text:
    American Insurance Company of Newark, New Jersey, Appellee, v. Ida B. Keefer, Appellant.
    Gen. No. 6,465.
    1. Judgment, § 323

      -—what proof necessary to justify setting aside in equity. To justify a court of equity in setting aside a judgment because the return of service of the summons is untrue, the proof must be clear and convincing.
    2. Process, § 85*—what proof is insufficient to overcome return of service of summons. Where the return of service of the summons is made by an officer whose duty it is to serve the writ, it will not be set aside on the testimony alone of the person alleged to have been served.
    3. Process, § 85*—when, ex parte affidavit of officer does not impeach other testimony as to service of summons and return. An ex parte affidavit executed by a former deputy sheriff in another State a year after leaving the State as to the manner in which he had served a certain summons and made return of service thereof did not impeach his later testimony based upon a memorandum made by him at the time of making such service and return and discovered by him after making the affidavit, in a suit to set aside the judgment rendered upon such summons and return.

      4. Process, § 85

      —what does not impeach testimony of officer as to making return of summons. The testimony by an office deputy sheriff that he had, by direction of the deputy sheriff making the service of a summons, made the return of the summons thereon for the latter, did not impeach the latter’s testimony that he had himself made the return, as it was immaterial whether he wrote the return personally or through the office deputy.
    5. Insurance, § 456*-—what constitutes waiver of time limit for filing proofs of loss. The announcement by an insurance company to the beneficiary of a policy issued by it within 6 months after a loss that it does not intend to pay the loss is a waiver of a requirement of the policy that proof of loss must be furnished by a beneficiary within 6 months.
    6. Judoment, § 318*—when evidence is insufficient to warrant vacation of. Evidence held insufficient to vacate a judgment for recovery of a loss under an insurance policy where the only defenses, in a suit to set aside the judgment, were technical.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed October 16, 1917.
    Rehearing denied November 22, 1917.
    Cameron & Cameron, for appellant.
    Miles & Fuller, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Ida B. Keefer brought a suit at law in the Peoria Circuit Court against the American Insurance Company of Newark, New Jersey, hereinafter called the company, upon a policy of fire insurance. Summons was issued and returned served in proper form upon Fred Jay, agent of said company. Plaintiff waited about a year for defendant-to appear and afterwards a default was entered and proofs were heard and there was a judgment for plaintiff for $761.10, and costs. Thereafter the company began this suit by filing a bill in equity against Mrsi Keefer to have the judgment vacated and leave given the company to defend in the suit at law, that relief being asked on the ground that the summons was not, in fact, served upon Jay, its agent. The bill set up two grounds of defense to the policy. The bill was answered and the cause was referred to a master to take and report the proofs and his conclusions. He reported the proofs and his conclusions favorable to the company, objections and exceptions thereto were overruled, and there was a decree vacating the judgment, setting aside the default, and giving the company leave to plead. Mrs. Keefer appeals from that decree. Appellant has omitted most of the evidence, except that relating to the service of the summons.

The law is well settled that to justify a court of equity in setting aside a judgment because the return of service of the summons is untrue the proof must be clear and convincing, and that when such return is made by an officer whose duty it is to serve the writ it will not be set aside on the testimony alone of the person alleged to have been served. The return here in question shows service upon the company by leaving a true and correct copy thereof with Fred Jay, the agent of said company, its president not being found in Peoria county. The return is dated June 4,1914, and is signed “Francis Gr. Minor, sheriff, by W. L. Hayward, Deputy.” Jay was the agent of the company at Elmwood in Peoria county,-and the president was not in the county, and Hayward was a deputy sheriff. Jay testified, denying that he was served with a copy of the summons. ■ Each question put to him by the company’s solicitor was specially limited to asking if he was served with a copy of the summons in that suit. His replies were limited to that question. Under the authorities the return' could not be defeated by his evidence. Hayward testified that he did serve it by delivering a copy to Jay; that he left Peoria at 7 a. m. on June 4, 1914, on a train for Elmwood and carried with him this summons and a copy thereof, which had been compared in the office before he left; that he had known Jay for many years; that he saw. him going up a stairs, and went up to what he supposed was Jay’s office, and there told Jay he had a summons for him as agent for the-insurance company, and that Jay said, “You need not read it to me; I know what it is,” and he then delivered to Jay a copy and came away and returned to Peoria by the next train, and on that day filled out and signed the return in the sheriff’s office. His testimony is sought to be impeached by certain other things. Before this controversy arose Hayward had removed to Omaha, and after this judgment had been taken he received a letter from an agent of the company. in Om'aha asking him to come to his office, and Hayward went there on January 13, 1916, and, after a conversation with that agent, the latter prepared and Hayward signed and swore to an affidavit that he served said summons upon said company by reading the same to Fred Jay as its agent and not in any other way, and that he distinctly remembered reading it to Jay because he knew Mrs. Keefer and Jay, and knew of this fire, and that he did not deliver a copy of the summons to Jay or to any other person. Hayward admitted making this affidavit, but said that about a week afterwards he came across a memorandum made by him in a little book, and that he then recalled the circumstances and remembered that he did deliver a copy of the summons to Jay, and that his affidavit was incorrect. He testified that whenever he left the sheriff’s office with papers to serve he made a memorandum of what he was to do, sometimes in one or the other of two memorandum books which he had, and sometimes on a piece of paper; that when he made the entry in a memorandum book he drew lead pencil marks across it at the end of the day, if he had done the work indicated. He produced a memorandum. book which had on it the figures: “6/4— 1914, ’ ’ and which gave the amount of the fare to Elm-wood, and which also read: “Served Fred D. Jay by copy.” Across the entire entry were two lead pencil marks in the form of a letter “X.” He testified that he made this memorandum that morning before he started for Elmwood, and that he put the pencil mark upon the entry after he had done the work and returned to Peoria, on the same day. He testified that it was finding this memorandum in this book about a week after he made his affidavit that first refreshed his recollection, but that at the time of testifying he distinctly remembered the circumstance of delivering this copy of the summons to Jay in the office of the latter in Elmwood on the day in question. The full name of Jay was Fred D. Jay. This evidence is criticised by the company because he remained deputy sheriff over 6 months after the date in question and there was no later entry of this kind in that book, and hardly any earlier entry relating to the service of summons. He, however, testified that he had another book in which he made like entries and that he also often made them on a piece of paper, which paper he destroyed after he returned from performing the official duty required. Hayward is supposed to be impeached by another fact. "While he testified that he filled out and signed the return himself on his return from Elmwood that day, Edward S. Eyan, the sheriff’s office deputy, testified that he filled out and signed the return himself. One or the other of them is mistaken. We do not see that it makes any difference which is correct. Eyan says he wrote the return by direction of Hayward and it is immaterial whether Hayward wrote it personally or through Eyan. When Hayward made this affidavit in Omaha he did not have present the summons and his return, and it does not appear that he was told what that return showed, and it is apparent that he did not remember it. He had boen out of office over a year and evidently did not recollect how the statutes of Illinois required such a summons to be served. We presume every deputy sheriff serves many more subpoenas by reading than he does summonses by copy. When questioned ex parte in a foreign State how he served.a particular writ a year before in Illinois, he might easily fail to remember correctly the manner of service. We are unable to say that the circumstances above narrated impeach the testimony of Hayward, but if they do, and his testimony is rejected, it leaves only the evidence of Jay to overcome the return, and the-authorities are clear that his evidence alone cannot defeat it. The stability of judicial proceedings would be greatly impaired if the evidence of a person alleged to have been served could overcome the official return made by a sworn officer in performance of his official duties. Appellant has not raised the question whether a public officer will be permitted to testify in contradiction of his official return, and we do not decide that question.

Some other things should be noted. Hayward always has claimed that he served that summons on Jay that day in Jay’s office, the only variance between his affidavit and his testimony being that in the former he said he only read it to Jay. Care was taken not to ask Jay whether the summons was read to him. If it was only read to him, his knowledge of the suit thus obtained was the knowledge of the company. It averred in its bill that it did not know of the suit at law until a few days before this bill was filed, but, if this summons was read to J ay, the company through him knew of it a year and a quarter before it filed the bill.

The bill set up two defenses: (1) A failure of Mrs. Keefer to furnish proofs of loss within 6 months as required by the policy; and (2) that the building was insured as a dwelling and when burned was occupied as a hotel, which was a greater risk, for which it charged a higher rate, and under the terms of the policy that made it void. There is a letter in evidence from the insurance company to the attorneys for Mrs. Keefer before the expiration of said 6 months, ' which plainly indicated that it did not intend to pay the loss, and such an announcement waives proofs of loss. Williamsburg City Fire Ins. Co. v. Cary, 83 Ill. 453; Grange Mill Co. v. Western Assur. Co., 118 Ill. 396; Rostetter v. American Ins. Co., 184 Ill. App. 157. The house was situated in the Village of Brimfield in Peoria county, and it may well be Questioned whether calling a dwelling house a hotel in a small village necessarily increases the risk or changes its character. The proposed defenses therefore were technical.

Prom a careful perusal of the evidence we are of opinion that the company was not entitled to have the judgment vacated. The decree is therefore reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    William C. Boldt, Appellee, v. American Bottle Company, Appellant.
    Gen. No. 6,361.

      (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 701

      —when evidence shows that negligence of plaintiffs fellow-servant is proximate cause of injury. Evidence held sufficient to warrant the finding that the negligence of plaintiff’s fellow workman in failing to hold up a certain lehr or conveyor in defendant’s bottle factory while plaintiff was hammering at the drift pin in repairing the lehr, by reason whereof plaintiff's hammer was so deflected as to strike and injure him, was the proximate cause of the injury.
    2. Workmen’s Compensation Act, § 2*—what is effect of rejection of. Plaintiff’s right of recovery for injuries sustained while employed by defendant was not affected by any question of assumed risk or contributory negligence or by the fact that the negligence which caused the injury was the negligence of a fellow-servant, where defendant had rejected the Workmen’s Compensation Act.

      Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 16, 1917.
    Statement of the Case.
    Action by William C. Boldt, plaintiff, against American Bottle Company, defendant, to recover damages for personal injuries sustained by plaintiff while in defendant’s employ. From a judgment for plaintiff for $2,700, defendant appeals.
    Arthur H. Shay, for appellant.
    Browne & Wiley and Butters & Clark, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

3. Appeal and error, § 1238 —when defendant may not complain as to variance. Defendant was not in position to question the sufficiency of plaintiff’s proof in support of his allegation that defendant had rejected the Workmen’s Compensation Act, where defendant in its asked and given instruction had admitted it was not working under that act and it was not liable to its employees for injuries suffered in the course of their employment unless such injuries were caused by its negligence.

4. Damages, § 141*—when not excessive. A verdict for $2,700 was not excessive where the injuries received resulted in permanent loss of plaintiff’s left eye.


text:
    Charles Whitney v. Frank C. Seidel, Appellee. Lawrence A. Doolittle, Appellant.
    Gen. No. 6,401.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1917.
    .Reversed and remanded with directions.
    Opinion filed October 16, 1917.
    Statement of the Case.
    Bill of interpleader by Charles Whitney, complainant, against Frank C. Seidel and Lawrence A. Doolittle, defendants, as to a sum of $1,500 held by complainant in escrow and paid by him into court, whereupon he was discharged from liability. From a decree for defendant Seidel for $841.52 and for defendant Doolittle for the balance of the sum, defendant Doolittle appeals and defendant Seidel assigns cross error.
    Clarence W. Diver and Charles H. King, for appellant.

      Abstract of the Decision.
    Sales, § 96

      —what constitutes fraud by seller justifying rescinding of contract. Under a contract for the sale by one and the purchase by the other of the two signers of a contract of a certain stock of goods in a store, providing that the seller should continue in and conduct the business up to a certain date with a view to reducing the stock on that date to an amount not exceeding a certain invoice value, a secret removal by the seller and appropriation to his own usé on the day preceding such date of the best and most valuable of the goods constituted a fraud upon the purchaser, legally justifying him in rescinding the sale, and entitling him to a return of part of the purchase money paid by him in escrow under the contract, on a bill of interpleader filed by the holder in escrow."
    Cooke, Pope & Pope, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    George Kopf, Appellee, v. Amos Yordy, Appellant.
    Gen. No. 6,431.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Stephenson county; the Hon. Rtchabd S. Fabrand, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 16, 1917.
    Statement of the Case.
    Action by George Kopf, plaintiff, against Amos Yordy, defendant, to recover on a promissory note for $1,500, due in one year with interest at 6 per cent, indorsed by defendant at the time of its execution by the makers. From a judgment for the plaintiff on general demurrer to defendant’s second, third and fourth additional pleas, defendant appeals.
    Abstract of the .Decision.
    1. Bills and notes, § 327

      —what is not legal defense to indorser of note at time of execution by makers. The failure of the payee of a note secured by an unrecorded trust deed to redeem from a sheriff’s sale under a subsequent recorded trust deed is not, as a matter of law, a legal defense to an indorser on the note at the time it was executed by the makers in an action against him as such indorser.
    2. Bills and notes, § 333*—when loss of indorser due to failure of payee to record trust deed may be offset in action by payee. Where the payee of a note holding a trust deed as security therefor failed to record the deed and the property involved was sold under a subsequent recorded trust deed, held that in an action against an indorser on the note at the time of its execution by the makers, the indorser might plead in offset the extent of any loss by him due to the payee’s neglect in recording the trust deed held by him.
    3. Bills and notes, § 460*—when reason for failing to record trust deed securing note is question for jury. In an action by the payee of a note secured by a trust deed against one indorsing the note at the time of the execution thereof by the maker, held that whether plaintiff failed of his own accord to record the deed of trust or because of defendant’s request was a question for the jury.
    4. Appeal and error, § 1411*—when finding of jury not disturbed. Evidence held insufficient to warrant the finding that the jury should have found for defendant Instead of for plaintiff on a sharply controverted question of fact between them.

      For the decision on a prior appeal, see 200 Ill. App. 409.
    William N. Cronkrite, Robert A. Hunter and R. J. Carnahan, for appellant.
    R. R. Tiffany, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

5. Bills and notes, § 431*—when admission of parol evidence in action against indorser of note is not error. Evidence of a conversation taking place at the time defendant signed a note as. indorser, not admitted for the purpose of varying or changing the character of defendant’s liability or legal obligation as indorser and not having that effect, was properly submitted to the jury under an instruction that defendant assumed by signing his name the obligation of an indorser and that such obligation could not he changed hy parol evidence, in an action against the indorser.

6. Instructions, § 10*—number of on same point. The court is not bound to give more than one instruction on the same point.

7. Bills and notes, § 277*—what is/effect of note falling due on Sunday as to time of making demand of payment. An instruction that defendant would be released as indorser on the note sued on and due and payable in one year from date, if plaintiff failed to exhibit the note and demand payment from the makers on the purported date of maturity, held properly refused where the evidence showed that the latter date was Sunday, as under the statute the note became due the day following and demand could be legally made on that or on the next day.


text:
    Lila Marie McConnell, by Charles W. McConnell, Appellee, v. Emil Bogaert et al., Appellants.
    Gen. No. 6,452.
    1. Intoxicating liquors, § 227

      —when evidence shows that liquor furnished by defendants contributed to intoxication of father of plaintiff. In an action hy a minor against saloon keepers under section 9 of the Dramshop Act (J. & A. If 4609), to recover for the death of plaintiff’s father, alleged to have been due to intoxication caused hy liquor purchased of defendants, evidence held sufficient to show that the liquor furnished hy defendants to the decedent contributed to his intoxication, to satisfy the requirements of the Dram-shop Act, without showing that it contributed in an appreciable and essential degree.

      2. Intoxicating liquors, § 261

      —when defendants may not complain of failure of proof that liquor furnished, decedent contributed to his intoxication. In an action by a child, against saloon keepers to recover for the death of her father as the result of intoxication, held that defendants were not in position to complain that the proof was insufficient to show that the liquor furnished decedent 'by them contributed to his intoxication in an appreciable and essential degree, where the jury were advised in instructions asked' by defendants that such liquor must have so contributed to such intoxication, and the evidence warranted a finding at least 15 glasses of beer were sold to him in 3 hours.
    3. Intoxicating liquors, § 208*—when plaintiff may show that intoxication was caused by other saloon keepers than defendants. In an action under the Dramshop Act to recover for the death of plaintiff’s father, claimed to have been due to intoxicating liquor furnished by defendant saloon keepers, plaintiff can prove that intoxication was caused by saloon keepers other than the defendants.
    4. Intoxicating liquors, § 261*—when defendants may not complain of insufficient proof to show intoxication. Where testimony that other than defendants contributed to a party’s intoxication was kept out by defendants, in an action under the Dramshop Act, defendants were not in position to complain of insufficient proof to show intoxication.
    5. Intoxicating liquors, § 218*—when evidence as to change in circumstances of plaintiff is inadmissible. Subsequent advantageous change in the circumstances of a plaintiff, in an action to recover damages for death of plaintiff’s parent under the Dramshop Act, cannot be given in evidence in mitigation of damages, and same does not diminish the damages.
    6. Intoxicating liquors, § 245*—when verdict is not excessive in action for death of parent. In an action under the Dramshop Act to recover for the death of plaintiff’s father, held that a verdict for $4,500 was not excessive for the loss of the father, where he had been earning $50 a month, spent $3 a week for her board, bought her clothing and other necessaries and took care of her, and she was 6 or 7 years old at the time of his death and 12 years old at the time of trial.
    7. Intoxicating liquors, § 233*—what are proper elements of damages in an action for death of parent. In an action under the Dramshop Act to recover damages for the death of plaintiff’s parent, the value of his life, the value of his services in the attention to and care and superintendence of his children and in their education, of which they are deprived by his death, were proper elements of pecuniary damage.

      8. Pabent and child, § 11

      —what are rights of child, as to support hy parent. A child is entitled to support from her father during her minority and to a reasonable expectation of benefit, as of right or as of grace or favor, from the continuance of his life.
    Appeal from the Circuit Court of Bock Island county; the Hon. William T. Chub oh, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 16, 1917.
    Joseph L. Haas, for appellants.
    Dietz & Sinnett, for appellee.

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

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is an action on the case based on section 9 of the Dramshop Act (J. & A. j[ 4609), and was brought by appellee, Lila Marie McConnell, a minor, by her next friend, against the appellants Emil Bogaert and Mathew Brady, keepers of dramshops at Moline, in Rock Island county, and the respective owners of the premises in which the dramshops were located and carried on, to recover damages to her means of support by reason of the death of her father alleged to have been caused in consequence of intoxication produced in whole or in part by the sale of intoxicating liquors to him by the dramshop keepers. The declaration consisted of two counts charging the death to have resulted in that way.

The appellants pleaded not guilty, and upon the trial the jury returned a verdict in favor of the appellee, assessing her damages at $4,500 upon which the court rendered judgment, and from this judgment an appeal is prosecuted.

Robert B. G-odfrey, appellee’s father, was a teamster employed by the City of Moline. On the evening of June 4, 1911, the deceased went to the saloon of the appellant Bogaert and drank some beer; from there he went to the saloon of the appellant Brady, where he had more drinks. Upstairs in the building where Brady’s saloon is located is a dance hall, and a dance was in progress at that time, and with it a regular bar in operation. Godfrey spent considerable time there that evening. The last seen of him before the injury was about midnight at the door of the dance hall. A little later he was found seriously injured lying between the east and westbound tracks of the C., B. I. & P. Eailroad at a point about 2% blocks distant from the dance hall. He was taken to the hospital where he died 2 days after from his injuries.

At the time of the death of Godfrey he was a widower, and the appellee, his minor daughter, was supported by him. He was paying for her board and furnishing her clothing and other necessities. Two months after the death of Godfrey the appellee was legally adopted by one O. W. McConnell, who cared for her after that time, and she was still living with him at the time of the trial.

It is contended by appellants that to make them liable the liquor furnished must have contributed to the intoxication of the deceased in an appreciable and essential degree; and that the proof in this case was not sufficient under the rule stated. We are of the opinion that the proof was sufficient to satisfy the requirements of the law, and that it shows that the liquor sold contributed to the intoxication. It was said in O’Halloran v. Kingston, 16 Ill. App. 662, that: “No doubt to meet just such cases the statute was devised, when it laid its penalty upon ‘the person or persons who may have caused the intoxication in whole or in part.’ And while those who contribute in a small degree may be thus made to suffer as much as those who are more culpable, yet it is a condition which is applied to the traffic in liquors, which the Legislature had the power to impose, and which the courts cannot ignore.” In the case of Hall v. Ditto, 128 Ill. App. 187, an instruction asked by the defendant in that case on the point involved, which was as follows: 1 ‘ That the plaintiff would not be entitled to recover unless the jury believed from a preponderance of the evidence that the liquor sold * * * by the defendant * * * contributed to the intoxication ‘in an appreciable and essential degree, ’ ” was refused to be given by the trial court, and the’ Appellate Court held that: “If the liquor sold caused the intoxication in whole or in part, the effect was ‘appreciable’ in an ‘essential’ degree, sufficient to meet the requirements of the statute. The statute is plain in language and context, not requiring interpretation, and the instruction propósed by appellant, if not positively vicious, was well calculated to confuse rather than enlighten the jury.” And Eggers v. Hardwick, 155 Ill. App. 259, is to the same effect.

But, assuming the law to be as contended by appellants, they are in no position to complain, as the jury were advised by the trial judge in two instructions asked by appellants that the intoxicating liquors must have contributed to an essential and appreciable degree to the intoxication. The appellants contend that the proof in this case only shows the sale of 3 glasses of beer to the deceased; but there is also evidence tending to show at least 15 sales of beer within 3 hours, and the jury were justified in finding at least that many sales from the proof. The appellee also sought to prove that the deceased went upstairs into the dance ball above one of those saloons where there was a regular bar in operation, and there had a great many drinks; but this testimony was kept out on the objection of appellants.

The law is, that a plaintiff- can prove that intoxication was caused partly by other saloon keepers thathe defendants. (Wanack v. Alexander, 78 Ill. App. 356; McIntire v. Morris, 199 Ill. App. 20.) It is incumbent upon the plaintiff in a case of this kind to prove that the deceased became intoxicated, and in some instances can only prove that by persons who saw him drink in different places. This then may become a necessary part of the proof of contributing to the intoxication, and hence this testimony offered was competent; but the testimony having been kept out by appellants’ objections they are not in a position to complain that there is not sufficient proof of the number of drinks taken to show intoxication. There was proof, also, by other witnesses, that later in the evening the deceased was intoxicated.

Appellants have argued this case as if the deceased left him surviving two daughters, but there is no proof in the record that any child survived him other than the appellee.

It appears that 2 months after the death of plaintiff’s father she was adopted by C. W. McConnell, as his daughter, and the appellants sought to prove that McConnell was well-to-do, and thereby to show that she was really benefited by her father’s death, and that her means of support were then otherwise provided for, which evidence was rejected by the court. It is strongly urged by the appellants that this evidence was competent and should have been admitted. We regard what was said in Deel v. Heiligenstein, 244 Ill. 239, as decisive on this point, namely, subsequent, advantageous change in the plaintiff’s circumstances cannot be given in evidence by defendant in mitigation of damages, and that the same does not diminish the damages.

It is also urged that the damages are excessive. Godfrey, the father of the appellee, was earning $50 per month, and was spending $3 per week for the appellee for her board; also buying her clothing and other necessaries, and talcing care of her. At the time of his death the appellee was between 6 and 7 years of age, and at the time of the trial she was ahont 12 years of age. While the recovery can only be had for pecuniary loss, manifestly that loss is the value of the life of the parent; then there is the value of the father’s services in the attention to and care and superintendence of his children, and in their education, of all of which they are deprived by his death, and all these matters are elements of pecuniary damages, (O’Fallon Coal & Mining Co. v. Laquet, 198 Ill. 128.) The plaintiff had a right to support from her father during her minority, and to a reasonable expectation of benefit, as of right, or as of grace or favor, from the continuance of his life. (City of Chicago v. Keefe, 114 Ill. 224; Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 539; Ohio & M. Ry. Co. v. Wangelin, 152 Ill. 138.) In view of the authorities and the facts involved, we cannot say that the amount of the judgment is excessive. The trial court gave all the instructions asked by the appellants, and the jury were very strongly instructed for their behalf. We find no reversible error in the record. The judgment is affirmed.

Judgment affirmed.


text:
    Sherman K. Moss, Appellee, v. Cora A. Moss, Appellant.
    Gen. No. 6,454.
    1. Executobs and administbatobs, § 164

      —how statutes as to al- ' lowances for support of widow or children construed. The provisions of statutes allowing awards out of the estate of a decedent for the support of his widow, or child or children if he left no widow, for a period after his death should be construed liberally.
    2. Executobs and administbatobs, § 164*—right of widow or child to reasonable award for support out of estate. Sections 74, 75, 77 of the Administration Act (J. & A. HIT 123, 124, 126), providing for awards to a decedent’s widow, or child or children if he leaves no widow, contemplates that the award shall be a reasonable one for the proper support for a period of one year after his death in a manner suitable to condition in life of the person to whom the award is made, taking also into account the condition of the decedent’s estate.
    3. Executobs and administbatobs-—when allowance to child for support is insufficient. An award of $1,200 held insufficient and $1,800 allowed, under sections 74, 75, 77 of the present Administration Act (J. & A. 123, 124, 126), to a child of decedent who, during the latter’s last illness, became afflicted with rheumatism and was suffering with same at the time of his death and would require medical attention and treatment, care and nursing for a year thereafter, where the decedent left an estate valued at $50,000.
    Appeal from the Circuit Court of Will county; the Hon. Abthub W. Deselm, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded with directions.
    Opinion filed October 16, 1917.
    John W. Downey, for appellant.
    James F. Galvin and Murphy & Lyon, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal by Cora A. Moss from a judgment of the Circuit Court of Will county, fixing- her award in the estate of her deceased father, George B. Moss, at $1,200.

The evidence shows that George B. Moss died testate at Plainfield in Will county on November 1, 1915; that he was a retired farmer, and a widower; and that the appellant was his daughter and housekeeper, and was living with him in the home established at Plain-field, after his retirement from the farm. The deceased left an estate of about $50,000. No question is raised on this appeal concerning the right of the appellant to an award out of the estate of her father, but the contention in the case concerns the amount to which the appellant was entitled under the provisions of sections 74, 75 and 77 of the present Administration Act (J. & A. jftf 123, 124, 126). Pursuant to the act in question, the Probate Court of Will county had appointed three appraisers; these appraisers determined that $4,000 be allowed as an award, which amount was approved by the Probate Court. The amount allowed, however, was objected to by Sherman K. Moss, one of the heirs and devisees of the deceased, who filed a petition alleging that the award was unreasonable, and unjust, and asked to have same reviewed by the Probate Court, which was done; thereupon the amount was reduced by court to $3,200, and from this order the petitioner prosecuted an appeal to the Circuit Court of Will county, and that court, upon a hearing, reduced the award to $1,200.

It is contended by the appellant that the amount as fixed by the Probate Court was reasonable and just, and should have been allowed to stand; and that the Circuit Court erred in reducing it. The statute contemplates that the award shall be a reasonable one for the proper support of the widow, or of the child or children in case there is no widow, for a period of one year after the death of the testator of intestate, in a manner suited to condition in life of the person to whom the award is to be made, taking into account, also, the condition of the estate of the testator or intestate. The provisions made by statutes of this character should be construed liberally. Gillett v. Gillett, 207 Ill. 147.

While we think the Circuit Court properly reduced the amount of the award allowed by the Probate Court, we are also of opinion that taldng into account the condition of the estate with reference to its value, which in this ldnd of a case should be considered as a proper element in connection with the appellant’s condition in life at the time of the death of her father, that the reduction exceeded what was required. The evidence shows that the appellant during the time of her father’s last illness became afflicted with rheumatism, and was still suffering from this ailment at the time of his death; and it was necessary that she should have medical attention and treatment, care and nursing, apparently for the entire year after the decease of her father. This fact, in view of the large value of the estate which he left, undoubtedly- entitled her to receive ample medical attention, as well as sufficient care and nursing, as a part of her proper support from the estate. If the appellant had not been afflicted with the disease which she contracted while in the service of her father, the sum of $1,200 fixed by the Circuit Court, we think, would have been reasonable and just; but under the circumstances here presented, at least $600 should be added to the allowance made for 'medical attention, nursing and proper care of the appellant for the year following her father’s death.

Judgment of the Circuit Court is therefore reversed and remanded with the direction that the amount of the award be fixed at $1,800.

Reversed and remanded with directions.


text:
    The Decatur Bridge Company v. Joseph H. Standart, Trustee for Oglesby Fraternity Building Association et al., Appellees. H. W. Johns-Manville Company, Appellant.
    Gen. No. 6,464.
    1. Mechanics’ hens, § 1

      —what is effect of doing work or furnishing of materials on a building. The doing of work or furnishing of materials on a building gives merely an inchoate lien or right to acquire a lien, and the statute prescribes the steps to be taken to perfect this lien.
    2. Mechanics’ hens, § 5*—how statutes relating to are to be construed. A mechanic’s or materialman’s lien is a secret one, existing only by statutes which are in derogation of the common law and opposed to common right and to be construed strictly.
    3. Mechanics’ liens, § 158*-—cumulative remedies. A mechanic’s or materialman's lien is a cumulative remedy, the "denial of which does not deprive a party of the right to a recovery on his contract in the usual way.
    4. Mechanics’ liens, § 152*—what does not operate to extend time for filing petition by subcontractor to enforce lién. Orders from the owners of a building to a subcontractor for items, charged to the owners, not for repair work done in connection with their original contract with the contractor, did not extend the time for filing a petition under the Mechanics’ Liens Act by the subcontractor to enforce a lien for other items furnished under the original contract with the contractor, which had expired, notwithstanding the owners had declared a default of the contractor in the meantime and themselves-completed the work.
    5. Mechanics’ liens, § 89*—what is effect of failure of owner to require statement of contractor before making of payment. The failure of the owner of a building to require from a contractor the statement provided for in section 5 of the Mechanics’ Liens Act (J. & A. f 7143), before making any payment to a contractor, does not bar the owner from asserting that he was compelled to pay more than the contract price to complete the work as a defense to a subcontractor’s claim, where the contractor’s statements were subsequently required and received.
    6. Mechanics’ hens, § 1*—what is not basis for lien. The right to a lien under the Mechanics’ Liens Act cannot be made to depend alone upon the omission of the owner to do or perform the duty imposed upon him by statute.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 16, 1917.
    L. W. Brewer, for appellant.
    Clarence Griggs and Kelly, Hale, Dammann & Coolidge, for appellees; J. F. Dammann, Jr., of counsel.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, sama topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

In September, 1913, the owners of adjacent lots entered into contracts with one Edmondson for the erection of a joint building upon which work was commenced within a short time thereafter. Edmondson afterwards contracted with appellant to furnish material for the roof of the joint building, and later for additional material. Appellant also made repairs to the same roof, caused by a storm; and its last item under its contracts and for such repairs was furnished May 25, 1914.

As the work progressed, payments were made by the owners to Edmondson at first without receiving or requiring the statements of the contractor contemplated by statute; but, at the time of making each of these payments, there was enough money left of the contract price in the owner’s hands to meet the demands of all subcontractors, as was shown in subsequent statements. The owners made payments afterwards, after requiring the statements from the contractor, showing the demand of appellant, at what it then was; and finally made one payment considerably more in amount than they should have made, in view of these statements.

Edmondson, in the spring of 1914, became involved financially and was unable to go on with his contracts; and the owners on May 26, 1914, through their architects, sent notices to the creditors and subcontractors of a meeting to be held May 29, 1914; and for each subcontractor to present his written claims. Appellant did not attend, the meeting, but presented its sworn statement of claim against Edmondson for $816.37. The owners declared a default against the contractor about June 1, 1914, and then completed the building at a necessary cost of considerably more than the original contract price.

The appellant at the request of the owners furnished material and labor on June 11, 1914, and again on October 14, 1914, for which it presented bills to the owners, and not to the contractors; and these bills were not for repair work done under its original contract with Edmondson.

A bill to foreclose a mechanic’s lien was filed against the owners and other creditors, including appellant, and on October 27, 1914, appellant filed its answer to the bill; also an intervening petition, alleging there was due it $816.37, and praying for a lien for such sum. The cause was referred to the master in chancery to take proofs and report the same, together with his conclusions thereon. After a portion of the testimony had been taken, the appellant on October 9, 1916, obtained leave to and filed an amended answer and intervening petition, averring that on June 11 and October 14, 1914, at the instance and request of the owners, it had supplied and applied on said buildings extra material and labor amounting to $49.13, making a total due it of $968.99, for which it was entitled to a lien.

The master in his report found that the' total amount of appellant’s claim was $816.37 as originally presented, and was due from Edmondson May 28, 1914; that the payments by the owners to the contractor were regular and complied with the Mechanics’ Liens Act, and that the two items of June 11 and October 14, 1914, were no part of the contract between appellant and Edmondson; that the intervening petition having been filed more than 4 months after the final payment became due, the appellant had not established its lien against the premises; and that the petition should be dismissed at the cost of the petitioner; and a decree was entered approving the master’s report and dismissing appellant’s petition, from which this appeal is prosecuted.

The appellant seeks to reverse this decree, and contends that the 4 months’ period, in which to commence , suit to enforce lien, was extended by furnishing the two items of work and material at" the request of the owners June 11 and October 14, 1914, and that the limitation period should be computed from October 14, 1914.

The doing of work or furnishing of materials gives merely an inchoate lien or right to acquire a lien, and the statute prescribes the steps to be taken to perfect the lien.

The Mechanics’ Liens Act provides for two classes of liens, one to contractors and one as to subcontractors and materialmen, with two distinct methods of enforcing these liens. A contractor is defined in section 1 (J. & A. ft 7139) as any one contracting directly with the owner or his agent, while a subcontractor is defined in section 21 (J. & A. 7159) to be a person who shall furnish materials, services or labor for the contractor. Section 33 (J. & A. 7171) provides that petition shall be filed or suit commenced to enforce the lien created by sections 21 and 22 (J. & A. 7159, 7160) of the Act within 4 months after the time that the final payment is due the subcontractor or laborer, or the party furnishing material

The Supreme Court has emphasized' the doctrine that a mechanic’s or materialman’s lien is a secret one, existing only by statutes which are in derogation of the common law, and opposed to common law, and opposed to common right, and therefore are always to be construed strictly. The lien is a cumulative remedy, and to deny it does not deprive a party of the right to a recovery upon his contract in the usual way. (M. Pugh Co. v. Wallace, 198 Ill. 430; Joseph N. Eisendrath Co. v. Gebhardt, 222 Ill. 114.)

In Galloy v. Sparrow, 166 Ill. App. 200, the court holds concerning the same' point here involved that:

“Section 9 of the Mechanics’ Liens Act, hereinbefore described, provides that original contractors, may, within 2 years after the completion of the contract, file a bill to enforce a lien. * * * A further provision is that ‘such suit shall be commenced or answer filed within 2 years after the completion of the contract. ’ .

“Section 28 of the saíne Act provides that a subcontractor, such as the appellant, ‘may file his petition and enforce his lien as hereinbefore provided for the contractor in sections 9 to 20, inclusive, of this Act, except as to the time within which suit shall be brought.’ And section 33, as before indicated, makes that time ‘4 months after the time that the final payment is due the subcontractor. ’ ”

There is no dispute about the fact that appellant failed to file its petition to enforce the lien claimed, within 4 months from the date of the last delivery of material and labor to the contractor, which was May 25, 1914; but it contends that inasmuch as the owners declared a default as to the general contractor, and thereafter undertook to and did complete the building themselves, and that afterwards, on June 11 and October 14, 1914, the appellee had, through the chairman of its building committee, ordered other1 work and materials from appellant, such orders in legal effect eonstituted additional and extra material and labor, within the meaning of the statute; and extended the time limit for the commencement of its action to enforce its lien.

It is true, where work or material is, in good faith, furnished at the request and with the knowledge of the owner, to remedy defects in the original work, and not done for the purpose of reviving a lien which had been lost, that this is sufficient to establish a new period from which the time for filing notice or claim of a lien is to be computed. (St. Louis Nat. Stock Yards v. O’Reilly, 85 Ill. 554.)

But the proof here shows that the two items were furnished at the request of the owners, and charged to the owners, and bills for the same were presented by appellant to the owners; and that they were not for repair work done in connection with its original contract of the contractor.

It is urged by appellant that the owners having failed to require from the contractor the statement provided for in section 5 of the Mechanics ’ Liens Act (J. & A. 7143), before making any payments to the contractor, that they were barred thereafter from asserting that they had been compelled to pay more than the original contract price to complete the work, as a defense to the claim for lien of the appellant, even though they did require and receive the contractor’s statements subsequent thereto.

This point has been decided adversely to appellant’s contention by the Supreme Court recently in the case of Knickerbocker Ice Co. v. Halsey Bros. Co., 262 Ill. 241. The court there says:

“Appellant contends that this section contemplates but one sworn statement to be given the owner by the contractor, and that after this statement has been given, the owner must at all times, at his peril, retain a sufficient sum to pay all subbontractors the amounts shown by such statement to be due and to become due. Appellee, on the other hand, contends, and the Superior and Appellate Courts have held, that this section authorizes the owner to make payments to the contractor, from time to time, upon sworn statements being furnished by the contractor showing the amounts due and to become due subcontractors, and that the -owner will be protected in making payments to the contractor upon such statements unless he has notice that the statements are false. The contention of ap- . pellant cannot be sustained. Said section 5 does not expressly limit a contractor to one sworn statement to be made to the owner; and from a consideration of the various provisions of the whole act, such a construction cannot fairly be given to this section. When a contractor makes his sworn statement, either voluntarily or at the request of the owner, at the time the first payment is due under his contract, he makes it in accordance with the conditions as they then exist. Those conditions may change before a second payment becomes due. ’ ’

In the case of Berkshire Warehouse Co. v. Hilger & Co., 268 Ill. 463, the facts are very similar to the case at bar. It was there urged that the violation of the statute by the making of payments without requiring the statement of the contractor cannot subsequently be corrected by any act of the owner, but the court held that:

“It would be a most unreasonable construction of this statute to hold that if any mistake as to following the technical provisions of the statute were made by the owner before paying out money he could never after protect himself against such mistake in future payments in the subsequent statements required of the contractor. The reasoning of this court in Knickerbocker Ice Co. v. Halsey Bros. Co., supra, is not in harmony with any such construction of,this statute. The benefit of requiring statements from the contractor from time to time, as the conditions of the work changed, would be practically nullified by upholding the contention of counsel for appellant on this question.”

Upon the abandonment of the contract by Edmond-son, the contractor, the owners completed the buildings according to the contract, and in so doing expended more money than would have been in their hands if they had complied strictly with the statuté as to statements, and were compelled to spend considerably more than the original contract price.

Section 21 (J. & A. 7159) provides that in no case shall the owner be compelled to pay a greater sum for or on account of the completion of such building than the price or sum stipulated in the original contract, unless payment be made to the contractor in violation of the rights and interests of the persons intended to be benefited by this act. In the early case of Biggs v. Clapp, 74 Ill. 335, a similar provision of the statute was construed in this way:

“The language of the statute is obvious. In no case shall the owner be required to pay for or on account of such building a greater sum than the original contract price.

“In this case -appellees have been compelled, in the completion of their building, to pay between $500 and $1,000 more than the original contract price, and yet appellants insist they shall still pay more.

“The position assumed is not just, neither can it be sustained under a fair construction of the statute.”

The right to a lien cannot be made to depend alone upon the omission of the owner to do or perform the duty imposed upon him by statute. (Brennan v. Willliam, P. McEvoy & Co., 196 Ill. App. 336.) The sections of the statute referred to relate in no way to the provisions as to limitations in other sections, upon which the rights of subcontractors to a lien depend.

We are of opinion that there was no error in dismissing appellant’s petition, and the decree is affirmed.

Affirmed.


author: Mr. Presiding Justice Carnes

text:
    R. A. Gross, Appellant, v. Estate of Thomas H. Thornson, Appellee.
    Gen. No. 6,426.
    1. Executors and administrators, § 209

      —When claim for part purchase price of land is properly disallowed. Where a note was given by decedent as part payment for certain land under a contract of purchase and was filed before it became due as a claim against his estate, held that such claim was properly disallowed by the Probate Court, under section 111 of the Administration Act (J. & A. IT 160), providing that where a decedent is seized of a legal or equitable title to real estate, the payment whereof has not been completed and the estate is unable to make complete payment therefor with advantage to the estate, the real estate may be sold and the proceeds held as asset's, where the court found the purchase could not be completed with advantage to the estate and without prejudice to the creditors and heirs.
    2. Payment, § 6*—when note constitutes. A promissory note, so long as it remains in the hands of the payee, is not treated as payment of the debt or claim unless it is so expressed or understood, but it may be given and accepted as payment and operate to create a new indebtedness based on the consideration of the old one.
    3. Payment, § 6*—when note does not constitute. Where a decedent died before the maturity of a note given by him under a contract for the purchase of certain real estate as part payment of the purchase price, and the note was filed as a claim against his estate, held that the court did not err in not treating the note as a payment made at the time it was given and in treating it as only evidencing a payment for land yet to be made.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 23, 1917.

      Browne & Wiley and McDougall & Chapman, for appellant.
    A. A. Clapsaddle and H. M. Kelly, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

September 8,1913, Thomas H. Thomson, then a resident of La Salle county, but since deceased, entered into a written contract with B. A. Gross, the appellant, to purchase 160 acres of land in McHenry county, Illinois, and pay $31,980 therefor. Three hundred dollars were paid in cash, $4,800 by conveyance from Thomson to Gross of 160 acres of land in Texas, and Thomson gave his promissory note due March 30, 1914, for $2,000. These three sums, aggregating $7,100, were termed earnest money payments. There were provisions for payment of the balance at different future times and for execution of a deed by Gross similar to those commonly found in such contracts.

Thomson died intestate December 23, 1913. Letters of administration issued, and it developed that without taking into account this transaction he had a gross estate of $23,252.38, which was reduced by the payment of claims and expenses to a net estate of $15,132.63. Gross filed said $2,000 note as a claim against the estate February 20, 1914. The probate judge found that the note was part of a contract for the purchase' of real estate only partly paid for; that complete payment could not he made with advantage to the estate and could not be made without prejudice to the creditors and heirs of the estate; and ordered that the administrator should not complete the payment of the purchase money out of the proceeds of personal property of the estate, and disallowed the claim. Gross appealed to the Circuit Court. On a jury trial the evidence showed the facts as before stated. The court refused evidence offered by the defendant tending to show that the land was at the time of the trial of much less market value than that expressed in the contract, and other evidence that Gross had executed conveyances of his interest in the land to other parties; and directed a verdict for the defendant on which judgment was entered, from which this appeal is prosecuted.

Thomson would have been liable .on the note had he lived, and a suit might have been successfully prosecuted by its payee after its maturity. The claim was filed before that date, but if treated simply as a promissory note that was warranted under statutory provisions for presentation of claims not due.

The decision of the Probate Court as shown by its finding was based on the construction of section 111 of our Administration Act (J. & A. ft 160, Hurd’s Eev. St. p. 29) in Miskimen v. Culbertson, 162 Ill. 236, which seems to be to the effect that a vendor cannot in case of death of the vendee before full payment is made enforce the contract to pay for the land; that the statute injects an option to comply with its terms or not as may be advantageous for the estate of the deceased. The statute by its terms is not confined to equitable titles like the one. here under consideration, but seems to apply equally to legal titles to real estate not fully paid for at the time of the death of the grantee. It reads as follows:

“In all cases where a decedent is seized of a legal or equitable title to real estate, the payment whereof has not been completed, and the estate of such decedent is unable to make complete payment therefor, with advantage to such estate, the administrator or executor may sell or dispose of such real estate upon the order of the county court, and the money arising from such sales shall be assets in the hands of such executor or administrator, as in other cases. But in all cases where the estate of any such decedent shall be solvent, and such lands as aforesaid may be paid for without prejudice to the creditors, heirs and devisees of the estate, the executor or administrator shall complete the payment for the same out of the proceeds of the personal property, in the name óf the heirs or legal representatives of the decedent entitled thereto; and he shall he allowed a credit for the amount of such payments, and all reasonable expenses incurred in making the same, upon final settlement of such estate; Provided, that the provisions of this section shall, in no wise, interfere with the provisions of any last will or testament.”

It is the Act of 1845; which related to incomplete purchase of public lands rewritten and extended to all cases of incomplete purchase of lands. While constitutional questions cannot be raised and determined in this court, we might in the absence of controlling authority consider whether the statute should receive a construction that would raise a question of the power of the Legislature to interfere with that right of contract which is a necessary incident of the right of property. The Appellate Court of the First District in 1881 (Justices McAllister, Bailey and Wilson), speaking through Mr. Justice Wilson, in Vail v. Drexel, 9 Ill. App. 439, said on page 451: “It [the statute] gives no new remedy to the vendor of land, and by no proper construction can it be held to take away any he had before its passage.” But later the Supreme Court in Miskimen v. Culbertson, supra, in passing upon a claim arising under a contract like the one in question here, affirmed a judgment disallowing the claim on the ground that the statute prohibited the vendor from having his claim allowed if the estate is unable to make complete payment on the contract to its advantage, and said on page 240 whether the payment can be so made is a matter for the Probate Court to determine, and that such construction of the statute “will do no injustice to the vendor where the payments are not due, and at the same time afford protection to small estates”; that the vendor holds the land and is thus protected from loss. This reasoning must rest on the assumption that the vendor will always exact sufficient payment in advance to protect him in what gain he may have secured by an advantageous bargain, or from lo.ss that he might sustain by depreciation in market values. It is an innovation on the principles governing the right to contract and the obligation of a party to perform his agreements that has no parallel in any reported case that counsel have cited or that we are able to find. The two cases above mentioned seem to he the only Illinois authorities on the question; therefore we think the Probate Court did not err in its construction of the statute, and hold that the Circuit Court did not err so far as that statute governs in the judgment appealed from. (

As before stated, the note here in question was given as part payment of the purchase price. Appellant contends that as to that note the land was to that extent paid for. It is familiar law that a promissory note so long as it remains in the hands of thé payee is not treated as payment of a debt or claim unless it is so expressed or understood, but that it may he given and accepted as payment and operate to create a new indebtedness based on the consideration of the old one. There is much force in the contention that this note should be so treated, thereby removing all question of the construction of section 111 of the Administration Act (J. & A. If 160). If the note had been assigned before due, we suppose it should have been allowed in favor of the assignee; but it remained unassigned, the property of appellant. We are inclined to the opinion that Thomas H. Thomson, had he lived, could not have compelled a conveyance of the land by Gross without paying that note, and that for the purposes of this suit the note must be held as evidencing a payment for land yet to be made at the time of Thomson’s death; therefore the court did not err in not treating it as a payment made at the time it was given. Finding no error in the record the judgment must be affirmed.

A certificate of importance and appeal will be granted, if desired.

Affirmed.


text:
    Charlotte Miller, Appellant, v. Phillip McElin et al., Appellees.
    Gen. No. 6,432.
    1. Landlord and tenant, § 259

      —When question for fury Whether damage from water due to leak in frozen pipes on premises. Evidence that a water leak whereby plaintiff’s goods were injured came from the freezing of pipes in the room leased by defendants as co-tenants, held sufficient to submit that question to the jury, if it was controlling, in an action to recover damages for such injury.
    2. Landlord and tenant—what is right of lessees to put another in possession and free themselves from liability for his negligence. Defendants as lessees under a certain written lease, held to he the owners of the leasehold interest and entitled as such, as to third persons and the public generally, to put somebody else in possession, control and occupancy as tenant and free themselves from liability for his negligence on the same principle and to the same extent that any owner of an interest in land may in that manner do.
    3. Landlord and tenant—what is liability of tenant for negligent use of premises. A tenant entitled to the possession and control of the leased premises is liable for the negligent use of such premises, resulting in injury to other tenants.
    4. Clubs, § 2*—when officers of club are not liable for negligent use of rented premises by society. Where defendants as lessees of certain premises signed the lease as managers of a certain local order of an unincorporated society which had no officers of such-designation and in which neither defendant held any office, charging him with any duty to care for the leased premises, a room, which the lease provided should be used for lodge or club purposes only, and which was so used by the order and was paid for out of its funds by its treasurer, one of defendants, held that the defendants were not liable for a negligent use of the premises by the order not shown to have been participated in by them personally, notwithstanding they were members thereof.
    5. Clubs—right to rent property. An unincorporated club may occupy and control property as tenant.
    Appeal from the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 23, 1917.
    C. M. Walter and R. E. Eaton, for appellant.
    F. J. Stransky, for appellees.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

A stock of millinery goods belonging to appellant, Charlotte Miller, was, in January, 1916, materially damaged by water leaking into her apartments because of the parting of a pipe in a room on the floor above. On the assumption that the three appellees were tenants of the room and owed her a duty to properly care for said pipe and negligently permitted it to freeze and therefore pull apart, she brought this action on the case against them. At the close of plaintiff’s evidence the court directed a verdict for the defendants, upon which judgment was entered.

It is claimed by appellees that the verdict was properly directed because they say it conclusively appears from the evidence that the pipe did not pull apart from freezing in the room where it was located, but the break was occasioned by the operation of a plumber in an adjoining room using a blow pipe to- thaw ice in the pipe there and in that way heating the water and causing steam pressure that parted the joint in question. We think there was sufficient evidence tending to prove that the trouble came from freezing in the room to require the submission of that question, if it was controlling, to the jury.

Appellees also claim that they were charged with no duty to take care of the pipe or keep it from freezing, and that it affirmatively appeared that they were not in the control and occupancy of the premises and were under no obligation to take care of them. The disposition of this case depends upon the answer to this contention.

The evidence showed that the room was and for more than two years had been occupied and controlled by the Knights of Columbus, a club not incorporated; that Lucinda Pulford and Pearl B. Shaw- were the owners and caused the plumbing to be installed in a proper manner; that appellees were members of the club in January, 1914, and acquired a leasehold interest in the premises for two years under a written lease from the owners. It provided that the premises should be used for lodge and club purposes only, and added to appellees’ signatures were the words: “Managers for the local order of the Knights of Columbus.” But the proof was that they were not in fact managers of that order; that it had no officers of that designation, and that neither of them held any office charging him with any duty to take care of the premises. McEIin was treasurer and paid the rent from moneys of the club in his hands; but it affirmatively appears that the office imposed no duty to care for the room. Appellee acquired this leasehold interest because the owners objected to dealing directly with the order. They became bound to fulfil obligations imposed in their title paper as they would have been had the purchase been of an estate for life or in fee. As to third persons and the public generally, they, as owners of the term, could put somebody else in possession, control and occupancy as tenant and free themselves from liability for his negligence on the same principle and to the same extent that any owner of an interest in land may in that manner do. Appellant well says that appellees’ interest was personal, and the words added to their signatures were merely descripiio persones. She also says where the landlord has leased the premises' from which the overflow originated, the tenant, being the one entitled to possession and control, is liable for the negligent use of such premises, citing Chicago Tel. Co. v. Commercial Union Assur. Co., 131 Ill. App. 248, and Lederer v. Fox, 151 Ill. App. 300. This is a correct statement of law applied to negligence in caring for a water pipe and to many other acts of negligence of tenants as will appear by reference to Thompson on Negligence (2nd Ed.), sec. 1154 et seq. It applies not only as between the owner of the fee and his tenant but also to subletting, notwithstanding a contract duty of the sublessor to his landlord to keep the premises in repair. Id. 1161. The owner is not liable for nuisances created during the term of the lease. Id. 1162. It is not a question of title but of legal occupancy and control. Id. 1166. If appellees had put some other man in possession as a tenant it would hardly be conceived that because they were owners of an estate for years they were more liable than if they had owned the fee. We see no difference in principle. The Knights of Columbus were a club unincorporated, of a character treated in 7 Cyc. 258 et seq. Like other voluntary associations, while they may not be able to contract as such, the law recognizes them and protects, them in the possession of property; and it is said liability cannot be fastened upon individual members except by reason of the acts of the individuals themselves, or their agents. 7 Cyc. 261. It is a matter of common knowledge that clubs and associations are numerous in this country, often with large memberships, and usually with some room or building leased or purchased in which they hold their meetings. Instances may be imagined where the owner of premises lets entirely irresponsible persons not liable for torts—young children, for instance—into possession. We presume such owner, whether in fee, for life, or for years, might then be held respon- ■ sible for negligence of the occupant. But we know of no authority, and do not think it reasonable, that an owner letting an unincorporated hunting club, golf club or religious society into exclusive possession'and control of land should be held liable for the negligent acts of such occupant causing damage to third persons ; neither do we know of any law that charges a member of such a club with responsibility for its torts without proof that in some way he was individually charged with a duty other than his mere membership might imply. A form of popular subscription to charities makes every donor a member of the association. We presume he does not from that fact alone become responsible for negligence of the club, order or association in building or not building fires in the room it occupies. It may be difficult to fix and enforce liability for negligence in such eases, but that affords no reason for imposing it on the owner who let the club into occupancy and control of the premises.

We conclude that the club must be considered as an organization capable of occupying and controlling property. And it appearing without dispute that appellees were not in occupancy or control of the premises, that the club occupied that position, and that appellees as members of the club had neither been charged with nor undertaken a duty to care for the room, it follows that they were guilty of no violation of duty to the plaintiff, and therefore the court did not err in directing a verdict for the defendants. The judgment is affirmed.

Affirmed.


author: Mr. Justice Dibell

text:
    John C. Stires et al., Appellees, v. Augustus E. Kindell et al. John S. Kindell et al., Appellants.
    Gen. No. 6,421.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Pleading, § 89

      —when plea in bar is bad as to all defendants. A plea by all the defendants praying a judgment in bar as to all, but in the body thereof conceding that the plaintiff was entitled to judgment against one, held bad, on demurrer, both as to the de-' fendant against whom plaintiff was conceded to be entitled to judgment, and as to all defendants, regardless of the question of the
    2. Appeal and ebbob, § 1327*—what presumed in absence of bill of exceptions. In the absence of a bill of exceptions a judgment will be presumed to be justified by the pleadings upon which issue was joined. ' 3
    Appeal from the Circuit Court of Ogle county; the Hon. Richabd S. Fabrand, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 23, 1917.
    Statement of the Case.
    Action by John C. Stires and others, plaintiffs, as assignees of notes, to recover on such notes against Augustus E. Kindell and John S. Kindell and others, defendants, the maker’s devisees and executrix, under the statute of frauds' and perjuries, From a judgment for plaintiffs for $556.14 and also of guando acciderint as to the executrix, all defendants except Augustus E. Kindell, appeal, the executrix appealing only in her right as a devisee.
    Lyman Dexter and Frank E. Reed, for appellants.
    Henry A. Smith, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.


author: Per Curiam.

text:
    Wilhelmina Frerichs, Appellant, v. Hayung E. Frerichs, Appellee.
    Gen. No. 6,527.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeai, and bbbob, § 278

      —when order sustaining demurrer is not appealable. An order sustaining a demurrer to a bill is not appeal-able in the absence of a decree, and the appeal is dismissed.
    Appeal from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1917.
    Appeal dismissed.
    Opinion filed November 8, 1917.
    Statement of the Case.
    Bill by Wilhelmina Frerichs, complainant, against Hayung E. Frerichs, defendant, for divorce. From an order sustaining a demurrer to an amended bill of complaint, complainant appeals.
    E. F. Riely and W. L. Ellwood, for appellant.
    Thomas Kennedy and Barnes, Magoon & Black, for appellee.

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

   Per Curiam.


text:
    Henry Strohmeyer, Appellee, v. William Jamison, Appellant.
    Gen. No. 6,468.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1410

      —when verdict is not against manifest weight of evidence. A verdict held not against the manifest weight of the evidence, in an action to recover for work done by piaintiff in building a porch and making other improvements for defendant.
    2. Appeal and error, § 1236*—when defendant estopped to urge error in admission of evidence. Defendant was estopped to urge error as to the admission of a certain hook account in evidence, that it was not entitled to he admitted or considered as such account, where it appeared defendant had withdrawn objection to its admission at the end of the trial and let it go to the jury.
    3. Appeal and error, § 1535*—when instruction on determination of preponderance of evidence is not reversibly erroneous. An instruction as to determining the preponderance of the evidence which omitted the number of witnesses as a factor after telling the jury that the preponderance does not necessarily depend upon the number, was erroneous, but not reversible error where the question was unimportant.

      Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed November 22, 1917.
    Statement of the Case. - -
    Action Tby Henry Strohmeyer, plaintiff, against William Jamison, defendant, to recover a balance due for building a porch and making other improvements. From a judgment for plaintiff for $206.06, defendant appeals.
    McDougall & Chapman, for appellant.
    Browne & Wiley, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Daisy Benson, Administratrix, Appellee, v. Chicago City Railway Company et al., Appellants.
    Gen. No. 6,455-6,467.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed November 28, 1917.
    Statement of the Case.
    Action by Daisy Benson, administratrix of the estate of Martin L. Benson, deceased, plaintiff, against Chicago City Railway Company, Chicago Railways Company, Calumet & South Chicago Railway Company and the Southern Street Railway Company, corporations, operating as Chicago Surface Lines, and Consumers Company, a corporation, defendants, to recover damages for the death of plaintiff’s intestate from injuries received in a street car collision. From a judgment for plaintiff for $10,000, defendants separately appeal, appeals being consolidated.
    Franklin B. Hussey and Charles Le Roy Brown, for appellants Chicago Surface Lines; John R. Guilliams, of counsel.
    Cooke, Pope & Pope and Zimmerman, Garrett & Rundall, for appellant Consumers Company.

      Abstract of the Decision.
    1. Cabbiebs, § 476

      —when evidence shows negligence of motorman and driver of wagon colliding. In an action by a street car passenger for injuries, received in a collision between the street car and a wagon, evidence held sufficient to warrant a finding that both defendants were negligent and that the collision between their street car and wagon whereby plaintiff’s intestate was injured was due to the concurrent negligence of both, the driver of the wagon being negligent in driving on the car track on which the street car was approaching, which he saw and knew was coming, and the motorman in not stopping his car in sufficient time to avoid the collision after he had seen the wagon on the track.
    2. Cabbiebs, § 489*—when instruction on right of driver of wagon to drive on track is correct. In an action by a street car passenger against a street railroad company and the owner of a wagon to recover for injuries received in a collision, an instruction to the effect that the defendant’s driver had the right to drive upon the street car tracks if in driving upon the same he was in the exercise of ordinary care for the safety of the person and property of others, held to be correct.
    3. Cabbiebs, § 489*—when instruction on negligence of driver of wagon in driving on track is correct. In an action by a street car passenger against a street railroad company and the owner of a wagon to recover for injuries sustained in a collision, an instruction to the effect that the mere driving of a horse and wagon northward on the southbound tracks of a street railway was not negligence as a matter of law, but that the question of negligence involved under such circumstances was one of fact for the jury to decide from all the evidence in the case, held to be correct.
    4. Cabbiebs, § 489*—when instructions on negligence of driver of wagon in driving'on car tracks are not conflicting. An instruction to the effect that the mere driving of a horse and wagon northward on the southbound track of a street railway was not negligence as a matter of law, but that the question of negligence under such circumstances was one of fact for the jury, held not to conflict with an instruction that if the jury believed from the evidence that, as a matter of fact, the driver violated a city ordinance by so driving and that such violation was the sole proximate cause of the injury in question, the violation was prima facie negligence.

      Ralph J. Dady and Morse Ives, for appellee.

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

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

5. Instructions, § 41 —when instruction on functions of jury is proper. An instruction that the jury are to judge questions of fact under the instructions of the court and from the evidence in the case is proper, notwithstanding it also tells the jury they were the sole judges of questions of fact.

6. Appeal and error, § 450*-—when error concerning the admission of evidence may not he complained of. A party is not in position to raise on appeal any question of error concerning the admission of evidence not objected to when it was introduced on the trial.

7. Carriers, § 489*—when instruction on superior right of way of street car over other vehicles is immaterial. An instruction that a street railway company has a superior right of way over other vehicles concerning that portion of the street occupied by its tracks at points other than street intersections, had no material effect upon the real issue presented, in an action against the company and the owner of a wagon to recover damages for death of a passenger in the street car, due to a collision between the company’s street car and the wagon.

8. Appeal and error, § 1544*—when giving of erroneous instruction is harmless error as to codefendant. In an action by a passenger in a street car against the railroad company and the owner of a wagon to recover for injuries received in a collision, the giving of an instruction at the instance of one defendant presenting his version of the case but not that of the plaintiff upon which he claimed a right of recovery, either under his allegations or proof, was not reversible error as to a codefendant, if erroneous, and did not militate against plaintiff’s right of recovery.

9. Death, § 48*—when evidence as to teaching given children hy decedent is admissible. Evidence that plaintiff’s decedent taught his children obedience and courtesy and to be industrious, and that he taught them the Lord’s Prayer, was competent on the question of damages, in an action to recover, damages for personal injuries resulting in death of the decedent.

10. Death, § 67*—when verdict is not excessive. A judgment for $10,000 for death held not excessive, where plaintiff’s intestate was 35 years old at time of death, in good health, and a man of industrious and frugal habits, earning regularly $72 a month as elevator operator and extra money by odd jobs as plumber, and devoting his earnings to the support of his wife and two children and payment for a home, and who looked to the education and religious and moral training of his children.

11. Death, § 48 —what damages are recoverable for death of father and husband. Damages are allowable, in an action to recover same for death due to negligence, which are sufficient to fully compensate for the pecuniary loss sustained by the decedent’s wife and children in consequence of his death, and in such sum as he would probably have earned by his intellectual or bodily labor at his business, profession or trade during the residue of his probable life and which would have gone for the benefit of his wife and children.

12. Death, § 48*—what considered as elements of pecuniary damage in estimating damages for negligent. In estimating damages, recoverable on account of death from negligence, the decedent’s age, business capacity, ability and disposition to labor .and his habits of living, and in addition thereto the value of a father’s services in his attention to and superintendence of his children and family and in their education, of which they are deprived by his death, may be considered as elements of pecuniary damage.

13. Death, § 67*—when damages for negligent not excessive on ground alone of loss of benefit of earnings of decedent. A judgment for $10,000 held not excessive on the ground alone of the loss of the benefit of the earnings of decedent during the probable period of his life, in an action to recover damages for the death from negligence of a man 35 years old, in good health, of industrious and frugal habits, earning regularly $72 a month and extra money by odd jobs as plumber, which were devoted to the support of his wife and' two children and payment for a home.