text:
    A. L. Jones Company, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 24,596.
    1. Public utilities, § 7

      —when finding that rate is excessive and fixing lower rate inures to benefit of other shippers. A finding by the State Railroad and Warehouse Commission, in a proceeding brought by a shipper, that a certain transportation rate is excessive, and fixing a lower rate, is general in operation and inures to the benefit of every other shipper similarly situated without also going before the Commission and having the rate declared illegal.
    2. Public utilities, § 7

      —what is effect of act on right of shipper to recover amount charged in excess of legal rate. The Public Utilities Act does not preclude a shipper who has been charged an excessive rate from maintaining a common-law action to recover the amount paid in excess of the legal rate.
    3. Public utilities, § 7

      —when presumed commission knew it was fixing maximum rate. The court will presume that, in fixing a transportation rate between two certain points, the Railroad and Warehouse Commission knew it was fixing the maximum rate that could be charged to an intermediate station, under section 25 of the Railroad and Warehouse Commission Act (J. & A. If 8952).
    4. Public utilities, § 7

      —fixed rate as maximum rate. A rate for transportation fixed between certain points by the Railroad and Warehouse Commission is the maximum that the carrier may charge between any intermediate points.
    5. Cabbiebs, § 212

      —what is basis for maintenance of action to recover excess charges. An action by a shipper for an amount charged by a carrier in excess of the legal rate is maintainable upon the theory that defendant has money which, in right and justice, belongs to plaintiff and which it ought to restore.
    6. Cabbiebs, § 212

      —what limitation statute applicable to action to recover excess charges. The 5-Year Limitation Statute (J. & A. f 7210) is applicable to an action by a shipper for recovery of excess paid for transportation.
    7. Cabbiebs, § 212

      —what limitation statute not applicable to action to recover excess charges. The 2-Year Limitation provided in section 72 of the Public Utilities Act [Callaghan’s 1916 St. Supp. f 8686(87)] does not apply to a common-law action to recover the excess over the legal rate charged by a carrier, the 5-year limitation (J. & A. If 7210) being applicable in such case.

      Appeal from the Municipal Court of Chicago; the Hon. Joseph Z. Uhhb, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed March 10, 1919.
    O. W. Dynes and J. N. Davis, for appellant; H. H. Field, of counsel.
    Gallagher, Kohlsaat & Binaker, for appellee; E. B. "Wilkinson, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of $710.12 against defendant on a trial before the court without a jury. The action was brought to recover the excess between 25 cents and 40 cents per ton for the transportation of manure from Galewood to Morton Grove and from Galewood to Edgebrook in the 'State of Illinois.

October 25,1913, the Bailroad and Warehouse Commission of Illinois made a finding that the rate of 40 cents per ton for transportation of manure between Galewood and Morton Grove was unreasonable, and entered the following order:

“It is therefore ordered, adjudged and decreed by the Commission that the said rate of 40 cents per net ton *' * * between Galewood and Morton Grove be and the same is hereby reduced and fixed at a charge of not to exceed * * * 25 cents per net ton on manure from Galewood to Morton Grove, and the defendant, Chicago, Milwaukee & St. Paul Bailway Company, is hereby directed to cease and desist from asking any greater charge than hereinabove specified on movements of * * * manure from Galewood to Morton Grove, the Commission finding that the charge herein made and specified is a reasonable charge therefor.” Q

After the passing of that order defendant still continued to charge the unreasonable rate as above and exacted the same of plaintiff to the amount which it recovered in this suit.

! The foregoing order establishing a 25-cent tonnage rate was entered by the Railroad and Warehouse Commission in a case entitled in its name ex rel. Foehlmann Bros. v. defendant and others. Defendant prosecuted an appeal from this order to the Circuit Court of Sangamon county, where it was affirmed. Thereupon it prosecuted a further appeal to the Supreme Court, where the order was again affirmed. Chicago, M. & St. P. Ry. Co. v. State Public Utilities Commission of Illinois] 268 Ill. 49. A final appeal was then taken to the Supreme Court of the United States, where the judgment of our Supreme Court was affirmed in 242 U. S. 333.

Defendant continued, notwithstanding the order and decisions thereon, to charge the unreasonable rate until January 27, 1917, when it issued a supplement to its tariffs, effective March 1, 1917, making a rate in compliance with the order of the Commission.

Defendant urges for reversal that the published rate of defendant controls, notwithstanding the order of the Railroad and Warehouse Commission establishing a 25-cent ton rate, and further, that as the order as to rate was entered in the “Poehlmann Bros, case,” the rate was fixed for that company and none other; that plaintiff could not maintain its action without obtaining an order from the Public Utilities Commission of the State finding the rates paid unreasonable, and that the court erred in holding that the 5-Tear 'Statute of Limitations applied and in not holding that the 2-Tear Statute was invocable.

The order fixing the 25-cent ton rate, having been upheld by the Supreme Court of the United States is not now open to further challenge; but it is contended that this order affects no one but the Poehlmann Bros. Co., and that the rhte fixed affected it only. A. J. Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S. 662, disposes of this question adversely to defendant’s contention, and the oourt answering the proposition that “as the plaintiff was not a party before the Commission, the defendants insist that it cannot take advantage of the order that the rate was unjust, so as to be able to maintain the present suit,” held that the proceeding before the Commission was not in the nature of private litigation between a lumber association and carriers, “but was a matter of public concern in which the whole body of shippers was interested”; that the finding was general in its operation and inured to the benefit of every person that had been obliged to pay the unjust rate. If this were not so, those who intervened during the hearing would have secured an advantage over the general body of the public, which would have created a preference in favor of the parties to the record and would have destroyed the very uniformity which the Commission had been organized to secure; and that the plaintiff and every other shipper similarly situated was entitled, by appropriate proceedings before the Commission or the courts, to obtain the benefit of that general finding and order.

And so we hold here that the rate fixed by the Railroad and Warehouse Commission, supra, was available to every shipper coming within its provisions and shipping the same kind of freight over the defendant’s line between the points covered by the order.

The contention that before the plaintiff could proceed in an action it must go before the Public Utilities Commission to have the rate charged by defendant declared illegal, is without force. The law does not require a useless thing to be done; Southern Pac. Co. v. California Adjustment Co., 237 Fed. 954.

Section 74 of the Public Utilities Act [Callaghan’s 1916 St. Supp. j[ 8686(89)] provides that “this act shall not have the effect to release or waive any right of action by any * * * person or corporation for any right or penalty which may have arisen or accrued or may hereafter arise or accrue under any law of this State.”

We think it is clear that this provision was not intended to take away any right of action which a shipper might have under any existing laws of the State to recover payments made in excess of the legal rate.

'Section 74 expressly provides that the act shall not have the effect to release or waive any right of action by the State, Commission, or by any body politic or municipal corporation, for any right or penalty which may have arisen or accrued or that thereafter might arise or accrue under the laws of the State.

We think that under the statute the common-law right was preserved to plaintiff to maintain an action for the amount paid in excess of the legal rate.

Again, it is contended that some of the shipments for which excess rate was sought to be recovered were from Galewood to Edgebrook and that a 25-eent ton rate is not applicable between these two points, as the rate fixed was from Galewood to Morton Grove. However, Edgebrook is concededly a station on defendant’s line between Galewood and Morton Grove. In other words, it was a shorter haul than between the points for which the rate was fixed. We must assume that the Commission in fixing the rates between Galewood and Morton Grove knew that it was fixing the maximum rate that could be charged to intermediate stations under section 25 of the Railroad and Warehouse Commission Act (J. & A. ft 8952), which provides as follows:

“That it shall be unlawful for any common carrier subject to the provisions of this Act, to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of like kind of property, for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance, or to charge any greater compensation as a through route than the aggregate of the intermediate rates subject to the provisions of this Act; but this shall not be construed as authorizing any common carrier within the terms of this Act to charge or receive as great compensation for a shorter as for a longer distance. * * *” ¡

Under this act no higher rate could be charged for hauls to stations between the points named. A greater rate is expressly forbidden by section 25, supra. Southern Pac. Co. v. California Adjustment Co., supra.

This action is maintainable upon the theory that defendant has money which in right and justice belongs to plaintiff and which it ought to restore, as it got the money by charging a rate in excess of the lawful rate. Defendant was entitled to the rate fixed and no more, and plaintiff was not in law required to pay more. More having been unlawfully demanded and collected, an action, as in the case at bar, to recover it will lie.

Section 15, ch. 83, Rev. St. (J. & A. ¶ 7210), colloquially known as the 5-Year Limitation Statute, is applicable to the instant action and not the Two-Year Statute, as contended for by defendant. Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, in which the court said:

“The last amended count * * * sought to recover damages for the violation of defendant’s common-law liability as a carrier for charging more than reasonable rates. To this count the Five-Year Statute of Limitation was applicable.”

The 2-Year Limitation provided in section 72 of the Public Utilities Act [J. & A. ¶ 8686(87)] does not apply to this form of action.

There is no error in this record which calls for a reversal of the judgment of the Municipal Court, and it is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Chicago Title & Trust Company, Administrator, Appellant, v. Margaret Louise Kirchner and Greenebaum Safe Deposit Company, Appellees.
    Gen. No. 24,617.
    1. Gifts, § 22

      —when mental capacity of donor and absence of undue influence shown. Evidence in a suit to set aside gifts of personal property, examined and held to show that the donor was, at the time of the gift to her niece, compos mentis and that no undue influence or artifice was resorted to, to persuade her to make the gift.
    2. Gifts, § 27

      —when inference against gift not indulged because of devising clause of will covering personalty. Where it appeared that, subsequent to a gift of her personal property to her niece, deceased executed a will in which she devised both real and personal property, and it also appeared that the lawyer who advised deceased in making the gift also drew the will, the court will presume that, in including a devise of personal property in the will, he was merely acting in an abundance of caution sb that deceased should not die intestate as to any property in case she possessed personalty not included in the prior gift, and no inference against the gift will be indulged because of the devising clause in the will.
    3. Gifts, § 23

      —when gift not revoked by subsequent will. A will made subsequent to a gift either causa mortis or inter vivos does not necessarily operate to revoke such gifts.
    4. Gifts, § 8

      —what is sufficient delivery of money in bank. There was a sufficient delivery of money in a bank to sustain a gift causa mortis, where it was transferred and came into the possession of the donee before the donor’s death.
    - 5. Gifts, § 8

      —what is sufficient delivery of mortgages, notes, etc., in safe deposit box. Property, consisting of mortgages, notes, etc., kept by the owner in a safe deposit box, was delivered, so as to effect a gift causa mortis, where the owner gave the donee a power of attorney and the key and the donee thereby obtained access to the box, took possession of the property and placed it in her own safe deposit box before the death of the donor.
    6. Gifts, § 28

      —when declarations of donor admissible. Declarations of a donor regarding the fact of gifts of property causa mortis were properly received in evidence, as confirmatory of the gifts, in an action to set them aside.

      7. Gifts, § 1

      —what constitutes gift inter vivos. A gift of personal property made in view of the donor’s death and accompanied by actual delivery, though not sustainable as a gift causa mortis, because not made to take effect only in event of the donor’s death by her existing disorder, may be sustained as a gift inter vivos.

    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 10, 1919.
    Frederick A. Bangs, for appellant.
    R W. Clifford, for appellees.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

The hill in this case seeks to set aside gifts of personal property made by Agnes A. Gray, deceased, to her niece, the defendant, Margaret Louise Kirehner. The property given consisted of a balance to the credit of the donor in the Hibernian Banking Association of Chicago amounting to $1,683.68, five notes secured by mortgages, two for $3,000 each, two for $1,500 each and one for $1,650, and certain other moneys and coins. The gifts were made in causa mortis a few days prior to the death of Agnes A. Gray on November 13, 1917. At the time of the gift the deceased was suffering from a mortal sickness and was unable to leave her sick bed to make the transfer of some of the property which was in her safety deposit box in the Continental and Commercial Savings Deposit Company, and for the purpose of enabling the defendant, Margaret Louise Kirehner, to obtain such property from her box she executed a power of attorney to her, in force of which access was obtained to the box and the property therein taken possession of by defendant Kirehner and together with the balance drawn from the Hibernian Bank was by her placed in her safety deposit box, which she rented from the defendant, the Greenebaum Safe Deposit Company. A diamond ring worn by deceased was given to the defendant Kirchner and received by her into her actual possession, although she afterwards placed the same upon the finger of deceased so that she might wear it, which she did until she died, when the ring was removed by the undertaker and redelivered to the defendant Kirchner. At the time of the death of Agnes A. Gray, the defendant Kirchner was in the actual physical possession of all the property now in dispute.

It is sought to set aside these gifts and to recover them from the defendant Kirchner on behalf of the estate of Agnes A. Gray upon the ground of the alleged mental incapacity of the deceased at the time to make a gift or to execute any binding legal contract, and for the further reasons that the said personal property and the power of attorney were obtained from the deceased by the defendant Kirchner by false and fraudulent statements and by undue influence and persuasion by her.

It is alleged in the bill that defendant Kirchner claims to hold title to the property in virtue of a gift which she claims was made by said Agnes A. Gray on November 7, 1917, wherein said Gray said to her, “I give to you all of my personal property and you may go and take possession of the same at once.” An injunction was granted ex parte enjoining defendant Kirchner from disposing' of the property and the defendant Greenebaum Safe Deposit Company from allowing access to the box of the defendant Kirchner, in which said property was contained. Upon a trial before the chancellor the injunction was dissolved and the bill was dismissed for want of equity, from which decree complainant prosecutes this appeal.

The evidence shows that the deceased, Agnes A. Gray, was, at the time of the transactions complained about, a widow 78 years of age, without descendants, and that she left her surviving two sisters, Mrs. Margaret Johnson and Mrs. Sophia Kirchner, and certain children of deceased’s two dead brothers, her next of kin. John. A. McAnrow was the legal adviser of deceased and all that she did in the premises was done under his advice.

November 9, 1917, deceased made her will, in which she gave all her property equally between her sister Sophia Kirchner and her niece, the defendant Margaret Louise Kirchner. It appears that this will has since been admitted to probate in the Probate Court of this county. At the time of the mailing of the gift it was established by the evidence of several credible witnesses that the deceased made the gift absolutely, saying, “I give it to Miss Kirchner absolutely, and I don’t want it or expect it back again”; that her lawyer then told her that she never could get it back again, to which she replied, “That’s the way I want it. She is deserving of it.”

It also appears that deceased and her sister, Margaret Johnson, and other members of the Johnson family had lived together in the house of Agnes A. Gray from 1910 to 1914, and that thereafter their relations were not cordial.

Agnes A. Gray when in the hospital was anxious to have her niece, Margaret Kirchner, come to her. This niece lived with her mother, Sophia Kirchner, in Pittsburgh, Pennsylvania, and at the written request of Mrs. Gray she came to Chicago and was with her from that time until the death of Mrs. Gray. Subsequently Sophia Kirchner, Margaret’s mother, came to Chicago from Pittsburgh and was with her sister, Mrs. Gray, until the time of her death. In the first instance it therefore appears that the Kirchners did not impose themselves upon Mrs. Gray, but that Margaret came to her from Pittsburgh at deceased’s insistance and request.

An examination of the evidence convinces us that its preponderance proves that Agnes A, Gray at the time of the making of the gift of personal property to her niece in dispute was compos mentis, and that no undue influence or artifice was resorted to by defendant Kirchner nor any one else to persuade her to make the gift, and that the whole transaction was in accord with the conscious wish and desire of Mrs. Cray. While Mrs. Cray was mortally ill and suffering from an incurable disease, she at all times knew what she was doing and understood the nature and quality of her act. She knew that she was giving her personal property absolutely to her niece Margaret and in so doing was ignoring her sister, Margaret Johnson, and the law gave her the right to have her wishes carried into effect and this she did in a manner which the law approves as sufficient for that purpose. There is nothing that we can find in the evidence warranting a conclusion that at the time of the transaction in question Mrs. Cray’s mind was not clear and that what she did was not in the exercise of her own free will at a time when she was mentally capable of understanding all that she did. Furthermore, as Margaret Johnson had no legal claim upon the property of her sister, Mrs. Cray, the latter was free to make such disposition of it as she might see fit, either by gifts causa mortis, inter vivos or by will.

It is contended that because subsequent to the gift deceased made her will in which she devised both real and personal property, it is therefrom inferable that she intended to revoke the gift and have all of her property pass by her will. The lawyer knew at the time he drew the will of the prior gift of the personal property to testatrix’s niece Margaret, and we will assume that, acting in the abundance of caution and so that Mrs. Cray should not die intestate as to any of her property, he included a devise of personalty in the will to pass any such property which she might not have already given to defendant Kirchner, if any she had.

We do not think that any inference can be indulged against the gift because of the inclusion of the devise of personal property in the will. Furthermore, at the time the will was made the personal property given was in the actual custody and possession of the donee, Margaret Louise Kirchner, and beyond the control of Mrs. Gray. A will made subsequent to a gift either causa mortis or inter vivos does not necessarily operate to revoke such gifts. 1 Williams on Executors (9th Ed.), 691.

We think the delivery of the property in question was, as a matter of law, complete under the method adopted in its transfer. The money in the bank was transferred and came into the possession of the donee. The other property, mortgages, notes, etc., were in a safe deposit box of Mrs. Gray and, under a power of attorney with the delivery of the key by Mrs. Gray to her niece Margaret, access was obtained to the box and defendant Kirchner took possession of the property given and put it all in another safety deposit box of her own, where it was at the time of Mrs. Gray’s death. Under the circumstances this constituted as full and complete a delivery at the time as was possible. Mrs. Gray’s declarations regarding the fact of the gift made to others are confirmatory of her action and were proper to be received, as they were, in evidence. Hagemann v. Hagemann, 204 Ill. 378, is a case in which the delivery of the key to the box containing the note transferred was held to be a good, symbolic delivery, and also that testimony as to declarations of the donor was admissible as evidence.

In Telford v. Patton, 144 Ill. 611, it is held that three requisites are necessary to constitute a donatie causa mortis, viz.: First, the gift must be with a view' to the donor’s death; second, it must have been made to take effect only in the event of the donor’s death by his existing disorder; third, there must be an actual delivery of the subject of the donations. The first and third elements above stated are present in this case, but not the second, for the gift as made was irrevocable. The gift, however, if not conclusively effective as one causa mortis, is abundantly sustained as a gift inter vivos, for as said in the Patton case, supra:

“It is essential to a donation inter vivos that the gift be absolute and irrevocable, that the giver part with all present and future dominion over the property given, that the gift go into effect at once and not at some future time, that there be a delivery of the thing given to the donee, that there be ‘such a change of possession as to put it out of the power of the giver to repossess himself of the thing given.’ (1 Parsons on Contracts, marg. page 234; Dole v. Lincoln, 31 Me. 422; Robinson v. Ring, 72 Me. 140; Northrop v. Hale, 73 Me. 66; Grover v. Grover, 24 Pick. [Mass.] 261). The delivery must be made with the intent to vest the title in the donee. (Jackson v. Twenty-Third St. Ry. Co., 88 N. Y. 520.) As a verbal gift is an executed contract, delivery of the subject-matter of the gift is of the essence of the title. (Grover v. Grover, supra; Wilson v. Keller, 9 Bradw. 347.) ”

We see no reason to disturb the decree of the Circuit Court and it is therefore affirmed.

Affirmed.


text:
    Allen L. Kelly, v. Chicago, Burlington & Quincy Railroad Company, Appellee. David K. Tone, Intervening Petitioner, Appellant.
    Gen. No. 24,671.
    1. Appeal and ebkob, § 273

      —what is an interlocutory, unappealable order. Where a certificate of evidence in a proceeding in which an attorney sought to recover his fee was delivered to him for examination and stolen while in his possession, an order by the court requiring him to produce a copy of such certificate was interlocutory and not appealable.
    2. Appeal and ebkob, § 393

      —when appeal lies from imposition of fine or imprisonment for contempt. While an interlocutory order is not appealable the one to whom it is directed may refuse to obey it and, upon the imposition of a fine or imprisonment for contempt, may then prosecute an appeal.
    Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in this court at the October term, 1918.
    Appeal dismissed.
    Opinion filed March 10, 1919.
    David K. Tone, pro se.

    J. A. Connell, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

David K. Tone, the appellant, is a lawyer practicing at this har. He was the attorney for the plaintiff in the above entitled cause, in which he intervened, which said cause was settled between the parties by the payment to the plaintiff by the defendant company of $6,000. Tone claimed a lien for his fees earned as an attorney under the Attorneys’ Liens Statute of this State, and filed an intervening petition making such claim. On a hearing, Tone proved his claim -under a contract with his client, Kelly, and there was a judgment for $1,200, from which defendant prayed and perfected an appeal to this court.

A certificate of evidence was presented to the trial judge September 28, 1917, in this matter, who so marked the same. Thereupon the certificate of evidence was delivered to Tone for examination. As Tone failed upon request to deliver the certificate of evidence for filing and approval, he was, on motion duly made and an affidavit setting forth the material facts, ruled by the court to produce for approval and filing within 10 days the certificate of evidence. This Tone failed to do, but filed an answer to the rule in which he admitted the receipt of the certificate of evidence, but sought to excuse his failure to produce the same for filing and approval by swearing that he put the certificate of evidence in his grip and put the grip in his automobile and covered the grip with robes; that the said automobile stood on a street in the City of Chicago, and that while he, Tone, was absent from the automobile a short time the grip with the certificate of evidence was stolen; that the stealing occurred without any fault or negligence on his part; that he has made every effort to recover the certificate of evidence but without avail, and consequently it was not within his power to produce the same; and asked for a discharge of the rule.

It having been made to appear to the court by affidavits that Tone could, if he would, furnish a copy of the certificate of evidence from the stenographer who had furnished the original to defendant, and that it was his own fault that he failed to do so, the court on February 23, 1918, ordered Tone to procure and deliver to the clerk of the court within 15 days a transcript of the proceedings had upon the intervening petition and of appellee’s exhibits in said matter. From this order Tone prayed and was allowed and perfected the appeal which is now before us.

This order is interlocutory and not appealable. It was made in the orderly administration of the court’s business and is in no sense a final judgment. It is clear from Tone’s own statements, if they be true, that he lost the certificate of evidence, and whether the act of so doing was malevolent or accidental is of no importance to the court’s right to order him to make restitution.

For the court to have heeded the contentions of Tone would be to put the burden and expense of reproducing the certificate of evidence upon an innocent party. When Tone took the certificate of evidence he did so with an implication, which needed no words to accentuate, that he would return it so that it might be filed in the cause and approved by the court.

What was said in Lester v. People, 150 Ill. 408, is both applicable and controlling in the instant case:

“Asa general rule, mere errors in making interlocutory orders will furnish no justification for refusing to obey the same, where they do not subject the party to the payment of money, or imprisonment. If the party against whom such order is made wishes to contest the validity or propriety of the order, he may refuse to obey, and in the further proceeding for contempt he may show in defense that the court had no authority to make the order, and if his defense is disallowed, and judgment is entered against him for a sum of money by way of fine, enforceable by execution or imprisonment, an appeal in his favor will lie.”

If the trial judge should, as he may if Tone shall continue to remain contumacious, either fine or imprison him for contempt of court in failing to obey the court’s order, then he will be in a position, if he sees fit, to prosecute an appeal to this court.

As the order appealed from is but interlocutory, the appeal was improvidently granted and it is therefore dismissed.

Appeal dismissed.


text:
    John F. Devine, Administrator of the Estate of Edward J. Kelly, Deceased, Appellee, v. City of Chicago, Appellant.
    Gen. No. 24,682.
    1. Mtjnicipai. corporations, § 938

      —what constitutes exercise of ministerial function. The maintenance and operation by a city of police and fire alarm wires is the exercise of a ministerial not a governmental function.
    2. Master and servant, § 123

      —duty of a city to furnish employee safe place to work. A city, being liable to respond in damages for its negligence when acting in a ministerial capacity, is obliged to furnish its employees a safe place to work the same as other employers of skilled or unskilled labor.
    3. Master and servant, § 140

      —when city Tmeman not given safe place to work. A city lineman engaged in repairing police and fire alarm wires, in a place where he was required to walk upon an insufficiently insulated feed wire of an electric railway company, was not furnished by the city with a safe place to work.
    4. Master and servant, § 363

      —what risks assumed by workman. A workman is bound to assume only those risks which are open and obvious, so that he may be able to apprise himself, in the exercise of reasonable care, of the existence of the risk and the danger arising therefrom.
    5. Master and servant, § 304

      —what risks not assumed by employee. A workman does not assume risks which are unusual, extraordinary or extrinsic to his employment, nor risks arising from the negligence of his employer.
    6. Master and servant—what risk not assumed by city lineman repairing police and fire alarm wires. A city lineman engaged in repairing police and fire alarm wires, which were strung on poles belonging to an electric railway company, did not assume the risk arising from an insufficiently insulated feed wire, belonging to the railway company, upon which he had to walk in the discharge of his duties.
    7. Death, § 36

      —when declaration shows commencement of action for negligent death in one year. When the declaration in an action for negligent death averred the death of decedent on. September 22, 1910, and the record showed that suit was commenced and summons issued August 30, 1911, the fact that suit was commenced within one year affirmatively appears upon the record, and a motion in arrest of judgment, because the declaration did not contain an averment that the action was commenced within one year after the death, was properly overruled.
    8. Pleading, § 451

      —how variance may be taken advantage of. Under a declaration for the wrongful death of a lineman, which averred that decedent came to his death primarily by being electrically shocked through insufficient insulation of a feed wire upon which he stood, if the evidence showed that he was not electrically shocked, but fell to the ground by having lost his balance, or from any other cause than the one averred, that would constitute a variance which, to be availed of, required defendant to move either for an instructed verdict or a new trial upon that ground.
    9. Death, § 506

      —when evidence sufficient to support verdict in action for wrongful death. In an action for wrongful death of a lineman, where the declaration averred that his death was caused primarily by an electric shock which, though perhaps insufficient to cause death directly, did cause deceased to lose his hold and fall, breaking his neck, while defendant contended that he was not shocked but lost his grip and fell, and there was a conflict in the evidence and proof sufficient to support either theory, the court cannot say. that a verdict for plaintiff was not supported by the evidence.
    Appeal from the Circuit Court of Cook county; the Hon. Geokge F. Babeett, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 10, 1919.
    Samuel A. Ettelson and William H. Devenish, for appellant; Edward J. Kelley, of counsel.
    Scott 0. Cavette, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

This action was originally brought against the city and the Chicago City Railway Company for damages for negligently causing the death of plaintiff’s intestate, and went to trial against both corporations. There was a verdict of not guilty against the Chicago City Railway Company and of guilty against the city with damages assessed at $6,000 and a judgment upon these verdicts, from which judgment the city prosecutes this appeal and asks a reversal.

Edward J. Kelly, the plaintiff’s intestate, at the time of the accident in which he lost his life, and for some time previous thereto, was what is commonly known as a “lineman.” He worked around electric wires belonging to' and operated by the city. Under an ordinance of the city, the Chicago City Railway Company erected and maintained certain poles upon which it strung wires electrically charged to operate its cars. Under this ordinance the city had a right to and did string and operate its police and fire alarm wires. These wires of the city were strung above those of the railway company. The theory upon which the declaration and the proofs thereunder proceed is that it was the duty of the city to furnish Kelly with a safe place in which to work; that it disregarded and neglected such duty at the time Kelly met his death; that the railway company hung a feed wire under the city wires which carried from 500 to 600 volts of electricity, and which was insufficiently insulated and1 therefore was not a safe place for Kelly to work.

September 22,1910, Kelly was engaged in repairing the city wires at Seventy-First street and Cottage Q-rove avenue, Chicago, which had burned out the previous day. The gang in which Kelly worked started on the job at 9 o’clock in the morning and Kelly was killed at about 3 o’clock in the afternoon of the same day. Just prior to this fatality the foreman had sent Kelly to work on the wires. He went up a ladder resting against a city wire, which also touched both the lead cable and the street car feed wire. The so-called lead cable and messenger wire belonged to the city, and below them was the feed wire, which belonged to the railway company, being about 3 feet below the wires of the city. The messenger wire was a supporting wire and was without electric energy; it was used to hold up the lead cable, which was fastened to the messenger wire by hooks referred to as “marlin” hooks. Kelly ascended the ladder, taking with him a rope referred to as a “handline,” with a hook in the end of it to pull up material. When he got to the top of the ladder he dropped the hook on the feed wire and then walked with his feet on the feed wire, with his left hand holding the messenger wire, to the pole and back to the place where the ladder was. This he did to fasten the lead cable to the messenger wire by tying the marlin hooks at different distances between the pole and the ladder. Kelly tied about a dozen of these hooks between the ladder and the pole. After Kelly had been to the pole and returned to the ladder he stooped to pick up the hook hanging on the feed wire and the handline attached to it, receiving an electric shock which felled him to the ground, killing him.

It is contended that Kelly was not furnished a safe place to work, in that he was electrocuted because of a defectively insulated joint of the feed wire upon which he necessarily had to walk in doing his work; that while the electric shock may not have been sufficiently strong to have killed Kelly, it was strong enough to cause him to lose his grip and fall to the ground below, resulting in the breaking of his neck and his death.

The city argues for reversal (1) that there is no liability because at the time of the accident to Kelly the city was exercising a purely governmental function in virtue of police power; (2) that Kelly assumed the risk; (3) error in overruling the city’s motion in arrest of judgment because the declaration did not contain an averment that the suit was commenced within a year after the death of Kelly.

First: Whether a city is acting in its governmental or ministerial capacity depends upon the character of the work or enterprise which the facts may develop the city was engaged in and upon which the right to maintain an action is predicated. If in a particular case it develops that the matters complained about were governmental matters, then there is no liability, but if such matters are ministerial, then the city is civilly liable.

We think that the city in the maintenance and operation of its police and fire alarm wires may be said to maintain and operate the same in its ministerial capacity, quite as much so as the city was held to be so operating in Johnston v. City of Chicago, 258 Ill. 494, when operating an automobile in connection with its public library. The city owned the automobile, the instrumentality of the accident, and was using it in a branch of the city service in its maintenance and operation of a public library, and in the instant case the city owned, operated and maintained the police and fire alarm wires upon which Kelly was working when he met with the accident which killed Turn. In the Johnston case, supra, the distinction between the exercise of governmental and ministerial functions by a city is well defined and clearly elucidated with ample citation of authority. To that decision we refer on this point without further comment.

The city being liable to respond in damages for its negligence when acting in its ministerial capacity, the rule obligating an employer to furnish a safe place in which and safe tools and appliances with which to work, is the same in the case of a municipal corporation as with other employers of either skilled or unskilled labor. Condon v. City of Chicago, 249 Ill. 596.

Second: Under the proofs in this case Kelly did not assume the risks arising from the cause which eventuated in his death. A workman is bound to assume only those risks which are open and obvious, so that he may be able to apprise himself, in the exercise of reasonable care, of the existence of the risk and the danger arising therefrom so as to avoid injury to himself. So in this case, Kelly did not by his contract of employment assume the risk of an insufficiently insulated feed wire of the railway company upon which he must stand in doing the work for which the city employed him. Guthman v. City of Chicago, 236 Ill. 9.

A workman does not assume risks which are unusual, extraordinary or extrinsic to his employment, nor risks which arise from the negligence of the employer, Applying this rule to the instant case, Kelly did not assume the risk flowing from an insufficiently insulated feed wire of the railway company upon which he necessarily had to walk in the discharge of his duties. City of La Salle v. Kostka, 190 Ill. 130.

Third: The contention of the city, that the court erred in overruling its motion in arrest of judgment because the declaration did not contain any averment that the action was commenced within one year of the death of Kelly, is not well taken. The record shows that the suit was commenced within the limitation of one year. The declaration averred the date of the death of Kelly as September 22, 1910, and the record showed that the suit was commenced and summons issued on August 30,1911. The fact that the suit was commenced within a year from the death of Kelly affirmatively appears upon the record.

No questions arise upon the pleadings or that the verdict is not supported by the evidence if the action is maintainable, or that the damages are excessive. It is, however, contended that Kelly did not come to his death from an electrical shock, but that he lost his grip and fell from the wire to the ground, breaking his neck, from which injury he died.

There is evidence in the record to sustain this contention if the jury gave it credence. Whether Kelly came to his death as the result of an electrical shock or by simply falling from the feed wire of the railway company was squarely before the jury for their decision, and, as there is a conflict in the evidence and proofs sufficient to support either theory, we cannot say that the verdict which the jury rendered is not supported by the evidence. The declaration averred that Kelly came to his death primarily by being electrically shocked through insufficient insulation of the railway company’s feed wire upon which he stood. If the evidence proved that Kelly was not electrically shocked, but fell from the feed wire to the ground by having lost his balance, or for any other cause than the one averred, that would constitute a variance between the allegata and probata, which to be availed of required the city to move either for an instructed verdict upon that specified ground, or upon that ground in its motion for a new trial. Neither of these courses was followed.

Kelly was not furnished a safe place in which to work by his employer, the city, as the jury by its verdict found. The insufficient insulation of the feed wire of the railway company rendered his position not only unsafe but, as the sequel showed, perilous to his life. This constituted actionable negligence.

There being no error in this record justifying a reversal of the judgment of the Circuit Court, it is affirmed.

Affirmed.


text:
    Reskie, Kirshbaum & Company, Appellant, v. H. Walzer, trading as H. Walzer & Company, Appellee.
    Gen. No. 24,770.
    1. Contracts, § 323

      —what is effect of breach of contract by both parties. When both parties to a contract have breached the agreement, neither is entitled to the aid of the law in enforcing an action for damages for a claimed breach thereof by the other.
    2. Sales, § 114

      —what is breach of contract by purchaser. Refusing to accept goods contracted for because better goods had been obtained elsewhere for less money is a breach of the contract.
    3. Contracts, § 318

      —what is breach of severable contract. When a contract consists of two parts which are severable; a refusal by defendant to perform the second part because plaintiff had breached the first part constitutes a breach of the contract by defendant.
    4. Contracts, § 323

      —what is effect of breach of severable contract by both parties. When a severable contract, consisting of an agreement by defendant to furnish two separate lots of goods, was breached by plaintiff wrongfully refusing to accept the first lot, whereupon defendant, elected to repudiate the whole contract, both parties are in default in performance of the contract, and neither can maintain an action for its breach by the other.
    ' 5. Appeax. and error, § 1802

      —when remandment not made upon reversal. Where a judgment upon a counterclaim in an action upon a contract was reversed because neither party had a right of action against the other under the contract, the cause was not remanded.
    Appeal from the Municipal Court of Chicago; the Hon. John A. Swanson, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed without remanding.
    Opinion filed March 10, 1919.
    SONNENSCHEIN, BeRKSON, LaUTMANN & LEVINSON, for appellant.
    Max Luster, for appellee.

      See Illinois Notes nisrest, 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 Holdom

delivered the opinion of the court.

Into this litigation is projected a claim and counterclaim. On a trial before the court defendant prevailed and obtained a finding and judgment for $1,500 against plaintiff on his counterclaim, to reverse which plaintiff prosecutes this appeal.

Plaintiff manufactures ladies’ garments and deals in them at wholesale. The defendant is a furrier. On February 24, 1916, the parties entered into a contract of a dual character. Defendant was to trim certain sample' garments belonging to plaintiff with various kinds of fur, among which were opossum, racoon, skunk and beaver. The first part of the contract amounted in money, under the schedule of prices contained in it, to $399.25. These goods were to be delivered by April 1, 1916. The second part of the contract called for 750 dozen yards of various kinds of skins of the character above mentioned at varying prices, totaling $10,695, which were to be delivered in instalments beginning July 1, 1916, and ending November 15,1916.

In arriving at a conclusion in this case we shall disregard all questions raised and discussed in the briefs except as they may relate to and have bearing upon the point upon which our decision rests, which is that both parties breached the contract and that therefore neither is entitled to the aid of the law in enforcing an action for damages for any claimed breach thereof by the other party.

Defendant completed the first part of the contract and delivered the goods to plaintiff within the contract time. Plaintiff made a captious objection, which defendant remedied, and again delivered the goods to plaintiff, which goods plaintiff again refused to keep and returned the same to defendant. There was some correspondence upon the subject, and it appears that Mr. Kirshbaum of the plaintiff company told defendant Walzer that they had bought better goods and paid less money for them. This, we think, sufficiently explains the reason for plaintiff’s refusing to accept the goods. In so doing, plaintiff breached the contract.

If the contract were not severable, this breach of itself would entitle defendant at Ms option to refuse to be further bound by it. Defendant refused thereafter to fulfil the second part of the contract and in that way breached that part of the contract, for which breach plaintiff brings this suit to recover damages.

The contract being severable, had plaintiff not been in default by its breach of the first part of the contract it could have maintained its action for damages by reason of defendant’s breach of the second part of the contract. When plaintiff breached the first part of the contract defendant elected to and did repudiate any further liability under the same, saying “that he was through with the whole business.” In Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59, it was held that where one party repudiates the contract, the injured party has an election to pursue either of three remedies. He may (1) treat the contract as rescinded and recover upon quantum meruit so far as he has performed; or (2) keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified sue and recover under the contract; or (3) treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing, continuing the contract in force for the latter purpose only.

In the Richards case, supra, it was held that the injured party must allege and prove performance on his part, or a legal excuse for nonperformance. Under the evidence before us, the Richards case has no application because plaintiff has neither proven performance of its part of the contract nor any legal excuse for nonperformance.

We think this case falls within the reason and logic, both on fact and principle, of Harber Bros. Co. v. Moffat Cycle Co., 151 Ill. 84, in which the court, inter alia, said:

“The question here distinctly presented as the controlling one, is whether a vendee who has accepted goods delivered under an express contract, but not at the time or in the quantity required by it, with knowledge of the default of the vendor in those respects, but has himself failed, without legal excuse, to pay for them according to it, can maintain an action on the contract for such a default of the vendor. We think the general rule, everywhere recognized, is against it, and has been specifically so applied in analogous cases in Illinois. Pennsylvania Coal Co. v. Ryan, 107 Ill. 226; Bradley v. King, 44 Ill. 339; Stewart v. Many, 7 Ill. App. 517.”

As said in the Harber case, supra, the plaintiff was seeking damages as on an implied agreement nor by way of recoupment, but by action on the express contract, and in commenting upon these facts the court said:

“We understand it to be an elementary and inflexible rule in such case, that it must aver and prove it is not itself in default as to the agreement for the breach of which * * * it brings the suit.”

Such is the condition in the instant ease. The suit by plaintiff is on the contract which it having inexcusably breached puts' it out of court. As further said in the Harber case:

“The parties then being alike in default, how can either maintain an action, upon the contract, for its breach by the other? What hinders the application of the rule in such case that potior est conditio defendentis?”

Both plaintiff and defendant are in default in performance of the .contract in suit; therefore neither party can maintain an action for damages for its breach by the other, neither having shown a legal excuse for nonperformance. Bradley v. King, 44 Ill. 339.

The judgment of the Municipal Court is reversed, and as neither party has a right of action against the other under the contract, the cause is not remanded.

Reversed without remanding.


author: Mr. Justice McSurely

text:
    Continental and Commercial Trust & Savings Bank, Trustee, Appellee, v. Ben Leven et al. (Defendants). Albert Silverman, Appellant.
    Gen. No. 24,218.
    1. Mortgages, § 359

      —when assertion of rights in property by party to foreclosure proceedings too late. One who was duly noticed in foreclosure proceedings to present whatever interest he might have in the premises may not stand by without making such proof and allow the foreclosure to proceed to decree, sale and deed and then, over 4 years after acquiring the interest which he claims, assert it for the first time upon final report by the receiver.
    2. Mortgages, § 520

      —when order requiring receiver to turn over to trustee sufficient funds to satisfy deficiency decree is proper. A trust deed providing for the conveyance of the premises “together with all the rents, issues and profits thereof,” and a further provision that in case of default and foreclosure the “grantors waive all right to the possession of and collection of income from said premises, pending such foreclosure proceedings, and until redemption from any sale thereunder, or until the period of redemption from such sale expires,” amounted to a conveyance of the rents during the period of redemption; and where the owner of the equity of redemption has not been made liable for the deficiency decree, an order of the chancellor, upon the finhl report of the receiver, that he pay to the trustee enough of the funds remaining in his hands to satisfy in full the deficiency decreed to be due it, was proper.
    3. Mortgages, § 520

      —when order requiring receiver to pay balanee in his hands to grantor in trust deed, after satisfying deficiency decree is proper. Where the grantor in a trust deed subsequently conveyed the premises to another but remained personally liable for the amount due the trustee, and on one occasion turned over to it an amount sufficient to protect an interest coupon, which was due and unpaid, if the grantee did not pay, it was proper for the chancellor to order the receiver, after satisfying complainant’s deficiency, to pay the balance in his hands to such grantor, who was defendant and cross complainant in the foreclosure proceedings.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed March 10, 1919.

      West & Eckhart, for appellant.
    Mayer, Meyer, Austrian & Platt and Smith & Wallace, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

By this appeal the appellant, Albert Silverman, seeks the reversal of an order that a balance of $7,675.55 in the hands of a receiver, appointed in foreclosure proceedings, be paid to the complainant, trustee in the trust deed foreclosed in satisfaction of a deficiency decree, and the remainder, $748.92, to Charles G-reve, a defendant and cross complainant.

Silverman says he is the owner of the equity of redemption and, therefore, entitled to this money. Complainant asserts that the record fails to show that he is the owner of the equity of redemption or has any interest in the matter. We are of the opinion that complainant’s point is supported by the record. The trust deed in question is dated December 21, 1910, at which time Charles Greve owned the premises. On November 1,1911, G-reve conveyed to Ben Leven. The bill of complainant to foreclose was filed September 5, 1913, and by amendment on November 13,1915, Silver-man was made a party defendant, with the allegation that he claimed to have some interest in the premises. He answered admitting that he claimed some interest but did not show the nature of the same. Complainant by its bill was asking inter alia for a lien against the rents of the premises described in the trust deed during the period of redemption. Hearings were had before a master in chancery, but Silverman introduced no evidence whatever as to his interest, if any, in the premises. The master reported finding that complainant was entitled to a lien on the rents during the period of redemption, but Silverman, although notified of such report, filed no objections thereto. A decree of foreclosure was entered by the court in accordance with the recommendation of the master but no exceptions were taken by Silverman. Subsequently a sale was made in pursuance of the decree, and a deficiency decree entered, with an order for the receiver to continue-in possession until the further order of the court. To this Silverman filed no objections or exceptions. After the period of redemption expired, the receiver, on October 24, 1917, filed his final report and account with the court showing a balance in his hands, and asked that he be allowed to pay over to complainant an amount sufficient to satisfy the deficiency and the balance to Charles G-reve in pursuance of the prior decrees. To this Silverman filed objections in which he described himself as the owner of the equity of redemption of the premises. His objections, however, went only to some minor points and did not go to the request of the receiver to be permitted to satisfy the deficiency decree or to pay Greve. Upon the hearing before the court on these objections Silverman offered to put in evidence a deed dated October 13, 1913, purporting to convey the premises to him, but the court sustained an objection to this upon the ground that the record should stand as it then was.

It is not permissible that Silverman, although duly noticed in the foreclosure proceeding to present whatever interest he might have in the premises, should stand by without making such proof and allow the foreclosure to proceed to decree, sale and deed, and thereafter, over 4 years after acquiring the interest which he claims, upon the final report of the receiver, to assert for the first time his claim. In Finch v. Martin, 19 Ill. 105, it was held that defendants were bound to answer and disclose their title if they had any. In Kehn v. Mott, 187 Ill. 521, it was held upon a situation similar to this that the allegation in complainant’s bill puts the duty upon the defendant of setting up his interest by way of answer and establishing it by proof, and that be “cannot avail himself of any defend not so set up, even if proven by the evidence.” Any other practice would be unconscionable.

Upon his final report the chancellor ordered the receiver, out of the funds remaining in his hands, to pay to complainant $6,827.63 in full satisfaction of the deficiency decreed to be due it. We hold that such an order was proper. Numerous cases have been cited which it is said hold such an order is improper. We believe, however, that examination of such cases will show that they are distinguishable from the instant case. In those eases the rents and profits were not pledged during the period of redemption, and the amount held by the receiver was claimed by the holder of the certificate of sale. The case before us is different in both these respects. While complainant was also the purchaser at the sale, nothing is claimed from that fact. The trust deed conveyed the premises “together with all the rents, issues and profits thereof”; there is a further provision that in case of default and foreclosure the “grantors waive all right to the possession of and collection of income from said premises, pending such foreclosure proceedings, and until redemption from any sale thereunder, or until the period of redemption from such sale expires.” Pursuant to the prayer of complainant’s bill, and based upon these provisions of the trust deed and the master’s report, it was decreed that the complainant have a first lien upon the rents, including those “that may accrue after any foreclosure sale and up to the end of the period allowed by law for the redemption from any such sale,” and that such rents should be applied on the amount found due to it, and in case of a deficiency decree upon the sale that complainant should have its lien against the rents accruing during the period of redemption. Upon the coming in of the master’s report of sale, with a report of a deficiency, the court ordered that complainant have a lien for the amount of this deficiency with interest, upon the rents during the period of redemption.

In view of this express contract of the parties giving complainant a lien upon the rents during the period of redemption, we do not see how appellant’s contention can successfully be maintained. Indeed in his brief it is expressly conceded as true that if the mortgage conveys the rents during the period of redemption they may be applied in payment of a deficiency decree. We are of the opinion that the language of the trust deed above referred to is such a conveyance.

If it is said that the trust deed is merged into the foreclosure decree, it is sufficient to reply that the decree gives complainant a lien against the rents during the period of redemption, pursuant to the terms of the trust deed.

We know of no case where the rents have been so pledged which holds that the grantee in the deed may be deprived of them unless the owner of the equity of redemption has been made personally liable for the deficiency decree. In the cases cited where personal liability has been held necessary, the amount in issue was not awarded to the grantee under the provisions of the trust deed.

Among the cases supporting our view are Schaeppi v. Bartholomae, 217 Ill. 105; Prussing v. Lancaster, 234 Ill. 462; Hayward v. Burke, 151 Ill. 121; Owsley v. Neeves, 179 Ill. App. 61; Ryan v. Illinois Trust & Savings Bank, 100 Ill. App. 251. We repeat the distinction above noted, that this is not the usual case of a purchaser at a sale, but is a grantee in a deed seeking a fund upon which it has a lien by the terms of such deed.

Was it error to order the receiver after satisfying complainant’s deficiency to pay the defendant and cross complainant Charles Greve the balance in his hands? Greve, the original grantor in the trust deed, conveyed the premises to Leven but remained personally liable for the amount due complainant. One of the interest coupon notes falling due and not being paid, Greve turned over to the trustee an amount sufficient to protect it in the event that Leven did not pay this interest. Greve in his cross-bill prayed that he be decreed a lien for this amount subject to the prior lien of the complainant, and such was the decree. The following cases support the contention that a deficiency decree is not necessary to entitle a junior incumbrancer to the rents where his claim is all deficiency and complainant’s claim has been paid in full. Schaeppi v. Bartholomae, 217 Ill. 105; Roach v. Glos, 181 Ill. 440; Ruprecht v. Henrici, 116 Ill. App. 583; Ruprecht v. Muhlke, 225 Ill. 188; Howard v. Burns, 279 Ill. 256.

We hold that the court committed no error in its decree of November 23, 1917, even if it could be questioned by the appellant, Silverman; and we hold that he could not properly be heard for the reasons above indicated. The decree is affirmed.

Affirmed.


author: Mr. Justice Mc'Surely

text:
    Pittsburgh Plate Glass Company et al., Appellees, v. Mathias Huberty et al., Appellants.
    Gen. No. 24,656.
    1. Mechanics’ liens, § 68

      —when subcontractors' liens not defeated by failure to serve notice thereof. As a subcontractor’s lien is based upon the original contract and his rights and those of the original contractor attach at the same time, under the provisions of sections 1 and 21 of the Mechanics’ Liens Act (Callaghan’s 1916 St. Supp. Iff 7139, 7159), failure of subcontractors to serve their notices upon the owners prior to the adjudication of the general contractors in bankruptcy will not defeat their liens.
    2. Mechanics’ liens, § 61

      —when lien of subcontractor becomes effective. Although a lien claimant has only an inchoate or incipient lien which may be lost until the statutory requirements have been observed, when he has complied with such requirements the lien ripens into a valid claim, attaching as of the date the contract was made by the original contractor.
    3. Bankruptcy, § 18

      —what is effect of bankruptcy proceedings upon subcontractors’ liens. As a subcontractor’s lien attaches as of the date of the original contract, where the original contract was made long prior to the filing of a petition in bankruptcy by the original contractors, the subsequently perfected liens of subcontractors could not, under section 21 of the Mechanics’ Liens Act (J. & A. f 7159), be defeated or barred by the bankruptcy.
    4. Mechanics’ mens, § 89

      —when payments by owners to contractors wrongful. Where original contractors did not furnish nor the owners require statements showing the amounts due to subcontractors, as provided for by section 5 of the Mechanics' Liens Act (J. & A. If 7143), all payments on behalf of the owners to the original contractors were wrongful, and the master correctly found that in legal effect there was still a fund in the hands of the owners subject to the subcontractors’ liens.
    5. Mechanics’ mens, § 128

      —when subcontractors’ liens have priority over unrecorded prior mortgages. Subcontractors’ liens which attached on a certain date were prior to the liens of trust deeds executed before that date, but which were not recorded and under which no money was furnished until a later date.
    6. Mechanics’ mens, § 212

      —who is not party to proceedings for enforcement of subcontractors’ liens and may not appeal. One who, pending proceedings for the enforcement of subcontractors’ liens, loans money upon receiver’s certificates to complete the building, which amount, in the final decree, was ordered to be a first lien subject to the subcontractors’ liens, was not a party, nor was he an appellee entitled to assign cross errors, under Practice Act, ch. 110, sec. 107 (J. & A. j[ 8644), and his right to appeal is doubtful.
    7. Receivers, § 21

      —when may not borrow money. There is no authority for permitting a receiver for original contractors, in the case of private property, to borrow money to complete the improvement, and decreeing the amount borrowed to be a lien prior to all other claims.
    8. Bills and notes, § 259

      —when purchaser for value without notice protected. The claim of want of consideration, made by the owners of premises as to trust deeds and notes given to contractors to pay the balance due on the contract price for the erection of a building, cannot affect the rights of one who, from the undisputed testimony, appears to have been a purchaser for value without notice.

      Appeal from the Circuit Court of Cook county; the Hon. Oscab M. Tobbison, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed March 10, 1919.
    Vincent D. Wyman, Harry C. Kinne and Charles E. Carpenter, for appellant Henry P. Kransz.
    Charles C. Bodenstab, for appellants Rudolph J. Boss and Margaret Boss.
    Peter P. Kransz, pro se.

    Gustav E. Beerly, G. A. Buresh and Albert N. Charles, for appellees Pittsburgh Plate Glass Co., Kemler Lumber Co. and Edward Henry; Gustav E. Beerly and G. A. Buresh, of counsel.
    Reuel H. Grünewald, for appellee Fred J. Bohn.

      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, game topic and section number.

   Mr. Justice Mc'Surely

delivered the opinion of the court.

This cause is concerned primarily with the rights of appellees, who are lien claimants as subcontractors. Upon the original bill filed by the Pittsburgh Plate Glass Company, cross-bills, intervening petitions, answers, replications of various claimants and parties in interest, and after consolidating certain claims, reference to a master and his report with conclusions, and exceptions thereto, on July 15, 1918, by decree entered, the lien claimants were given a first and prior lien over all other claimants in the following amounts; Pittsburgh Plate Glass Company, $93.63; Fred J. Bohn, $890.04; Kemler Lumber Company, $913.87; and Edward Henry, $730.58, all with interest from May 6, 1918. Appellants ask that this be reversed.

These facts are not in dispute. On January 15, 1916, Rudolph J. Boss and Margaret Boss, owners of the premises in question, executed their note of that date for $7,500 and a trust deed securing the same, to Henry P. Kransz, as trustee, the note and trust deed being given to secure a building loan for a building proposed to be erected on the premises. On March 15, 1916, the owners contracted with Huberty & Loheinrich to furnish and provide all necessary labor and material. These contractors contracted with the lien claimants herein, as subcontractors, for labor and material. The last dates of performance of their subcontracts were: Pittsburgh Plate Glass Company, June 23rd; Fred Bohn, July 18th; Kemler Lumber Company, June 30th; Edward Henry, July 7th. Subcontractors’ statutory notices in due form were given as follows: The Glass Company, August 14th and August 18th; Bohn, September 14th; Kemler Company, July 13th, and Edward Henry, July 15th; all of the above dates are in 1916. The trust deed to Kransz was recorded April 18, 1916, and the first money advanced thereunder was on April 21st, amounting to $88.40, and May 3rd, amounting to $2,197.55. On April 12, 1916, the owners of the property executed other promissory notes in the sum of $2,200, secured by deed of trust conveying the same premises to Mathias Huberty as trustee; this was recorded on May 4, 1916. On July 7, 1916, a petition of voluntary bankruptcy was filed by the original contractors, Huberty & Loheinrich, and they were adjudicated bankrupt on July 12th. It will be noticed that the subcontractors’ notices claiming their respective liens were not served prior to this adjudication in bankruptcy, although it is not disputed that their notices, bills, answers and intervening petitions were filed within the statutory period.

Did the failure of the subcontractors to serve their notices upon the owners prior to the adjudication of the general contractors in bankruptcy defeat the liens? Disregarding decisions under a different Mechanics’ Liens Statute than the present one, we are of the opinion that the answer to this question must be in the negative. The Mechanics’ Liens Act now under consideration is the revision of 1903, as amended in 1913. Section 21 of this Act (Callaghan’s 1916 St. Snpp. ¶ 7159), provides, among other things, that the subcontractor shall have a lien “from the same time, and on the same property, as provided for the contractor”; and section 1 (Callaghan’s 1916 St. Supp. ¶ 7139) provides that “this lien shall attach as of the date of the contract.” This language is clear of ambiguity. As the subcontractor’s lien is based upon the original contract, his rights attach at the same time that the original contractor’s rights attach. Supporting this are the decisions in Springer v. Kroeschell, 161 Ill. 358; Von Platen v. Winterbotham, 203 Ill. 198; W. W. Brown Const. Co. v. Central Illinois Const. Co., 234 Ill. 397; Rittenhouse & Embree Co. v. Warren Const. Co., 264 Ill. 619; Boyer v. Keller, 258 Ill. 106.

It is true that until the statutory requirements are observed, a lien claimant has only an inchoate or incipient lien which may be lost, but having complied with all the requirements of the statute, the lien ripens into a valid claim attaching as of the date of the original contract. That date in the case before us was March 15, 1916, and we hold that the liens of the subcontractors herein attached on that date.

Section 21 of the Liens Act (Callaghan’s 1916 St. Supp. 7159) provides that such subcontractors have not only a lien on the property but “also, as against the creditors and assignees, and personal and legal representatives of the contractor * * * and on the moneys or other considerations due or to become due from the owner under the original contract.” Giving effect to this language, which we are bound to do, it follows that as the liens attached long prior not only to the adjudication of the contractors in bankruptcy, but to the filing of the petition, they cannot be defeated or barred by the bankruptcy. North Side Sash & Door Co. v. Goldstein, 210 Ill. App. 226, affirmed in 286 Ill. 209; also Pease v. Ritchie, 132 Ill. 638; Mallin v. Wenham, 209 Ill. 252; Paddock v. Stout, 121 Ill. 571; Hier v. Kaufman, 134 Ill. 215, and Brown v. Starin, 56 Ill. App. 231. In Loveland on Bankruptcy (4th Ed.), vol. 1, p. 945, the rule is stated generally as follows:

“Whether a mechanic’s lien is a valid claim against the estate of the bankrupt depends upon the local law as construed by the highest court of the State. If a valid lien has attached under the State law before proceedings in bankruptcy have been commenced, the lien will be respected by the court of bankruptcy.”

And at page 946:

“Where a mechanic’s lien is valid as against a debt- or or his general assignee under the State law when notice of lien is recorded after bankruptcy, it is valid as against his trustee in bankruptcy.”

Cases cited holding to the contrary have to do with the previous Mechanics’ Liens Statute, where it was definitely provided that the lien of a subcontractor should attach as of the date of his notice to the owner. As above noted, this is not the present law.

In this case the original contractors did not furnish to the owners, nor did the owners require, any statement showing the amounts due to the respective subcontractors, as provided by section 5 of the Liens Act (J. & A. ¶ 7143); therefore all moneys paid on behalf of such owners to the original contractor were wrongful as against the subcontractors, under the provisions of section 32 (J. & A. ¶ 7170). Brennan v. William P. McEvoy & Co., 196 Ill. App. 336; American Radiator Co. v. Blakie, 165 Ill. App. 404.

The master correctly found with reference to the liens that, as to them, in legal effect there was still a fund in the hands of the owners subject thereto.

As the subcontractors’ liens attached on March 15, 1916, it follows that the decree properly found them prior to the lien of the trust deed to Kransz. This deed, while dated January 15, 1916, was not recorded until April 19, 1916, and the first payment, amounting to $88.40, was made April 21, 1916, and the next in May. As was said in Schaeppi v. Glade, 195 Ill. 62, a mortgage can only take effect as a lien from the time some debt or liability is created. To the same effect are Lamphier v. Desmond, 187 Ill. 370, and Fischer v. Touhy, 186 Ill. 143. What is said of the Kransz trust deed is also true of the trust deed to Huberty dated April 12, 1916, recorded May 14, 1916, now held by Walter M. Inman.

Pending the proceedings in the trial court, Henry P. Kransz filed a motion representing that the premises were not completed and that it would take approximately $4,200 to complete them, and that one Peter P. Kransz had offered to loan said sum upon receiver’s certificates secured by a trust deed free and clear of all liens held by any of the parties. An order was entered to this effect, to which the subcontractors objected and excepted. The final decree ordered that the amount of these certificates, with interest thereon, was a first lien, subject however to the mechanics’ liens of the subcontractors. Peter P. Kransz filed a brief in this court, claiming priority for his receiver’s certificates. It is very doubtful as to his right to appeal, as he was not a party to the proceeding. In many cases it has been held that an appeal is purely statutory, and that no statute exists authorizing an appeal by a person not a party to the suit (Louisville, E. & St. L. Consol. R. Co. v. Surwald, 147 Ill. 194; Hesing v. Attorney General, 104 Ill. 292). Neither is he an appellee, and hence cannot assign cross errors (Pelouze v. Slaughter, 241 Ill. 215; Practice Act, ch. 110, sec. 107, J. & A. ¶ 8644). But even were the question properly before us, we would not disturb the decree in this respect. We know of no decision in this State, in the case of private property, where, over the objections of claimants, a receiver has been permitted to borrow money for completing an improvement, and the amount borrowed decreed to be a lien prior to all other claims. In Clark on the Law of Receivers (1918 Ed.), vol. 1, p. 644, sec. 572, is stated the difference between receiver’s certificates in the case of a railway and in the case of a private corporation, namely, that while a railway receiver’s certificates may take precedence over lien creditors, “in the case of the debts evidenced by receiver’s certificates issued by a receiver of a private corporation, they, with few exceptions, will not take precedence over the debts of lien creditors. ’ ’ This is supported by many decisions. The same author further states (p. 646) that the receiver of a private corporation has no such latitude in legal contemplation respecting receiver’s certificates, as do those of a railroad or public service corporation, and that in the absence of consent by other interested parties, his authority must be confined to administering the assets and preserving the property from deterioration. High on Receivers (4th Ed.), page 379, states that “it is improper to authorize the issuing of such certificates without the consent of the creditors whose liens against the property would be. thereby affected.” In accord with this is Snow v. Winslow, 54 Iowa 200; Baltimore Building & Loan, Ass’n v. Alderson, 90 Fed. 147. In Davis v. Alton, J. & P. Ry. Co., 180 Ill. App. 1, the court held, even in the case of a railroad, that it would be unjust to decree the receiver’s certificates to be prior to the claims of subcontractors, stating that it would be manifestly unjust to permit liens of material and laboring men to be swept away by a large class of bondholders seeking to protect themselves at the expense of the lienors, by undertaking to complete the road under an issue of receiver’s certificates which should be a lien prior to the liens of all others. This indicates the danger of •Hhe practice, and emphasizes the propriety of the decree before us in this respect.

We find no error in the decree with reference to the lien claims of complainants as the respective subcontractors.

The owners of the premises, Rudolph and Margaret Boss, in addition to points raised against the lien claimants, also attack the validity of the trust deed and notes held by Walter Inman, asserting that they are void for failure of consideration, arid claiming that they were given to Huberty & Loheinrich, the original contractors, for the purpose of paying the balance due them on the contract price for the erection of the building; that the contractors sold the trust deed and notes to Inman through one Oeckerlund. No brief is filed here by Inman. We have, however, examined his testimony, and even if the statement of the owners as to their understanding with Huberty & Loheinrich be true, Inman appears from the undisputed testimony to have been a purchaser for value, without notice of any such agreement. He states that he purchased the note for $1,800, and had no conversation with the owners or the original contractors and knew nothing about the alleged consideration as between them. Under such circumstances the claim of want of consideration cannot affect the rights of Inman.

After considering the record and the briefs, we see no reason to disturb the decree of the Circuit Court, and it is therefore affirmed.

Affirmed.


author: Mr. Justice MoSurely

text:
    E. G. Shinner, Appellant, v. William H. Raschke, Appellee.
    Gen. No. 24,676.
    1. Bills and notes, § 431

      —when parol evidence inadmissible as attempt to change terms of note. In an action upon a promissory note, in the usual form and unconditional in' its terms, testimony of the maker that it was given for stock in a corporation upon an agreement that it was to be paid out of the profits of the business, and, if the business was unsuccessful, was to be canceled, was inadmissible as an attempt to change the terms of a written instrument.
    2. Judgment—when by confession reinstated after vacation. Where, after judgment by confession in an action on a promissory note, the court, on motion of defendant based upon an inadmissible defense, set aside the judgment and permitted defendant to plead, and on trial judgment was rendered in his favor, all proceedings subsequent to the petition to vacate the judgment by confession should be set aside and said petition denied, leaving the judgment by confession to stand as the judgment in the case.
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed March 10, 1919.
    Mayer, Meyer, Austrian & Platt, for appellant.
    Litsinger, Healy Ss Reid, for appellee; James J. Finn, of counsel.

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

   Mr. Justice MoSurely

delivered the opinion of the court.

On November 21, 1916, plaintiff obtained a judgment for $867 by confession on a note for $800 given him by the defendant. Subsequently defendant moved the court to set aside the judgment and for leave to plead, and was permitted to plead and the judgment ordered to stand as security. Defendant then filed a plea of general issue and a special plea substantially restating the grounds set forth in his motion for leave to plead. Eeplications to these pleas were filed, and the cause tried before a jury which returned a verdict favorable to the defendant. The court denied a motion in arrest of judgment, and judgment of nil capiat was entered upon the verdict.

The substance of defendant’s motion to set aside the judgment and for leave to plead, and also of his general and special plea, was that plaintiff and defendant had formed a corporation for the manufacture of sausage, of which the defendant was to be president and manager; that defendant purchased ten' shares of stock from plaintiff, for which the note in question was given, but that there was a parol agreement that the note should be paid out of the profits of the business; that the stock bought by defendant was to be held by plaintiff as collateral to the note, but that if the business should not prove a success'plaintiff would keep the stock and cancel the note.

Upon the trial evidence was heard tending to support this defense, but on consideration of the entire evidence, including that which is incompetent, we are of the opinion that the alleged parol agreement failed of proof.

The note is in the usual form and is unconditional in its terms, and we are of the opinion that defendant’s testimony was inadmissible as an attempt to change the terms of the written instrument. The objection to this testimony should have been sustained. It also follows that the motion in arrest of judgment should have been allowed. Among the cases supporting our opinion as to the inadmissibility of this evidence are: Schultz v. Meyer, 181 Ill. App. 335; Harris v. Galbraith, 43 Ill. 309; Moore v. Prussing, 165 Ill. 319; Foy v. Blackstone, 31 Ill. 538; Marlow v. Boswell, 15 Ill. 56; Kris v. Pokrok, 46 Ill. App. 418; Beattie v. Browne, 64 Ill. 360; Mason v. Burton, 54 Ill. 349.

In consideration of what is held in the above cases we are of the opinion that the original petition filed by defendant for leave to plead set up an inadmissible defense and that the motion should have been denied. We hold, therefore, that all the proceedings subsequent to that motion should be vacated and set aside, leaving the judgment of November 21, 1916, to stand as the judgment in the case. The judgment of nil capiat entered on the verdict of the jury will therefore be reversed and the cause remanded with directions to vacate all proceedings subsequent to the petition to set aside the judgment, filed December 18,1916, and that the motion contained in said petition be denied.

Reversed cmd remanded with directions.


text:
    Pearl Wagener, Appellee, v. Western Electric Company, Appellant.
    Gen. No. 24,690.
    1. Judgment, § 273

      —what errors may be corrected by motion. Only errors of fact not apparent upon the face of the record, and such facts as it would he presumed if the court had cognizance of it would not have rendered the judgment, may he corrected by motion under Hurd’s Rev. St. ch. 110, sec. 89 (J. & A. If 8626).
    2. Judgment, § 273

      —when order of dismissal for want of prosecution may be set aside on motion. An order of dismissal of a case for' want of prosecution may he set aside upon written motion, under Hurd’s Rev. St. ch. 110, see. 89 (J. & A. If 8626), relating to correction of errors of fact, where the plaintiff was dead and such fact had not been suggested of record.
    3. Judgment, § 272

      —necessity that motion for correction of errors in fact be in writing. The motion for correction of errors of fact pursuant to Hurd’s Rev. St. ch. 110, sec. 89 (J. & A. If 8626), must be in writing.
    Appeal from the Circuit Court of Cook county; the Hon. Oscab M. Tokbison, Judge, presiding. Heard iff this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed March 10, 1919.

      Holt, Cutting & Sidley, for appellant.
    Joseph A. Weber, for appellee.

      See Illinois Notes Digest, Vols. XJ to XV, and Cumulative Quarterly, fitini’ topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

On September 30,1914, in the Circuit Court of Cook county, the case of Pearl Wagener against the Western Electric Company was called for trial and, no one appearing for the plaintiff, an order was entered dismissing the cause at plaintiff’s costs for want of prosecution. In June, 1918, James F. Bishop, as administrator, made an oral motion asking the court to set aside this order of dismissal on the ground that on the date of the dismissal Pearl Wagener was deceased and no administrator had been appointed for her estate. The Circuit Court allowed this motion and the cause was reinstated. From this order the defendant has appealed to this court.

Both counsel have presented and argued points relating to the propriety of the order of September 30, 1914, dismissing the cause for want of prosecution. We are of the opinion that such matters are not now properly before us, and therefore we shall not pass upon the same.

By section 89, ch. 110, Hurd’s Ill. St. (J. & A. ¶ 8626), it is provided that the writ of error cor am nobis is abolished, and that errors in fact which could have been corrected by this writ “may be corrected by the court in which the error was committed, upon motion in writing made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.” Only errors of fact not apparent upon the face of the record may be thus corrected, and such facts as it would be presumed if the court had cognizance of it would not have rendered the judgment. Proceedings in a cause where the plaintiff is dead, before this has been suggested, should be corrected under the provisions of this act. Mitchell v. King, 187 Ill. 452. Clearly the mover in the case at bar must proceed under the provisions and requirements of the statute.

This requires that the motion to set aside the order dismissing the suit should be in writing, and the oral motion made did not give the court jurisdiction thereof. In Mitchell v. King, 187 Ill. 452, the court, speaking of the statute, said:

“But while the statute abolished the writ it did not abolish the essentials of the proceeding, which, in nature, remains the same. A writ of error is a new suit, in which original process is issued and served and new pleadings are made up. The assignment of error stands in the place of the declaration, and it is still necessary, in the form of a motion, to allege and show an error in fact, and for the opposite party to have notice. The defendant may, of course, admit the matter alleged and submit the question of error to the court as a matter of law, or may deny the fact, or plead the statute of limitations against the motion. In either case an issue is made up and there miust be a finding and a judgment.”

In Barnes v. Chicago City Ry. Co., 185 Ill. App. 148, opinion by Mr. Justice Graves, is a full discussion of the requirements under this section of the Practice Act, with abundant citation of authorities. Among other things the court said:

“That motion must be in writing. It should show some meritorious right to be enforced, of benefit to the mover. The notice provided by that section is the process. The service of such notice gives jurisdiction of the parties. The errors assigned in the motion take the place of a declaration, and issues may be made up on such assignments of error. The opposite party may demur and thereby form an issue of law or may deny the facts or plead matters in avoidance. Mitchell v. King, supra; Cramer v. Illinois Commercial Men’s Ass’n, supra [260 Ill. 516]. If he does nothing he should be ruled to plead, and if he fails to comply with the rule the court may then proceed to hear and determine the motion, or, more properly, the case, as on default.”

This is the proper practice, and for the failure to pursue the same the order of June 17, 1918, appealed from is reversed and the cause is remanded.

Reversed and remcmded.


author: Mb. Justice McSurely

text:
    May M. Jackman, Appellee, v. Clarence W. Jackman, Appellant.
    Gen. No. 24,696.
    1. Husband and wife, § 217

      —what must be shown to maintain bill for separate maintenance. To maintain a bill for separate maintenance the complainant must show good cause for living separate and apart from her husband.
    2. Husband and wife, § 217

      —what constitutes good cause for wife living apart from husband. Good cause for a wife living apart from her husband, as affording a basis for a bill for separate maintenance, must be conduct on his part as will directly endanger her life, person or health, or such a course of conduct towards her which will necessarily and inevitably render her life miserable, and living as his wife unendurable.
    3. Husband and wife, § 217

      —when separation of wife from husband not without her fault. If a wife leaves her husband voluntarily, or by consent, or if her misconduct has materially induced the course of action on the part of the husband upon which she relies as justifying the separation, it is not without her fault.
    4. Husband and wife, § 264

      —when decree for separate maintenance unsupported by evidence. Evidence held insufficient to warrant a decree for separate maintenance.
    5. Husband and wife, § 217

      —what insufficient grounds for decree of separate maintenance. Dissatisfaction of the wife alone with married life or with the husband, and the opportunity to better herself financially, are not sufficient grounds for a decree of separate maintenance.
    Appeal from the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed March 10, 1919.
    Otto G-. Ryden, for appellant.
    Adams, Childs, Bobb & Wescott, for appellee.

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

   Mb. Justice McSurely

delivered the opinion of the court.

Complainant filed her hill asking for separate maintenance, and upon hearing was awarded a decree, with an amount for the support of the two children and also for solicitors’ fees. Defendant asks that this be reversed.

We are of the opinion that the evidence fails to support complainant’s right to the decree.

By her bill complainant asserted as grounds for the relief sought, cruelty and desertion. The evidence wholly fails to establish cruelty. The circumstances of the two instances of alleged cruelty vaguely appear from the testimony on behalf of complainant and are categorically denied. The chancellor did not find that this charge was proven, and upon the record such a conclusion was inevitable.

The chancellor, however, held as proven that the defendant had deserted complainant and that she was living separate and apart from her husband without her fault. We do not agree with this conclusion. The parties were married in August, 1905, and lived together until about February 18, 1917. Two children were bom of the marriage, a boy and girl. Since the separation the boy has been living with the father, and ■the girl with her mother. Up to the time of her marriage and for some years prior thereto complainant had been employed in a bank. After marriage she and her husband lived together, and seemed to have had the not infrequent experiences of newly married people in keeping the living expenses within the income earned by the husband. It is unnecessary to relate the details of the bickerings and irritating clashes over money matters. Viewing the whole matter, we are inclined to the opinion that the defendant, while not in receipt of a large income, was industrious and faithful to his wife and family and, while frequently in straits, was doing the best he could to give them a comfortable home and surroundings, and with fair success. A home in Oak Park was purchased, and progress made in paying for it. For a good part of this time relatives of the complainant lived or boarded with them, and there is some force in the suggestion that complainant’s fondness for them diminished somewhat her sense of affection for her husband and interest in the mutual problems and life of herself and him. It is patent that complainant was a capable business woman who found her greater comfort in employment in an office than as a housekeeper. It is evident that the larger financial income she received while employed, together with her independence and freedom from domestic anxieties, seemed attractive; probably married life had been found by her to be a disappointment. In the first part of February, 1917, she resumed employment as a bookkeeper in the office of a business concern at a salary of $150 per month. This evidently did not meet with the approval of her husband; it left no one to take care of the small boy, then about 8 years of age. The little girl, without consulting the defendant, had prior to that time been sent by the complainant to an aunt.

Defendant testified that he protested against his wife remaining away from their home, with no one to look after the boy, and was told by complainant that if he did not like this he could get out. On February 18, 1917, defendant went away with the boy for the purpose of placing him in the care of some one. Complainant testified that she expected defendant to return that night, and defendant also testified that he expected, when he had gotten a place for the boy to live, to return to his wife; that he saw his wife a few days later and told her he was coming home, and she answered, “No, you’re not.” The boy has since then been in the custody of the father, who has apparently taken good care of him, placing him, in schools, and while he was sick in a hospital, the father providing a nurse. After this separation in February complainant gave up their apartment and stored the furniture. Defendant thereupon made arrangements to rent another flat, and went to where complainant was employed and asked her to come back and select a place for a new home, but she refused. It is not denied that defendant rented an apartment and made various and many efforts to induce complainant to re-establish their home, but she declined. She testified that she looked at the flat rented by defendant but “was not particularly taken with it. * * * What did I want to go into another home for?” Defendant testified upon the trial that he still wanted his wife to come back, and would make a home for her. A sister of complainant, who lived in their home for 7 years prior to the separation, testified that everything was all right between the parties except the insufficiency of money. Complainant’s own testimony as to the cause of separation was that she “had a chance to get a position as bookkeeper,” and that this caused “a climax.”

In Johnson v. Johnson, 125 Ill. 510, it was held that to maintain a bill for separate maintenance the complainant must show good cause for living separate and apart from her husband, and that such cause must be conduct on his part as would directly endanger her life, person or health, or such a course of conduct towards her which will necessarily and inevitably render her life miserable, and living as his wife unendurable. “Incompatibility of disposition, occasional ebullitions of passion, trivial difficulties, or slight moral obliquities, will not justify separation”; it must also appear that her living apart from her husband is without fault on her part—and by such fault is meant “a voluntary consenting to the separation, or such failure of duty or misconduct on her part as ‘materially contributes to a disruption of the marital relation. ’

“If she leave the husband voluntarily, or by consent, or if her misconduct has materially induced the course of action on the part of the husband upon which she relies as justifying the separation, it is not without her fault, within the meaning of the law. No encouragement can be given to the living apart of husband and wife. The law and good of society alike forbid it.”

To the same effect is Decker v. Decker, 279 Ill. 300. In the light of these principles it is clear that complainant has not shown a case which entitles her to a decree of separate maintenance. Dissatisfaction alone with married life or with the husband, and the opportunity to better her condition financially, are not sufficient grounds.

For the reasons above indicated the decree of the trial court is reversed and the cause is remanded with directions to dismiss complainant’s bill for want of equity.

Reversed and remanded with directions.