proper to direct verdict. In an action for rent, where the evidence offered by defendant does not tend to prove payment or establish any defense, it is proper to instruct the jury to return a verdict for plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. Is adobe H. Himes, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Alden, Latham & Young, for appellant.
    Moses, Rosenthal & Kennedy, for appellees; Henry H. Kennedy and Walter Bachrach, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiffs, here the appellees, brought a suit against the defendant, here the appellant, to recover on a lease three instalments of rent payable on the first day of August and November, 1909, and February 1, 1910, of $450 each. On a trial the court instructed the jury to return a verdict for the plaintiffs, assessing their damages at $1,402.31, and on such verdict so returned entered judgment and the defendant appealed.

In a case between the same parties reported in 171 HI. App. 449, a judgment in favor of the plaintiffs in an action on the same lease for prior instalments of the rent was affirmed, to which we refer for a more detailed statement of the controversy. A transcript of the record in that case was introduced in evidence on the trial of the case at bar. The defendant urges as error the admission of the said transcript of the record except as to the pleadings and the judgment. Even if it be conceded that the pleadings sufficiently presented the issues and the court erred as claimed, we would not hold it reversible error, for by the action of the court in instructing the jury no harm was done the defendant by admitting the evidence complained of. It is contended that there were other and different issues presented in the case at bar than in the former case. We have made a careful examination and comparison of the issues in both cases and are unable to see any material difference therein except as to the different instalments of rent, and the former judgment was res adjudicata of all of said issues except as to the payment of the particular instalments of rent here sought to be recovered. Louisville, N. A. & C. R. Co. v. Carson, 169 Ill. 247, and Marshall v. Grosse Clothing Co., 184 Ill. 421.

The defendant claims that under the issues the plaintiffs were bound to make proof that the instalments of rent in question had not been paid. Whether that position is correct or not is not necessary to decide, because there is competent evidence in the record showing the same were not paid. The incompetent evidence should have been excluded by the court, but under the circumstances is not reversible error. The evidence offered by the defendant did not tend to prove a payment of the said instalments or any of them, or establish any defense to the action, and the court properly instructed the jury.

The judgment is affirmed.

Affirmed.