text:
    Marguerite Favar, Appellee, v. Riverview Park, Appellant.
    Gen. No. 13,969.
    1. Damages—what evidence not competent to establish. Evidence of the value of an amusement park "privilege” estimated by-guessing at or stipulating upon future uncertain profits, is incompetent. Elements or facts which support the estimate must be given in order to render it competent.

      2. Damages—when loss of future profits should not he awarded. Loss of future profits of a purely speculative nature cannot properly be included in an award of damages.
    3. Mbastjbe op damages—in action for failure to give possession of leased premises. The measure of damages for failure to give possession of leased premises is the difference between the actual rental value and the rent reserved to be paid by the lease. The same rule applies to a farm, a dwelling house, a hotel or business premises. The rule is varied in the case of an established business, in which case the measure of damages would be the difference between the rent and the value of the lessee’s business, which would necessarily include an allowance for profits.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. Wm L. DeWodp, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed October 8, 1908.
    Joseph H. Fitch, for appellant.
    Edward R. Litzinger, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The conclusion reached by the court necessitates a new trial of the cause; consequently the questions of fact involved rest for their solution with the jury before whom the cause may be next tried, or the judge of the County Court, if a trial by jury should be waived. We shall therefore only refer to such portions of the evidence as from its nature involve questions of law.

The basis of this action is the non-performance upon the part of appellant of its undertaking in the following writing;

'‘ Chicago, June 18, 1906.
The privilege for the season of 1906 is granted to Marguerite Favar of St. Augustine, Florida, now of Chicago, to install at her own expense the Princess Corena Show with an appropriate wood front and tent back on the South Pike line next east of Photograph G-allery, and to include the vacant space in the rear of the place hereby granted and in the rear of the present booth space reserved to the occupants of said booths between the Photograph Gallery and Bratwurst Restaurant, providing the sum of one hundred dollars, $100, is paid before possession is taken, and thereafter 25 per cent of the gross receipts, the usual salary of cashier to be selected by the Park company and electricity at cost to the Park.
(’Signed) Wm. M. Johxsox, Secretary.”

On the day of the date of this writing the U. S. Tent & Awning Company sent its check for account of appellee for $100 to appellant, which was afterwards returned when appellant discovered that it was unable to deliver to appellee the plot of ground in the writing mentioned. This $100 was paid, it is contended, not for the contract, or as rent, or as a consideration for the making of the contract by appellant, but for the purpose, as appellant contends, and the proof indicates, to compensate the then occupant of the plot for removing therefrom Ms unprofitable paraphernalia, termed a “Razzle Dazzle,” so that appellee might instal thereon her contemplated “Princess Corena” show.

Appellant did not comply with the terms of its contract for the reason, so it claims, that it could not procure the removal of the so-called “Razzle Dazzle.” Appellee commenced this suit m an effort to recover damages which she claims she suffered consequent upon appellant’s failure to carry out its part of said contract. Appellee contends that the writmg in question is a “privilege,” and proceeded to prove damages upon the theory of the value of such privilege; while appellant contends that the writing is in the nature of a lease of the plot of ground therein described, and that the percentage of receipts fixed as compensation for its use is rent therefor, and that damages for a breach must be measured upon the principles applicable to a failure to give possession under a covenant so to do usually found in leases of realty. We do not regard it as necessarily affecting the rights of the parties or our decision of the controversy, whichever of these two methods are adopted in admeasuring the damages to be awarded, for under either theory the measure of damages must be the samé.

Following the delivery of the contract appellee caused to be ordered material consisting of canvas and lumber sufficient to construct a tent 28x50 with wooden flooring, stage, etc., to cost $1,065, and enough canvas was cut the evening of the same day from which the tent could be constructed. Notwithstanding appellant notified appellee that possession of the land could not be given, work was continued on tent construction for two days, and then it appears from appellee’s proof, the canvas was thrown “on the scrap pile;” but why this canvas should have been discarded in view of the fact that two days subsequent to its abandonment appellee secured a similar plot of land at San Souci Park in which she installed a canvas tent of nearly the same dimensions and constructed of the same kind of canvas in shape and color, the evidence does not disclose. Appellee engaged for the show contemplated to be given on appellant’s premises four young women performers at a weekly salary of $20 each, but these engagements were canceled without expense or other loss to appellee. .Appellee also bought 2,000 descriptive posters costing $20. It may be assumed that the cost of these posters was a loss to appellee. The amount of recovery, however, was predicated upon the value of the contract as a “privilege” and for profits estimated that appellee would have received had appellant let her into possession of the plot of land set out in the contract. Appellee testified that the value of the “privilege” was. $800. Her testimony was purely conjectural and not supported by any fact from which the jury could compute the amount of damages actually sustained. Her testimony on this point was her conclusion only. On objection the same was properly stricken from the record. Appellee’s witness Schwartz testified that the “privilege” was worth $2,000, but failed to state any fact or element from which, his conclusion as to value could be verified. He thought it was worth that amount, but his estimate was purely- speculative. Appellant’s motion to exclude Schwartz’s testimony from the record should have been allowed, and in failing to do so the court committed reversible error. The instruction given to the jury as to the measure of damages was erroneous. The business intended to be conducted by appellee was a new venture and the profits, if any, which might be realized uncertain and purely speculative. In this situation appellee cannot recover on account of expected profits, as there is nothing tangible in the evidence to prove that a profit would have been made. Hair v. Barnes, 26 Ill. App. 580.

The measure of damages for failure to .give possession of leased premises is the difference between the actual rental value and the rent reserved to be paid by the lease. The same rule applies to a farm, a dwelling house, a hotel or business premises. The rule is varied in the case of an established business, in which case the measure of damages would be the difference between the rent and the value of the lessee’s business, which would necessarily include an allowance for profits. Hexter v. Knox, 63 N. Y. 561; Paposky v. Munkwitz, 68 Mo. 322.

But if the business were a new one, there could be no recovery for profits, and in that case the measure of damages would be restricted to those recoverable under the rule first recited. The profits which appellee might have made had she installed her show in appellant’s park are purely speculative. The rule for assessment of damages is thus stated in 1 Sutherland on Damages, p. 111:

“The cardinal rule in relation to the damages to be compensated on the breach of a contract that the plaintiff must establish the quantum of his loss by evidence from which the jury will be able to establish the extent of his injury, will exclude all such elements of injury as- are incapable of being ascertained by the usual rules of evidence to a reasonable degree of certainty. Instances of such uncertain damages are profits expected from a whaling voyage, and the gains which depend in a great measure upon chance; they are too purely speculative to be capable of entering into compensation for non-performance of a contract.”

The profits to be made from a show of the character of the one appellee intended to exhibit in appellant’s park are just as uncertain as those to be expected from a whaling voyage, for both depend very largely for their success upon the weather being fair or foul. As said in Lewis v. Atlas Co., 61 Mo. 534: “In fact, the success of such enterprise depends on so many contingencies that we can conceive of no means of making the necessary proof on which to found a verdict. No rule for such ascertainment can be predicated. Past success in similar enterprises will not do. Conditions may not always remain the same.” This reasoning applies with equal force to appellee’s claim for anticipated profits as well as her attempt to fix upon a value of the contract as a “privilege.”

Appellee is entitled, in no event, to recover more than the actual damages sustained by her by reason of appellant’s breach of its contract with her, if it shall be found to have been guilty of a breach thereof, and such damage must be proven with a reasonable degree of certainty and devoid of all speculative features and free from conjecture.

We think the instruction asked by appellant should have been given, as it contains all the essential elements of damage which appellee is in any event entitled to recover. Its refusal was error prejudicial to appellant.

The judgment of the County Court is reversed and the cause remanded for a new trial conformable to the views here expressed.

jReversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Northwestern Fuel Company, Appellee, v. Western Fuel Company, Appellant.
    Gen. No. 13,971.
    1. Pbactice—how sufficiency of plaintiff’s evidence to sustain action should be raised. In order to preserve for review the question as to the sufficiency of the plaintiff’s evidence, standing alone, to sustain the action, the defendant must move the court at the conclusion of the plaintiff’s evidence for a finding in favor of the defendant.
    2. Pbactice—when propositions of law properly refused. Propositions of law are properly refused which are alien to the law as affecting the facts deducible from the proofs.
    3. Evidence—burden of proof to establish right to discount. A defense to the effect that the defendant is entitled to a discount is affirmative and the burden to establish the same is upon the defendant.
    4. Account stated—what evidence tends to establish. The receipt of itemized statements and the retention thereof for months without objection tends to establish an account stated.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    Harvey Strickles, for appellant.
    Tenney, Coffeen, Harding & Sherman, for appellee; James H. Wilkerson, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This action is indebitatus assumpsit, and the issues rest on the common counts with a bill of particulars filed by plaintiff and the general issue filed by defendant, with a plea of tender of $288.91 before suit and a replication denying tender. The trial was before the learned trial judge, the parties having waived a jury. The claim was for coal sold and delivered. The defense did not rest in a dispute over the amount of coal delivered, but upon two claims: first, that on 3,784 tons of coal defendant was entitled to a deduction of forty cents per ton and to a further discount of five per cent upon the purchase price of 5,968 tons of coal. The finding was in favor of plaintiff in the suxn of $2,136.79, upon which finding judgment was entered.

There is no dispute between the parties as to the prices at which coal was billed to defendant. The only item of dispute between them, aside from the subsequent claim for deduction on certain coal of forty cents per ton and five per cent discount on other coal, was a freight item of $35.65, and this item was conceded by plaintiff to defendant and credited on the amount of the original claim.

Defendant urges as a complete defense to plaintiff’s claim, that under the pleadings plaintiff must prevail, if at all, on the theory of an account stated; that the evidence in chief is insufficient to support the claim upon the theory of an account stated between the parties. We are not inclined to accord our assent to this contention as justified from the probative force of such evidence. Statements were rendered by plaintiff and received by defendant for every shipment of coal. These statements contained the price at which the coal was billed; they were retained by defendant without objection or -complaint as to price charged. The receipt of many of these statements was acknowledged.

It is apparent to us that the evidence in chief, standing uncontradicted, is sufficient to sustain the judgment upon the theory of an account stated between the parties for the coal billed to them in the several accounts rendered. Still, if defendant was desirous of availing of the now claimed defects in this evidence, in the trial court and on appeal, it should have moved, at the time when plaintiff rested its case, for a finding in its favor. Having failed to do so, the question which was before the trial court and is now before us is: All the evidence considered, is plaintiff entitled to recover for the coal sold and delivered at the prices at which it was billed to defendant?

Without reciting the evidence, which we have carefully perused and weighed, we are clearly of the opinion that it sustains the right of the plaintiff to payment for the coal at the prices charged. We are not limited in our investigation to the determination of the single proposition, as claimed by defendant, as to whether the evidence is sufficient to warrant a recovery on an account stated, but on the contrary, it is our duty to determine whether the evidence in the record is of that character which entitles the plaintiff, on the merits of the case so established, to recover the amount charged for the coal delivered. The claim of defendant to an allowance of forty cents per ton on some of the coal and to a discount of five per cent, on all of it, is a substantive affirmative defense, which to be effectual the law cast upon the defendant the burden of maintaining by a preponderance of the evidence.

We agree with the trial court that the evidence falls far short of preponderating in defendant’s favor on this contention. The greater weight of the evidence is to the effect that defendant was to pay for the March and April coal deliveries the price fixed for April coal. This is further substantiated from the fact that the March and April coal was so charged upon the statements received by defendant from plaintiff, and that no objection was made at the time, and that not for several months after their receipt was the counter claim to deduction and discount made. On the contrary, defendant made written acknowledgment of the orders covering the March and April deliveries, which included the price on the basis of the price fixed for April coal. And, furthermore, defendant at the request of plaintiff sent a statement of coal received, with the price attached, being the same at which the coal was billed to it for March and April, and thereafter subsequent deliveries at the same price were acknowledged without complaint or protest. A statement in evidence rendered by plaintiff to defendant as late as January 31, 1907, bears an indorsement in the handwriting of defendant’s bookkeeper, “W. F. Co. bal. $2,110.91,” which was the amount claimed on this statement, less the conceded freight item of $35.57. We regard this, in the light of the other proof, as highly significant—the force of which defendant cannot escape.

The claim of defendant for a discount of five per cent, it has equally failed to substantiate by its proof.

The finding of the trial judge, in a submitted cause, is as to the facts entitled to the same weight as the verdict of a jury, and the court of review cannot reverse such finding unless it clearly appears that the finding of fact is manifestly contrary to the probative force of the evidence. Baumgartner v. Bradt, 207 Ill. 345; Burgett v. Osborne, 172 ibid, 227.

Because other items than those in controversy were upon the statements rendered, in no way detracted from their constituting, as to such controverted items, an account stated, in view of no objection being made to any of such items for many months after the receipt of the statements containing them. In such circumstances a defendant will be held to have acquiesced in them. Green v. Smith, 21 Ill. App. 198.

The propositions of law tendered by defendant were properly refused. They were alien to the law as affecting the facts deducible from the proofs. Pratt v. Davis, 224 Ill. 300.

Upon the theory that the plaintiff did not establish between the parties, by its testimony in chief, an account stated, which, so far from conceding we deny, yet plaintiff on all the proof in the record is entitled to the judgment • it obtained under the doctrine announced in Sandoval v. Main, 23 Ill. App. 395, where the court say:

“The action of indebitatus assumpsit is in the nature of an equitable one; and if the plaintiff should fail to sustain his particular theory of the case, yet if the testimony of the defendant should show, although introduced upon -a different view of the case, in connection with the other testimony in the case, that the defendant was indebted to the plaintiff upon any of the counts in the declaration, it would be the duty of the court to give judgment accordingly without regard to the source of the evidence from which the real rights of the parties were made manifest.”

The finding and judgment of the trial court does justice between the parties, and finding no error in the record the judgment of the Municipal Court is affirmed.

Affirmed.


author:
Mr. Justice Holdom
      Brown, J.,

text:
    George P. Blume, Appellee, v. Bereda Manufacturing Company, Appellant.
    Gen. No. 13,975.

      Attachment—what -fraudulent conveyance of property. The execution and delivery of a chattel mortgage (with the understanding that it shall not be recorded) covering personal property in the possession of the mortgagor, is fraudulent and constitutes ground for attachment.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    W. A. Hamilton, for appellant.
    Frederick A. Brown, for appellee; Wm. R. T. Ewen, Jr., of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff sued defendant as the indorsee and "holder of its promissory note for $250, dated December 21, 1903, and payable twelve months after date, to the order of John L. Van Dolah, with interest at five per cent per annum. This note was indorsed and delivered to plaintiff by the payee for a valuable consideration before maturity.

The common counts and a special count declaring on the note constituted the declaration, to which defendant pleaded failure of consideration at the time of the assignment and delivery of the note to plaintiff, averring such failure was known to plaintiff at the time he received the note from the payee by indorsement, like failure as to all but $50, and a set-off against the payee in the note to the amount of $500. Thereafter a writ of attachment was sued out in aid of the suit in assumpsit, under a claim that defendant had within two years fraudulently conveyed or assigned its effects, or a part thereof, so as to hinder and delay its creditors, and during the same time had concealed or disposed of its property, or a part thereof, so as to hinder and delay its creditors, and was about fraudulently to conceal, assign and otherwise dispose of its property or effects, or a part thereof, so as to hinder and delay its creditors. The attachment writ was levied upon personal property and defendant released the levy by giving a forthcoming bond. Defendant joined issue on the attachment by filing a plea traversing the material averments of the affidavit under which the writ was sued out.

The cause was tried before the court without a jury, and the finding of the court upon which judgment was entered assessed plaintiff’s damages in the sum of $292.42, the amount due upon the note for principal and interest, and found the issues in the attachment in favor of plaintiff; from which finding and judgment defendant seeks this review of the record.

It appears from the proofs that one John L. Van Dolah owned a secret process for the manufacture of a compound useful, so it is said, for cleaning wall paper, fresco walls, etc., called the “Excelsior Elastic Wall Cleaner;” that plaintiff was interested in the formula embodying such secret process and the business conducted by Van Dolah under the name of “Excelsior Manufacturing Co.” Plaintiff’s interest was, he contends, limited to the advancement of money to Van Dolah which Van Dolah used in this business enterprise. The note in question was given by defendant to Van Dolah as part consideration for imparting to it the ingredients of the secret process, also for an assignment of the good will of Van Dolah and all his interest in the business conducted by him under the name of “Excelsior Manufacturing Co.,” he to furnish a release from plaintiff of any interest which plaintiff might have in such secret process.

Van Dolah fulfilled his part of the agreement, including the furnishing of plaintiff’s release of any interest he might have in the said secret process. In a settlement between plaintiff and Van Dolah the note in question was, long prior to its maturity, assigned and delivered to plaintiff. It is now insisted that plaintiff was a partner with Van Dolah in the business of wall paper, etc., cleaner; that the formula was worthless, because the compound from it would not keep, and that it was sticky and otherwise unusable for cleaning purposes, and that as a consequence of this condition the consideration of the note failed; that plaintiff is chargeable with knowledge of these facts, and is not to be regarded as an innocent holder for value before maturity, and that the same defenses are available to -defendant against plaintiff, with like effect as if the note were still in the hands of Van Dolah, the payee.

There is some conflict in the evidence, hut we are satisfied that the probative force of it preponderates in favor of plaintiff, that plaintiff was not a partner with Van Dolah in the business carried on in the name of the “Excelsior Manufacturing Co.,” but that from the time the note came to his possession he was an innocent holder for a valuable consideration. This being the conclusion to which the trial court arrived and to which we have also come, the defenses interposed, however available as against Van Dolah, are impotent as against plaintiff.

It is not a matter of serious controversy that defendant executed and delivered a chattel mortgage to one Frieda Brehme conveying the stock of goods, among other things kept in defendant’s store for sale at retail, with the understanding that the chattel mortgage should not be recorded. This understanding the evidence shows was carried out. During the time the debt secured by the chattel mortgage remained unpaid, there was no visible change in the business of defendant. Goods were sold from the stock the same after the mortgage was given as before, with the knowledge and consent of the mortgagee.

That such a mortgage is fraudulent and void as against creditors and subsequent purchasers for value, if any, of the mortgaged property, is the uniform and uninterrupted conclusion of the courts of review of this state. To the same effect are the decisions of the federal courts and the rules laid down by text writers upon this subject. Such a lien is fraudulent because it is secret and lures the uninformed and innocent creditor to give and part with his property, when he would not do so had he knowledge of the lien. Such liens are a menace to business and the mercantile world, and will not be tolerated by the courts where the interests of innocent third parties intervene. The authorities are numerous; we content ourselves by citing a few: Haas v. Sternbach, 156 Ill. 44; Forest v. Tinkham, 29 ibid. 141; Frank v. Armour, 50 ibid. 444; Barchard v. Kohn, 157 ibid. 519; Dunning v. Mead, 90 ibid. 376; McNeill v. Plows, 83 Ill. App. 186; sec. 247 Cobby on Chattel Mortgages; sec. 234 Wait on Fraudulent Conveyances; Ferguson v. Johnson, 36 Fed. Rep. 134.

The finding and judgment of the trial court on both the assumpsit and attachment issues are sustained by the proofs and sanctioned by the law of the state, consequently the judgment of the Superior Court must be and it is affirmed.

Affirmed.

Brown, J.,

concurring: I concur in this decision, but as to the attachment issue I do so on the ground only that from the facts of this case reasonable grounds to believe in a fraudulent intent in fact appear.

I am not prepared to hold that an unrecorded chattel mortgage without change of possession is in itself a sufficient ground for attachment under the statute, although it may be constructively or legally fraudulent as to creditors and subsequent purchasers for value.


text:
    John H. Fitzgerald, Appellee, v. Chicago & Erie Railroad Company, Appellant.
    Gen. No. 13,990.

      Verdict—when set aside as against the evidence. A verdict manifestly contrary to the probative force of the evidence will be set aside on appeal.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed October 8, 1908.
    W. O. Johnson and Gale & Johnson, for appellant.
    Coburn & Case, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of $1,990, entered on the verdict of a jury as compensation for personal injuries suffered by appellee as a result of the claimed negligence of appellant.

Appellee’s contention is that while a passenger upon the train of appellant, and after having paid his fare, he was wantonly thrown by the servants of appellant from the train while it was in motion, as a result of which he was injured.

In the conclusion to which we have arrived upon the facts in evidence, it becomes unnecessary for us to discuss in this opinion any of the questions raised by counsel other than whether the verdict and judgment are supported by the evidence, or so manifestly contrary to its probative force that it is our duty to reverse the judgment of the trial court.

Appellee’s narrative of the occurrence is, that while standing upon the platform of the train of appellant as it was passing in a southerly direction on Thirty-seventh street, the conductor and brakeman came out upon the platform, assaulted him and threw him off the train about the time it reached Fortieth street, and while the train was proceeding south at a rapid rate of speed.

But one witness, James Dowling, testified in an attempt to substantiate the evidence of appellee. However, his testimony utterly fails to do so on the crucial point. Dowling saw the accident, but he did not see any one throw appellee off the car. He testified he saw other men at the car door, but none on the platform. It stands to reason that if appellee had been thrown off the platform by the conductor and brakeman, as he claims, these servants must have been on the platform of the car when they did such a dastardly act. If they were, Dowling could not help but see them. On cross-examination Dowling testified that appellee stepped off the side of the car, walked right out on the platform, stepped down off the step and got rolled. So far from Dowling’s testimony lending any corroboration to appellee’s claim of being thrown off the car by the conductor and brakeman of appellant, it discredits it. This evidence is not confirmative; it is flat contradiction.

Arrayed against this testimony is that of the conductor and brakeman, who on every essential and material point contradict the narrative of the occurrence by appellee. They both deny having seen appellee at all until he had fallen from the train, and then only on the train stopping in response to the alarm given following the occurrence. These witnesses positively and unequivocally testify that they saw appellee for the first time after he suffered the injuries consequent upon his falling from the train. Another of appellant’s witnesses, McCall, who saw the accident from the Thirty-ninth street station of the Chicago & Eastern Illinois Eailroad, testified that when he first saw appellee he was standing between two coaches and fell off while the train was going, without slacking its speed, at Fortieth street. This witness does say that from where he stood it was impossible for him to tell whether appellee was pushed off, jumped off, or fell off, yet he is positive in his statement that no persons were on the platform at the time the train passed him at Thirty-ninth street.

Dr. Parschie testified that he attended appellee at the Provident Hospital where he arrived for treatment, and that appellee told him the train was going too fast when he attempted to get off, and that he fell on his head, and that the accident resulted from his own fault. A written statement signed by appellee was also received in evidence. Its statements were substantially in accord with Dr. Parschie’s evidence, including the statement that the train was going too fast when he attempted to get off, that he fell on his head, and that the accident was his own fault.

It would seem that comment as to the probative force of the foregoing evidence is superfluous. The burden of proving that the accident was the result of appellant’s conductor and brakeman forcing appellee from the train, as charged in the declaration, rested on appellee, and he failed to maintain the burden which the law so imposed. The countervailing proof is overwhelming in contradiction of appellee’s contention. Courts of review should give great weight to the finding of a jury, and ought not to disturb such finding unless not sustained by a clear preponderance of the evidence or manifestly contrary to its probative force. But where there is a conflict in the evidence, and such evidence clearly preponderates in favor of the party against whom the verdict is rendered, then such verdict is in law manifestly against the weight of the evidence, and in such a condition it is the duty of a court of review to reverse the judgment entered thereon. Bradley v. Palmer, 193 Ill. 15; Peaslee v. Glass, 61 Ill. 94.

It is the province and duty of this court to see to it that no judgment he allowed to stand upon the verdict of a jury not resting upon a preponderance of the evidence, hut which is plainly the result of the whim or prejudice of the jury rendering it.

• Appellee failed to establish his claim, counted upon in his declaration, by a preponderance of the evidence, and the verdict rendered is contrary to its probative force.

The judgment of the Superior Court is reversed and the cause remanded for a new trial in conformity with the views here expressed.

Reversed and remanded.


text:
    Catherine Duffy, Appellee, v. George Frankenberg et al., Appellants.
    Gen. No. 13,996.
    1. Conspiracy—when, to obtain judgment, not actionable. A judgment not void for want of jurisdiction cannot be collaterally attacked and while such a judgment remains in full force an action charging conspiracy to obtain it does not lie.
    2. Conspiracy-—when action at law for, does not lie. A civil action cannot be maintained for a mere conspiracy. Damages of an actual and not punitive character must flow from the conspiracy before the action can be maintained. When actual damage is proven to have been suffered, then punitive damages may also be allowed according to the particular aggravating character of the conspiracy demonstrated by the proofs.
    3. Damages—when punitive, will not be awarded. In the absence of proof of actual damages, the assessment of punitive damages is not justified.
    4. Service of process—when return cannot he impeached. Return of service cannot be impeached by the unsupported testimony of the defendant in the writ, or collaterally by any number of witnesses.
    Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed October 8, 1908.
    Walter A. Lantz, for appellants.
    George E. Gorman, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action of trespass on the case brought by the plaintiff against the defendants, George Frankenberg, John E. McDonnell, P. B. Tierney and Willi am J. Buddy, charging them with conspiring together to injure plaintiff by obtaining her property to satisfy a judgment fraudulently obtained against her. Buddy was not served with process and did not appear, so that the cause proceeded to trial against Frankenberg, McDonnell and Tierney, before the court and a jury. The court instructed the jury to find McDonnell not guilty, which they did, and at the same time returned a verdict of guilty against Frankenberg and Tierney, assessing plaintiff’s damages at $1,500. After overruling motions for new trial and in arrest of judgment, the court entered judgment upon the verdict. Defendants made the usual objections and preserved the customary exceptions to the actions of the court culminating in the judgment, and prayed for, obtained and prosecute this appeal seeking a reversal thereof.

The material facts, briefly stated, are about as follows: Frankenberg was a loaner of money, mostly to impecunious and unthrifty salaried people. The son of the plaintiff, James P. Duffy, belonged to this class, and in consequence got into the clutches of Frankenberg when he borrowed of him $30, giving his notes for the aggregate sum of $33. These notes were indorsed by one Curley, and young Duffy reciprocated the favor by indorsing Curley’s note to Frankenberg, Curley likewise being of the impecunious class who borrowed from Frankenberg. James P. Duffy after borrowing the $30 removed to New York, and as he was a man of no financial substance, Frankenberg stood in imminent danger of losing the money which he loaned him. Confronted with this threatened loss, he seems to have sought a way out of it by endeavoring to get Duffy’s mother, the plaintiff, who was a person of some fortune, to pay her son’s debt to him. He testifies that Mrs. Duffy called upon him to ascertain the amount of her son’s indebtedness, and on being informed that it was $33, promised to pay it. As Mrs. Duffy did not pay her son’s debt, Frankenberg brought suit before the defendant McDonnell, a Cook county justice of the peace, whose court was situated in a remote part of Chicago. Tierney was the constable who served the summons, although Mrs. Duffy denies both the promise to pay her son’s debt and the service upon her of summons by Tierney in the Frankenberg suit. While she admits that the constable was at her house and informed her in relation to the pend-ency of the suit, yet she denies that he served her with process, but on the contrary states that after she had denied her promise to pay and all liability to Tierney, he left, saying, in effect, that there was no case against her. The summons, however, was returned served, and after a continuance, which Frankenberg claimed was granted at the request of Mrs. Duffy by telephone, a judgment by default was taken on her non-appearance at the time to which the cause was continued, and Frankenberg then swore out an immediate execution upon the grounds permitted by statute. After judgment was entered, and on July 10, 1904, plaintiff left Chicago for New York, from which port four days thereafter she took steamer for Europe to "be gone two months or more. Luddy, a constable, had the execution and called at plaintiff’s residence to demand payment after she had left Chicago. A daughter of Mrs. Duffy, Mrs. Coffey, was in possession of her mother’s residence, and to her Luddy said that he had come -to levy on her mother’s furniture under the McDonnell execution. He then had a wagon and sundry men with him for the purpose, as he stated, of taking away Mrs. Duffy’s furniture if the amount due on the execution was not paid. After consultation with her sister, Mrs. Kerwick, one of them paid the amount demanded, $39 and some cents, number not appearing from either Mrs. Coffey’s or Mrs. Kerwick’s evidence.

It cannot be controverted on the proof of plaintiff found in this record, that the attack upon the judgment of Frankenberg v. Catherine Duffy obtained in the justice of the peace court of McDonnell is collateral and not direct. Judgments not void for want of jurisdiction are not open to collateral attack in the manner attempted in this case, and no recovery of damages can be had for a conspiracy to obtain such a judgment while the same remains in full force and unreversed. As applied to the case at bar, before this action of conspiracy can be maintained, the judgment before Justice of the Peace McDonnell must in a direct proceeding be overcome, vacated and adjudged to be reversed as voidable on account of the fact, if such be the fact, that Tierney’s return of service upon the summons is false. In its present situation the presumptions of the law are in favor of the validity of the judgment, and such presumptions continue until overcome by an adjudication impeaching it in a direct proceeding attacking it.

A judgment rendered by a court having jurisdiction of the parties and the subject-matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment in respect to its validity, verity or binding effect, by parties or privies in any collateral action or proceeding. Harris v. Leter, 80 Ill. 307; Kern v. Strasberger, 71 ibid. 303; Kanorowski v. The People, 113 Ill. App. 468.

A judgment entered by default, the court having jurisdiction, as in the case at bar, is as conclusive against collateral attack or impeachment as a judgment in any other form. French v. Baker, 21 Ill. App. 432.

The evidence fails to disclose any actual damage suffered by plaintiff flowing from the conspiracies alleged in the declaration. She paid no money or other thing of value to satisfy the demands of Constable Buddy for payment of the execution upon the .judgment obtained in the court of McDonnell, J. P. Neither did she suffer any actual damage by the levying of the execution upon her property, for no levy was made or attempted. The amount due on the execution was paid by the daughters of plaintiff at a time when she was beyond seas. The payment was not made to release a levy, but to forestall one being made. It is therefore clear that the assessment of damages is all of a punitive nature. Without proof of actual damage, vindictive or punitive damages cannot be allowed. This is the trend of all the modern decisions on this subject. Martin v. Leslie, 93 Ill. App. 44.

A civil action cannot be maintained for a mere conspiracy. Damages of an actual and not punitive character must flow from the conspiracy before the action can be maintained. When actual damage is proven to have been suffered, then punitive damages may also be allowed according to the particular aggravating character of the conspiracy demonstrated by the proofs. Doremus v. Hennessy, 62 Ill. App. 391.

There is no evidence in this record tending to show that any of the defendants but Frankenberg had any knowledge of the transaction between the latter and the Duffys. McDonnell had none, so far as the record shows, when he issued the summons. Tierney had no information regarding the matter at the time the summons was delivered to him for service, although he learned Mrs. Duffy’s version of the matter at the time he claimed he served the summons upon her. Luddy, who had the execution for collection, had no knowledge of the facts of the transaction between the parties to the execution, so far as we can gather from the record, prior to or at the time he proceeded to collect the amount of the execution in the manner usual in such cases, sanctioned by the statute. There being no proof in the record tending in the slightest degree to establish the charge that the defendants conspired together to procure an unlawful or fraudulent judgment against the'plaintiff, the case falls at its very thresh-hold.

That the defendant Frankenberg attempted to obtain an undue advantage of plaintiff in suing her for the debt of her son, which, as he claims, she had promised verbally to pay, and which Frankenberg must be presumed to know was not enforceable, as being a promise to pay the debt of another, and barred by the Statute of Frauds because it was not in writing, appears from his own evidence. That Tierney served the summons upon Mrs. Duffy, we are much inclined to believe from all the evidence of the parties at the time Tierney admittedly attended at Mrs. Duffy’s house for that purpose, for while Tierney, as is natural with men of his Celtic blood, was gracious to the ladies and careful of their feelings and anxious to spare them as much annoyance as possible compatible with the discharge of his official duties, he undoubtedly was sufficiently careful, in as unostentatious and inoffensive manner as possible, to make legal service of the summons on Mrs. Duffy before he left her house. He has solemnly so certified in his written return of the writ, and such return cannot be impeached by the unsupported testimony of the defendant in that writ, or collaterally by any number of witnesses.

Our conclusion is that the plaintiff cannot maintain her action in its present form, and that the judgment is not only manifestly contrary to the weight of the evidence, but finds no support in it. The judgment of the Superior Court is therefore reversed, without remanding the cause.

Reversed.


text:
    In the Matter of the Estate of Nellie German, deceased. Myron W. Whittemore, Appellant, v. William Coleman et al., Appellees.
    Gen. No. 14,009.
    1. Laches—when heirs not guilty of. The time for heirs to object to the acts and doings of an administrator is when such an administrator renders his final account; the delay intervening the time for filing such account does not constitute laches.
    2. Administration of estates—when allowance of claim does not justify payment by administrator. While an administrator will be protected, even as against the heirs, in the payment of a claim duly allowed and ordered paid in due course of administration, though it subsequently develops that such claim was not proper to be allowed for payment, yet this rule is restricted to such claims allowed and paid in good faith and without fraudulent connivance of an administrator having knowledge at the time of payment that such claim should not have been allowed.
    3. Administration of estates—when attorney’s fees not allowed administrator. Upon final settlement attorney’s fees will not be allowed to the administrator who is himself an attorney, nor another claiming to have acted as attorney for such administrator, in the absence of proof of services rendered.
    4. Administration of estates—when compensation denied administrator. Compensation should be denied to an administrator who wrongfully permits a waste or illegal diversion of estate assets.
    5. Judgments—when court of probate may vacate. The Probate Court has jurisdiction to vacate a judgment rendered upon a claim at any time during the administration of the estate upon and after the discovery of fraud in virtue of which it was caused to be entered.
    6. Jurisdiction—of courts of probate in administration of estates. Courts exercising probate jurisdiction in this state possess all the powers of a court of equity in the settlement of final accounts of any of its administrative officers, and may vacate judgments or any other order fraudulently or collusively procured to be entered.

      Objections to administrator’s report. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Wishes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    W. H. Richardson, for appellant.
    Williams, Lawrence, Welsh & Green, Ashcraft & Ashcraft and Andrew L. Winters, for appellees; J. D. Welsh and Raymond M. Ashcraft, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

The descent of the property involved in this estate embraced two generations of illegitimates, but with these peculiar and infrequent conditions, notwithstanding they have been provocative of considerable litigation, we are not concerned on this appeal. The questions before us are encompassed within the final account of appellant as administrator of the estate of Nellie German, deceased, one of the illegitimates, and the objections filed thereto by those persons who have been solemnly adjudged by the Probate Court to be her heirs at law, the correctness of which adjudication, while once disturbed at nisi prius, has been twice affirmed on review and is now settled beyond controversy. Coleman v. Swick, 120 Ill. App. 381; Swick v. Coleman, 218 Ill. 33.

The evidence given and received in support of the account as rendered and that of the objectors against it, constitute all the matters involved in this review. It remains for this court to determine whether, under these proofs and the law governing and controlling it, the Probate and Circuit Courts of Cook county have rendered correct judgments.

At the threshold of our review we are confronted with a record which discloses that the questions of fact have been decided by both the Probate and Circuit Courts contrary to the contentions of the appellant. In the absence of any error of law it is incumbent upon ns to affirm the decree of the Circuit Court unless we can say that such decree is manifestly contrary to the greater weight of the evidence. It is the settled law that the finding of fact by the trial court shall upon review have the same force and effect as the verdict of a jury. A careful perusal and a thoughtful weighing of the evidence have resulted in bringing our minds to the conclusion that the proof is ample to sustain the findings reached by the Probate and Circuit Courts.

The errors assigned and urged upon us in argument resolve themselves into the following: That the administrator’s account should not have been surcharged with the following items: The amount paid claim of Jennie Swick; the amount charged as child’s award; the credits asked for administrator’s and solicitor’s fees.

The claim of laches made by appellant as against appellees as heirs at law is not well taken. It is the theory of the law that an administrator in a measure represents in his official capacity all parties interested in the assets of the estate, both creditors and heirs, during the period of administration. Until the time comes for the rendition of the final account of the administrator, the law does not require the heirs to take notice of the doings of the administrator. Their right to object is at the time when such administrator, through his final account, discloses his actions and dealings with, the estate. The burden is upon him to maintain by proof the items entering into his account, as being just and proper, whenever the heirs, after notice of its filing, shall in apt time file objections thereto. The final account was filed March 10, 1906. The objections of appellees were filed thereto and a final order adjudicating the matters involved in such objections was entered on April 10, 1906. From the foregoing it is clear that appellees acted promptly in objecting when the time for so doing arrived, and consequently are not chargeable with laches.

While an administrator will be protected, even against the heirs, in the payment of a claim duly allowed and ordered paid in due course of administration, though it subsequently develops that such claim was not proper to be allowed for payment, yet this rule is restricted to such claims allowed and paid in good faith and without fraudulent connivance of an administrator having knowledge at the time of payment that such claim should not have been allowed. It is likewise the law that the Probate Court is without jurisdiction to vacate a judgment at a term subsequent to the one at which it was rendered, except for fraud, and then at any time during the administration of the estate after the discovery of the fraud in virtue of which it was caused to be entered. But appellant argues that if he was guilty of fraud in the allowance and payment of the Swick claim, such conduct could only be impeached in a court of equity, and cites Anderson v. Anderson, 178 Ill. 160, to sustain such contention. But the bill in the Anderson case was filed after the settlement of the estate, although the same matters sought to be impeached in the equity suit had been unsuccessfully urged in the estate matter in the County Court.

Courts exercising probate jurisdiction in this state possess all the powers of a court of equity in the settlement of final accounts of any of its administrative officers, and may vacate judgments or any other order fraudulently or eollusively procured to be entered. Schlink v. Maxton, 153 Ill. 447.

It is not open to doubt but that the Probate Court has jurisdiction to do all things necessary or essential to the end that justice may be done between the heirs and the administrator upon the settlement of a final account, and full equitable powers are vested in the Probate Court for the accomplishment of that purpose. Wherever the right has been challenged in this state, the courts have conceded the possession of the power. In re Corrington, 124 Ill. 362; Whitney v. Peddicord, 63 ibid. 249.

The case of Marshall v. Coleman, 187 Ill. 556, is very instructive on every important and controlling feature of the case at bar. It is conclusive both on fact and legal principle, and is as near in all its pertinent features to the present case as one case .ordinarily can be to another. Both the Probate and Circuit Courts proceeded in accordance with its rulings, and their conclusions ought not to be disturbed if the facts in the record support such conclusions.

The Probate, Court in the first instance and the Circuit Court on appeal recast appellant’s final account by eliminating therefrom the following items:

First. The amount paid Jennie Swick on her claim proved and allowed by the
Probate Court ............................................. $1078.13
Second. Amount credited as payment to himself as guardian of Myrtle J. German for minor’s award.............„................ 550.00
Third. Amount credited as paid Arthur
W. Fulton for legal services...................... 600.00
Fourth: Amount retained by appellant
for Administrator’s commission.............. 568.00

The evidence conclusively demonstrates to our minds that appellant sought fraudulently to make an unlawful personal profit and gain to himself from the assets of the estate he was charged in law prudently to conserve, and out of which he could make no profit to himself except such fees for his services, permitted by law, to be fixed by the court.

The testimony of the widow of Dr. Gibbs, that appellant and her husband stated that after they had satisfied Jennie Swick with a home, they would divide the estate between them, is indicative of an intention of appellant to unlawfully acquire for himself a part of the estate entrusted to his keeping and to divert the remainder to a person not entitled to any of it. When Jennie Swick presented her claim for the support of Myrtle J. German in a sum less than $100, appellant, in pursuance of the purpose so formed to illegally acquire for himself a part of the estate, induced Jennie Swick to swell the amount of her claim to $1,078.13, and in fraud of the rights of the heirs and contrary to his duty, procured the claim for the latter amount to be allowed by the Probate Court. If the judge of the Probate Court had been apprised of the facts in relation to that claim, it would not have been allowed for the sum demanded. The claim in its increased amount was allowed with the written consent of appellant. There was clearly fraud and collusion on the part of appellant in securing such allowance, and notwithstanding there was a formal order, made by the court on him to pay it, nevertheless he must be held to have known that if at the time of the application for that order he had informed the court of the truth as to the way in which the claim was concocted, and of the proper amount in fact due Jennie Swick, the court would not have ordered appellant to pay it. Appellant was guilty of fraud in suggesting an increase of the amount of the claim and in consenting to its allowance for the increased amount, and likewise guilty of fraudulent conniving in its payment at the time he paid it. For although the claim had been fraudulently allowed, it could not have been paid but for appellant’s unlawfully conniving to have the order entered directing him to pay it. Such order so fraudulently procured will not protect appellant in making the payment. He must be held to the responsibility which the law casts upon him consequent upon these fraudulent actions.

The retention by appellant of $550 out of the estate for minor’s award as guardian of the estate of Myrtle J. German was a gross fraud. In the first place, the judge of the Probate Court was imposed upon when the allowance of a minor’s award was made. Myrtle J. German died September 22, 1898; the award was not allowed until May 29, 1899, and charged in the final account as of the day of its allowance. While it is the fact that the present heirs would not suffer any loss—with the exception of a small sum for commissions to appellant—by reason of the allowance and payment of the minor’s award, still that fact does not relieve appellant from the consequences of his fraudulently imposing upon the Probate Court in procuring the award to be made. However, his conduct in this matter becomes significant as one of a number of actions, all unlawful, as showing an intent on appellant’s part to impose upon the Probate Court in procuring orders and allowances which would not have been permitted had appellant disclosed the true condition of affairs to the court. This fraudulent conduct was intended to result in his personal profit out of the assets of the estate. Appellant is an attorney and, lacking proof to the contrary, it will be presumed that he performed all services of a legal nature in the estate of which he was guardian and administrator. The abstract discloses that Arthur W. Fulton was an attorney occupying the same office as appellant. There is no evidence that Fulton ever rendered any legal service for appellant in his official capacity in connection with the German estate. The disallowance of the charge of $600 in the final account, for legal services stated to have been rendered by Fulton, was, in view of the absence of proof that any such service was rendered, proper.

Compensation, within the statutory rate, is allowed administrators for the faithful discharge of their duties. When it appears, as in this case, that the administrator has fraudulently diverted the assets of the estate and, with third parties, sought to deprive those entitled to share in the estate of a considerable portion of their inheritance, it is but the exercise of a sound discretion reposed in Probate Courts to deny a defaulting administrator, or an administrator who wrongfully permits a waste or illegal diversion of estate assets, any compensation or remuneration whatever. Askew v. Hudgens, 99 Ill. 468. Appellant also unduly, and we think unnecessarily, delayed making his final account to the Prohate Court. Letters were granted to appellant nearly eight years before he filed this account. There is nothing in the record excusing such delay, nor is any reason urged in argument in an attempt to justify it.

The Probate Court was right in the exercise of its judicial discretion in denying appellant the allowance requested for services as administrator, and in refusing to make any allowance at all, and the Circuit Court did not err in following the same ruling and disallowing the claim made for administrator’s services. In re Estate of George Wincox, 186 Ill. 445.

The decree of the Circuit Court is without error, and it is therefore affirmed.

Affirmed.


text:
    Sara N. Glass, Appellant, v. Chicago Union Traction Company et al., Appellees.
    Gen. No. 14,022.
    1. Peesonal injubies—upon what recovery must he predicated. In actions for the recovery of damages for personal injuries resulting from the negligence of the defendant, the right to recover is limited to the acts of negligence charged to he the cause of the injury suffered.
    2. Vaeianoe—what constitutes fatal. Proof that the car “began to run away quick” is not identical to starting and moving “with a sudden jerk” and such a variance is fatal.
    3. Appeals and bebdes—when rulings upon evidence and instructions will not reverse. If a peremptory instruction would have been justified in favor of the successful party the action of the trial court in giving erroneous instructions and in admitting incompetent evidence will not reverse.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.

      Brady & Levy, for appellant; C. Stuart Beattie, of counsel.
    John A. Rose and Frank L. Kriete, for appellees; W. W. Gurley, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on the case for personal injuries suffered by plaintiff while a passenger upon a car operated by the defendant, Chicago Union Traction Company, as the result of negligence alleged to be imputable to defendants. The trial before court and jury resulted in a verdict and judgment for the defendants. Plaintiff seeks a review of the record and asks a reversal of the judgment.

The declaration charges that defendants were negligent in that on the arrival of its car at Twelfth street and Lawndale avenue, and after the car had stopped for the purpose of permitting passengers to alight therefrom, and while plaintiff was in the exercise of due care and caution for her own safety and in the act of alighting from the car, the defendant, by its servants in charge of the car, negligently, wrongfully and carelessly started and moved the car with a sudden and violent jerk, by reason whereof the plaintiff was thrown to the ground and was severely injured in a manner particularly set forth.

It is elementary that in actions for the recovery of damages for personal injuries resulting from the negligence of a defendant, the right to recover is limited to the acts of negligence charged to be the cause of the injury suffered. Such proof cannot in any case be dispensed with. Without such proof there can be no recovery.

The record shows an entire absence of proof of the particular negligence charged as resulting in the accident and injury to plaintiff. Nor is there any proof of acts which constitute negligence from which the accident to plaintiff can be charged. The allegation of negligence is that the car started and moved “with a sudden and violent jerk.” We have scanned the record in vain for evidence supporting this charge. As to the occurrence the witness Wilkins testified: “I was looking out of the window and I saw the car come, going west on Twelfth street, and it stopped for a second or two, a short while, and then threw off, or somebody fell off. The car stopped and then went on again. That is all I saw of it.” The testimony of plaintiff on this point, found in the abstract, is as follows: “When I tried to get off I got one foot on the step, the car begins to run away quick. I got throwed off the car.”

Miller testified: “I saw the car come to a standstill and then it started again. Then the lady was thrown off the car. * * * She fell from the rear platform.” On cross-examination Miller further testified: “When the car passed me I was on the sidewalk. The car did not stop, it kept right on going. ’ ’

This constitutes all the testimony covering the movements of the car and of plaintiff disclosed by the abstract. It will be observed that all of this evidence, with every reasonable inference which can be indulged from it, is insufficient to sustain the averment that the car started and moved with a sudden and violent jerk. The variance between the allegation of negligence and the proof is fatal to a recovery. It is patent that evidence that the car “began to run away quick,” is not tantamount to starting and moving “with a sudden jerk.” No negligence can be predicated on a car’s beginning to “run away quick.” It may have so run smoothly and without any violent motion or jerk, for aught that appears to the contrary. To “run away quick” is no more definite expression than to. run “very fast,” and as said in Chicago Union Traction Co. v. Duckstein, 136 Ill. App. 389, so we say now, for it is equally applicable: “The expression 'very fast’ used by the witness is vague, indefinite and meaningless. Unaccompanied by other and more definite evidence, it does not tend to prove negligence. ’ ’

The instructions to the jury on the crucial question, proof of the negligence charged, were in accord with precedent, for as said in Traction Co. v. Rarup, decided in this court November 28, 1904, and not reported, “The burden of proof is not upon the defendant to show how the plaintiff came to fall. If the preponderance of the evidence does not show that he fell by reason of the car being negligently and suddenly started and moved in manner and form as charged in the declaration or some count thereof, then the plaintiff has failed to make out his case under the declaration in this case.”

Instruction 13, given at the instance of defendants, is open to much of the criticism made by plaintiff’s counsel, and the testimony of Moriarity, appellees’ investigator, was inadmissible, and the motion of appellant to exclude it should have been granted. But neither of these errors in any way affected the result to plaintiff’s prejudice. The trial judge would have been justified in granting defendants’ motion, made at the close of plaintiff’s ease, to instruct the jury to find a verdict in defendants’ favor, for as the case then stood a verdict for plaintiff could not have been maintained.

The judgment of the Circuit Court is without reversible error, and it is affirmed.

Affirmed.


text:
    Kathryn E. Reifschneider, Appellee, v. Walter E. Reifschneider, Appellant.
    Gen. Nos. 14,040 and 14,041.
    1. Maebiage—when valid under laws of Indiana. A marriage between minors of ages sufficient to enable them to contract, is valid under the laws of Indiana where made pursuant to license duly issued and performed by an officer vested with power to solemnize the same and followed by a return showing the solemnization of the marriage as required by law.
    2. Marbiage—what agreements do not affect validity of. An agreement to keep secret the fact of marriage for a specified period does not affect its validity; nor (the marriage having been followed by copulation) does an agreement that the same shall not take effect for a stipulated period, affect its immediately fixing the status of the parties.
    3. Marriage—effect of, under laws of Indiana, if made without issuance of license. A marriage contracted in Indiana is not void if not solemnized pursuant to a license if the parties thereto believed that the marriage at the time of its making was legal.
    4. Separate maintenance—when wife entitled to allowance for. The marriage being established, it is the duty of the husband to support his wife in accordance with his condition in life and if he fails or refuses to do so and the wife in consequence thereof is living separate and apart from him without her fault, she is entitled to an allowance for her reasonable support and maintenance to be awarded to her in a proceeding for that purpose.
    5. Separate maintenance—what not defense to proceeding for. The fact that the complainant in a proceeding for separate maintenance resides in another state does not affect her right to maintain the same in the county of this state in which the defendant resides.
    6. Separate maintenance—what may he considered in fixing alimony. In fixing the alimony to be awarded in a separate maintenance proceeding, the court may not only take into consideration the present means of the defendant but his prospective inheritance as fixed by the terms of the will of a deceased ancestor.
    Separate maintenance. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    John Gibson Hale, for appellant.
    William H. Emrich and Robert P. Bates, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

These two appeals were consolidated for hearing and determination pursuant to an order duly entered upon the agreement of the parties. They both arise out of the same proceeding, viz: a statutory bill for separate maintenance. The appeals will therefore be considered and determined as a unit in this opinion, although separate orders will be entered in each case to carry into effect the judgment which will be here pronounced. The appeal in 14041 is from an order committing appellant for a contempt of court in not paying appellee alimony pendente lite, and the appeal in 14040 is from the final order in the cause decreeing appellee a separate maintenance with suitable allowance for support, solicitor’s fees and costs.

These appeals call for our determination of three questions:

First, are the parties, Walter E. and Kathryn E. Reifschneider, husband and wife?

Second, if they are, was Mrs. Reifschneider, at the time she filed her bill for separate maintenance, living separate and apart from her husband without her fault, within the meaning of the statute providing for an allowance for wives so living?

Third, are the allowances made by the chancellor suitable and necessary for the wife and within the financial ability of the husband to pay?

The parties were married at Hammond in the State of Indiana on August 12, 1904. Both the contracting parties were of immature years, one said to be a little more and the other a little less than nineteen years of age. These young persons became acquainted at the Austin High School, and were lovers. Reifschneider was anxious that the marriage ceremony should be performed, although he was not able to or desirous of assuming the full responsibility which such relationship would impose upon him both by law and custom. He was, however, anxious to secure appellee for his wife, fearing, as he expressed it, that if he waited until she was older she would not feel the same way about it. It was then agreed between them that they should be married at Hammond, Indiana, and that the fact of such marriage should be kept secret for two years. In pursuance of this understanding the parties proceeded to Hammond, where Beifschneider procured a marriage license from the clerk of the Circuit Court of Lake county, Indiana, on the 13th day of August, 1904, and on the same day as appears by the return upon the license, the parties were joined in marriage by T. M. C. Hembroff, a judge of the City Court of Hammond. The marriage is further evidenced by a certificate under the hand of the officiating judge. All of the foregoing was made to appear by a duly exemplified copy of the various documents referred to pursuant to the act of congress in relation to the exemplification and authentication of records. The marriage ceremony was followed by copulation, although each of the contracting parties returned to their respective homes without apprising their families of the new relationship existing between them. Appellee, however, did make known -to some persons the fact that she was married and was the wife of appellant. The parties continued to reside with their respective families, who were kept in ignorance of the marriage relationship until the following February, when the mother of appellant discovered from the marriage certificate the fact of her son’s marriage to appellee. Appellant’s mother then did what a good woman with natural instincts would have been expected to do under these circumstances. She counseled the young people to live together and proffered her help in furnishing a flat for that purpose. Appellee was quite willing to do so, and expressed herself as being willing to live with appellant as his wife. But appellant doggedly refused to live with appellee as his wife, and paid no-heed to the advice or admonishings of his mother to take his wife and go to housekeeping with her. Appellee was working at the time of this conversation and offered to keep at work and furnish her earnings toward paying household expenses. Appellant at this time made no denial of his marriage to appellee, but flatly refused to either live with her or support her. Subsequently the father of appellee died, and her mother, having predeceased him, she was thereby left an orphan, and as her father left no estate, she was without support. She then went to Pittsburgh, Pennsylvania, and lived in the family of her aunt. Appellant did not contribute to the support of his wife during the time she lived in Pittsburgh. On April 24, 1905, appellant filed in the Superior Court of Cook county a bill for the annulment of his marriage with appellee, to which appellee interposed a demurrer. Upon the hearing of the demurrer it was held to have been well taken, and the bill was dismissed.

The following sections from the E. S. of Indiana were offered and received in evidence without objection:

“Sec. 7289. Marriage is declared to be a civil contract, into which males of the age of eighteen years and females of the age of sixteen years * * * are capable of entering.
“Sec. 7290. Marriages may be solemnized by ministers of the gospel and priests of every church throughout the State, judges of courts of record, justices of the peace, and mayors of cities within their respective counties. * * *
“Sec. 7292. Before any person, except members of the Society of Friends, shall be joined in marriage, they shall produce a license from the Clerk of the Circuit Court of the County in which the female resides, directed to any person empowered by law to solemnize marriages, and authorizing him to join together the persons therein named as husband and wife.
“Sec. 7295. No marriage shall be void or voidable for the want of license, or other formality required by law, if either of the parties thereto believed it to be a legal marriage at the time.
“Sec. 7296. Every person who shall solemnize any marriage by virtue of the provisions of this act shall within three months thereafter file a certificate thereof
in the clerk’s office of the County in which such marriage was solemnized, which certificate shall by such clerk be recorded, together with such license, and such record or a copy thereof shall be presumptive evidence of the facts therein stated.” R. S. Stat. Indiana, 1901. Vol. 2, City Court.
“Sec. 3671. Such judge shall provide a seal for such court, which shall contain on the face the words, ‘City Court of-Indiana;’ (filling the blank with the name of the city and county). A description of such seal, together with an impression thereof, shall be spread on the records of said court.
“Sec..3672. City Courts shall be courts of record. # # #
“Sec. 3674. * * * Such judge shall have full authority to administer oaths, to take and certify acknowledgments of deeds and other instruments, to solemnize marriages, and to give all necessary certificates for the authentication of the records and proceedings in said court.”

The legality of this marriage must be adjudged from the laws of Indiana, the place where the marriage contract was entered into, and whose law officer performed the marriage ceremony. The uncertain and inconsistent evidence of appellant cannot be received to contradict the solemn record of a sister state. All of the statutory requirements essential to a valid marriage under the statutes of Indiana the record discloses were substantially complied with. The marriage license was first issued, the parties were then married by an officer of the law, vested with power to perform -the marriage ceremony. That officer made due return of the solemnization of the marriage upon the license, and the license with such return on it was then filed with the clerk of Lake county. The officer then issued a marriage certificate which the mother of appellant afterwards found in his possession. The marriage was valid by the laws of Indiana. It is therefore valid and binding upon the parties in whatever other territorial jurisdiction they may live. This marriage, performed in Indiana, agreeable to its laws, was afterwards consummated in Illinois. The parties are husband and wife and have been such since August 13, 1904. But appellant contends that the agreement to keep the marriage secret for two years invalidates the ceremony and annuls the marriage. That this is an erroneous view of the law is too plain for discussion. Again, it is urged that the agreement was that the marriage should not go into effect for two years, and such an agreement, upon authority, vitiates the marriage. Were we willing so to concede, it would be an irrefutable argument to say that such rule is not applicable here because it is not denied that the marriage was consummated by copulation soon after the marriage ceremony was performed. From any angle from which these facts may be viewed, the consummation of the marriage, following so soon after the marriage ceremony, completed the contract of marriage and makes it binding upon both the parties. The testimony proves conclusively that the copulation which followed the ceremony was in the faith and belief by both parties that they were lawfully married to each other.

Section 7295 of the Indiana statute is significant in its bearing upon appellant’s contention that no license was issued, for the other facts as to the performance of the marriage ceremony by an officer having authority to join parties in marriage being admitted, this section would be sufficient to cure the omission to procure a license, if such license had not been procured. This section reads “No marriage shall be void or voidable for want of license or other formality required by law if either of the parties thereto believe it to be a legal marriage at the time.” We are impressed with the. belief, from the evidence in the record, that appellant as well as appellee not only believed but had no shadow of doubt in their minds but that they were lawfully married when they returned from Hammond to Chicago, on August 13,1904, and in the faith of that belief assumed the relationship to each other of husband and wife. Neither can the marriage be avoided upon the contention that appellant was not of sufficient age to legally contract a binding marriage, for by section 7289 supra it is provided that a marriage may be entered into between “males of the age of eighteen years and females of the age of sixteen years.” Both the parties’ ages exceed that of the minimum so fixed by the statute.

Second. The marriage being established, it is the duty of appellant to support appellee as his wife in accordance with his condition in life, and if he fails or refuses to do so, and the wife in consequence thereof is living separate and apart from him, without her fault, she is entitled to an allowance for her reasonable support and maintenance, to be awarded to her in a proceeding for that purpose, in conformity to chapter 68 R. S.

The evidence conclusively proves that appellee, though willing, has had no opportunity to live with appellant in the marital relation. He refused to heed the appeals of his mother or to accept the financial aid which she proffered to enable him to live with his wife in a flat. He also refused to live with her in the home of her sister, Mrs. Lewis, until other arrangements could be made. While he claimed he could not support a wife on the money he was earning, yét he refused to live with her even after she overcame that difficulty by agreeing to continue working in a position from which she was receiving $30 a month. Strong circumstances of his unwillingness to live with his wife arise from the facts that he repudiated the validity of the marriage and filed a bill in an attempt to annul it, and that notwithstanding the death of her father left her bereft of parental protection, he did not go to her or contribute anything to her support. Appellee has maintained the averment of her bill that she is living separate and apart from appellant without her fault. But it is claimed that because appellee, after the death of her father, moved to Pittsburgh, residing there with an aunt, that therefor she is a non-resident and not entitled to maintain this suit in the forum of this jurisdiction. It is elementary law that the residence of the wife follows that of her husband. Davis v. Davis, 30 Ill. 180.

This proceeding is purely statutory and must be governed entirely under the authority conferred by the statute, and this provides, in section 23, that “proceedings under this act shall be instituted in the county where the husband resides.” Appellant is a resident of Cook county. In the forum of that jurisdiction the proceeding was properly cognizable.

Third. The marriage being established, as also the fact that appellee is living separate and apart from appellant, her husband, without her fault, the question remaining for determination is whether the allowance for suit money and support are justified from the proofs. It is evident from the record that appellant, so far, has not developed the capacity to earn much money, his ability in this line extending to not more than $15 a week. He is not possessed of any money. But he has admittedly an interest in property, subject to a life estate in his mother, under the will of Mathew Gottfried, the deceased maternal grandfather of appellant. The estate in the hands of the trustees of the Gottfried estate, in which appellant is the remainder man, exceeds $150,000 in value.

In view of this prospective inheritance, the allowances made both for support and solicitor’s fee and suit money must be regarded as moderate and in every way reasonable, and in accordance with the condition in life of appellant. He has property from which he can realize money, if he chooses, to support his wife. This the law requires Mm to do.

Temporary alimony, appellant claims, should not have been allowed before the final hearing, as the marriage of the parties was denied by appellant. While it is true that, until the relationship of husband and wife is either established by proof or admitted in the pleadings, it is not the rule to make any allowance for temporary alimony or suit money, in this case it was made to appear from facts in the record, that by the ruling of the Superior Court in the suit to annul the marriage, the facts set forth in the bill, upon which appellant sued for an annulment of the marriage, were insufficient to warrant its annulment, and further, that the facts set forth in the answer of appellant to the bill before us, were likewise insufficient to support the defense that the parties did not bear to each other the relation of husband and wife.

Before entering the initial order for alimony pendente lite, the chancellor had before him indisputable evidence of the lawfulness of the marriage of the Reifschneiders, and since that time the correctness of the court’s conclusion has been substantiated in a hearing upon the merits, resulting in the final decree involved in this appeal.

Finally, appellant cannot advantage of his own refusal 'to perform the contract of marriage solemnly entered into by him with appellee, according to the forms of the law of Indiana. Appellee had a right to demand that appellant live with her in accord with the obligation and custom of that relationship, and his refusal to do so after her demand can be neither excused nor condoned.

A strange doctrine indeed it would be if a man, protesting his love for a woman, proffers marriage and, gaining her consent, the parties proceed to the marriage ceremony, in accord with the laws of a sister state, such marriage being followed by cohabitation, that because there was a compact between them to keep such marriage secret from their families for a time, the man can, at his own whim and caprice, annul the marriage by being recreant to his duty in refusing to live with and support his wife. Such a doctrine would be monstrous and result in undermining the social fabric in its most sacred relation of life.

The order of May 8, 1907, holding appellant in contempt of court for non-payment of temporary alimony, is affirmed.

The final decree of the Circuit Court, awarding appellee separate maintenance with allowances for support and solicitor's fees, and ordering appellant also to pay the costs, being without error, is affirmed.

Affirmed.