text:
    Delphina Deheave, Defendant in Error, v. Walker D. Hines, Director General of Railroads, Plaintiff in Error.
    1. Railroads, § 630

      —what is duty of flagman at railroad crossing. It is the duty of a flagman, placed at a public railroad crossing to direct the public when to cross and when not to, to know when it is safe to cross and when not.
    2. Railroads, § 630*—right to rely on signals of flagman. Persons desiring to cross a railroad at a public crossing at which a flagman is stationed have a right to assume that the flagman will know whether it is safe for them to cross and will warn them if it is not.
    3. Railroads, § 630*—wrong signal of flagman at crossing as gross negligence. Where a railroad company’s flagman at a public railroad crossing signals one waiting at such crossing to cross and such person does so and is struck by a train, the railroad company is guilty of gross negligence.
    4. Trial, § 65*—effect of uncontradicted evidence. Positive testimony uncontradicted and unimpeached cannot be disregarded by either court or jury.
    5. Railroads, § 621*—sufficiency of signal by flagman at crossing. It is the duty of a railroad company’s flagman, who is stationed at a public crossing, in warning persons, desiring to cross, of the approach of a train to give such a warning of danger as will be understood by the ordinary person under such circumstances to be a warning of danger.

      6. Railboads, § 630

      —when reliance on signal of flagman relieves from contributory negligence. If a flagman stationed at a railway crossing which one driving an automobile is seeking to cross failed to give correct signals which would be understood by the ordinary person situated as the driver then was, or gave wrong or misleading signals on which the driver, acting as an ordinary prudent person under like circumstances would have acted, relied, and he and passengers in his car were struck by a train in driving over the crossing, neither he nor his passengers can be held to have been guilty of contributory negligence.
    7. Railboads, § 736*—when evidence establishes negligence of railroad and flagman. In an action to recover for personal injuries received by a passenger who was riding in an automobile which was struck by defendant’s train at a public crossing at which defendant had stationed a flagman, held, that the evidence, which was conflicting as to vwhether such flagman had signaled the automobile to cross or to stop, was sufficient to support a verdict and that a judgment for plaintiff would not be disturbed.
    8. Negligence, § 225*—sufficiency of instructions as to contributory negligence. Instructions as to contributory negligence are suffir cient if, taken together, it is impossible for the jury to misunderstand from them the true rule governing contributory negligence.
    9. Railboads, § 779*—sufficiency of instruction as to imputed negligence. In an action against a railroad company to recover for injuries received at a crossing by plaintiff while riding in an automobile driven by another, an instruction that plaintiff was not chargeable for any acts of negligence of such automobile driver provided she herself did not fail to do anything which the law required her to do for her own safety, while awkwardly worded, correctly states the law as to imputed negligence.
    10. Railboads, § 779*—when instruction as to imputed negligence is properly refused. In an action against a railroad company to recover for injuries received by being struck by defendant’s train at a crossing while she was riding in an automobile driven by another, an instruction, requested by defendant, that plaintiff could not recover if the automobile driver was negligent in failing to look for an approaching train or in observing signals learning him of its approach is properly refused.
    Error to the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the October term, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 27, 1920.

      Patton & Patton, for plaintiff in error; William L. Patton, Henry L. Patton and Silas H. Strawn, of counsel.
    John G. Friedmeyer, for defendant in error; C. F. Mortimer and John P. Flood, of counsel.

      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. Presiding Justice Graves

delivered the opinion of the court.

This is a writ of error brought to reverse a judgment in favor of defendant in error and against plaintiff in error for $2,500 recovered in an action of trespass on the case for personal injuries sustained by defendant in error in a collision between an automobile in which she was riding and a train of Chicago and Alton Bailroad at Auburn, Sangamon county, Illinois. The declaration is in one count and charges that a crossing flagman of plaintiff in error negligently signaled the driver of the automobile in which defendant in error was then riding, to approach and cross the tracks of the railroad there on a grade crossing of the said railroad tracks and the public highway, when a train was approaching at a high and dangerous rate of speed and gave no warning of its approach; that said driver, relying on such signal and not knowing that the train was approaching, did with all due care and diligence approach and attempt to cross such railroad tracks there, but that the automobile was struck by the train that was so approaching and defendant in error sustained injuries. A plea of not guilty was filed to that declaration. The negligence of plaintiff in error relied on was the conduct of the flagman above referred to.

The automobile in question was being driven by one Dr. Edwards, a veterinary surgeon, who was also a demonstrator of Saxon automobiles, and was at that time in the act of demonstrating the car in question to one Frank Beavy, a prospective purchaser. At the time of the accident there were in the car 'the defendant in error and Dr. Edwards in the front seat, two men in the back seat and between the front and back seats there were two children. Dr. Edwards was familiar with the automobile and with the location and knew that there was a fast passenger train due to pass the point where the accident happened about that time. When the automobile approached the crossing where the accident occurred, it was blocked by a freight train and Dr. Edwards stopped the car he was driving to wait until the freight train had passed. He waited there some ten or fifteen minutes. He with his car was west of the freight train that was blocking the track. The flagman was east of it and had in his hand á large disk signal or sign on which was printed in large letters the word “stop.” When the crossing was apparently cleared up, the freight train pulling out, Dr. Edwards sounded liis horn and the flagman made a signal in return which Dr. Edwards and defendant ■ in error both testified was a signal to cross. Dr. Edwards then proceeded to cross the tracks and succeeded in reaching a track on which a fast passenger train was approaching, but which was not seen by him or defendant in error until that moment. When becoming aware of its approach he attempted to stop or reverse his car and in so doing killed his engine and the car was struck and defendant in error was injured.

The questions whether or not plaintiff in error is chargeable with negligence and whether defendant in error was guilty of any contributory negligence and whether the driver of the automobile in which she was riding was guilty of such negligence as, if it can be imputed to defendant in error, would bar her right ■to recover, all turn on whether the flagman at the crossing where the accident happened signaled to the occupants of the automobile to cross or to refrain from crossing the tracks.

The flagman was placed there to direct the traveling public when to and when not to cross the tracks of plaintiff in error. It was his ’duty to know when it was safe to cross and when not (Chicago & A. R. Co. v. Adler, 129 Ill. 335; Chicago & A. R. Co. v. Blaul, 175 Ill. 183), and all persons desiring to cross there had a right to assume that the flagman did know and would faithfully warn them if it was not safe to cross. Chicago, R. I. & P. Ry. Co. v. Clough, 134 Ill. 586; Chicago & A. R. Co. v. Blaul, 175 Ill. 183. As a matter of fact it was not safe to cross when the driver of the automobile attempted to do so. The flagman was there and when the automobile party first approached the crossing he signaled them to stop and they understood the signal, and stopped while a freight train did some switching. If the testimony of Dr. Edwards and defendant in error is correct, then plaintiff in error was, through the act of the flagman, guilty of gross negligence. Chicago, R. I. & P. Ry. Co. v. Clough, 134 Ill. 586; Pennsylvania Co. v. Sloan, 125 Ill. 72. If the signal was to stop, as plaintiff in error argues it must have been, and was given in time, then so far as the flagman is concerned no negligence is shown. The flagman was dead at the time of the trial. One witness, called by plaintiff in error, testified that just as the street crossing was cleared by the freight train the flagman threw up the flag for the automobile party to stop. Whatever signal was given was made with the disk. Two witnesses have testified the signal was for the automobile party to cross, one witness says it was to stop. Manifestly in order to determine which of these witnesses was right it is necessary to know what motion, if any, was made by the flagman with the disk. Defendant in error was the only witness who used any words in attempting to describe the motion made by the flagman. She said at one time: “He pulled the flag- like this,” then the word “indicating” has heen inserted in the record. The abstract and the record show the following with reference to other testimony in regard to what motion was made by the flagman: “He made the sign like this, you know (illustrating).” “He made a sign to come along like that (illustrating).” “He was holding this signal in an upright position.” “He threw it up for them to stop.” “I saw him throw it up for them to stop.” “The flagman waved his signal for me to come across.” “He was standing there and gave the sign like that (illustrating). Just motioned like that (illustrating).” “No he hadn’t raised it up in that position.” Numerous other questions were put and answers made in reference to motions made either by the examiner or the witness, which questions and answers are meaningless to one who is reading the record. The jury heard those questions and answers and saw the motions made, both of the examiner and of the witnesses, and was in a position to understand by the words and motions made what the witness meant and whether the flagman meant for the automobile party to cross or to stop. This case presents a most excellent illustration of the rule that those who see the witnesses and hear them testify are in a better position to weigh their testimony than those who read the record of such testimony. The jury in this case must have found that the flagman by his motions invited the automobile' party to proceed to cross the railroad tracks, and the judge who saw these witnesses and heard them testify has approved the verdict. It would be presumptuous in the extreme for this court from reading this record to assume to say the jury and the trial court were both wrong in their interpretation of the signs made by the flagman or the weight of the testimony of the witnesses on this subject. The general reputation of these witnesses for veracity was not shown to be bad, neither was the story told by them so inherently improbable as to warrant ns in disregarding it for that reason. There is nothing inherently improbable in evidence tending to show that a flagman at a railroad crossing neglected - to do his duty or that he failed to note the.approach of a train or gave a wrong signal to persons relying on him for guidance as to when it was safe to attempt to cross the tracks at the crossing over which he was presiding. If such evidence should be held inherently improbable and therefore unworthy of belief, then any evidence of negligence might with equal propriety be disregarded for the same reason, for everyone is presumed to do his duty. The rule is that positive testimony uncontradicted and unimpeached cannot be disregarded by either court or jury. Stephens v. Hoffman, 275 Ill. 497-502. It was negligence for the flagman under the circumstances there present to signal the party to cross the railroad, if he did so, and it was equally negligent for him to fail to give some unequivocal sign to the persons whom he knew were waiting to cross the track there, from which an ordinary person situated as these persons then were could accurately determine whether they were to proceed or stay where they were, if he did so fail. It was his duty there at that time, with the fast train approaching, to make some sign that would amount to a warning of danger and that would be understood by the ordinary person under like circumstances to be a warning of danger. We are not prepared to say that the jury were not justified in finding that the acts of the flagman amounted to negligence of plaintiff in error. The question of contributory negligence turns on much the same proposition. The driver of the automobile as well as the passengers in it had a right to rely on the flagman to give them correct signals that would be understood by the ordinary person situated as they then were. If this was not done or if wrong and misleading signals were given on which these persons, acting as ordinarily prudent persons under the circumstances would have acted, in fact did rely, then neither the driver of the automobile nor his passengers therein can be held to have been guilty of contributory negligence. In any event it was a question for the jury to determine from all the facts and circumstances in evidence whether defendant in error was at and immediately before the accident in the exercise of due care for her own safety. Under the circumstances this court would not be justified in holding that the verdict is contrary to the weight'of the evidence either as to the negligence of the servants of plaintiff in error or the contributory negligence of defendant in error or of the driver of the automobile.

The fifth instruction given for defendant in error in substance told the jury that if defendant in error and the driver of the car in which she was riding were in other respects in the exercise of due care, for their own safety, then the fact that they relied on the signals given by the flagman, if they did so, would not defeat the right of defendant in error to recover. In several other instructions in the series given at the request of each of the parties the jury were told what would. and what would not amount to due care on the part of plaintiff in error and the driver of the car. It was impossible for the jury from all these instructions to misunderstand the true rule governing” the question of contributory negligence.

The eighth instruction given for defendant' in error told the jury in substance that defendant in error was not chargeable for any acts of negligence on the part of the driver of the automobile provided she herself did not fail to do anything that the law required of her to do for her own safety. The instruction is no! well worded but states correctly the law on the question of imputed negligence.

Plaintiff in error asked one instruction that the court refused. It told the jury in substance that defendant in error could not recover if the driver of the automobile, in which she was riding was negligent in failing to look for an approaching train or in observing signals warning him of an approaching train. This instruction ignores the question whether defendant was a pass.enger for hire or was a mere guest or companion. It also ignores the question whether she was in such relation to. the driver as to be able to exercise influence over him. Also the question whether she in fact did attempt to prevent him from driving on the track there. Under this instruction she could not recover if she had heard or seen the approaching train and begged the driver not to try to cross the track in front of it or if she had been a prisoner bound, gagged,' blindfolded and helpless. The instruction was properly refused.

Finding no error in this record the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Graves

license: Public Domain

text:
    Bloomington Lodge No. 281, B. P. O. of E., Appellee, v. W. H. Roland, Appellant.
    1. Easements, § 9

      —how easements are conveyed. Where the owner of premises creates conditions for the benefit of certain portions of such premises which are reasonably necessary for the use and occupation of the same and which amount to easements on or over certain other parts of the same premises, and afterwards sells or leases to another the portion of the premises so benefited, the conveyance of such portion, whether in fee or for years, carries with it the easements so createdf for its benefit, whether such easements are expressly mentioned in the conveyance or not, and the balance of such premises, whether still held by the original owner or some one under him, is charged with and burdened by such easements.
    2. Landlord and tenant, § 156

      —tenant’s right to light and air. A lessee of a part of a building takes the right to have light and air through the windows of the building as it is then constructed, and one who leases another floor of such building takes the premises charged with such easement for light and air.
    3. Landlord and tenant, § 172*—when alterations hy one tenant ■will not he enjoined. A court of equity will not, at the suit of one tenant, enjoin another of a- lower floor of the same premises from making an addition to such premises merely because the addition will interfere with an existing fire escape used by complainant in removing garbage, where there is nothing to show that the fire escape was ever intended as a means of ingress and egress to and from complainant’s floor, or that it was reasonably necessary or highly convenient as a fire escape for the occupants of complainant’s floor, or was constructed for the purpose of conveying garbage from or anything to such floor, but does show that such fire escape does not reach the ground and is not connected with any door by which entrance can be made into or out of complainant’s floor.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    Stone & Dick, for appellant.
    Livingston & Whitmore, for appellee; Sigmund Livingston, of counsel.

      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. Presiding Justice Graves

delivered the opinion of the court.

A Mrs. Braley is the owner of a three-story brick building and the lot on which it stands, located at 113 West Jefferson street in the City of Bloomington. The lot is 22 feet wide and 110 feet long. The building was as wide as the lot and about 80 feet long. The rear 30 feet of the lot was vacant. On August 31, 1915, the owner leased the entire premises to one C. D. Twaddle for the term of 20 years from March 1, 1916. On April 20, 1916, Twaddle sublet the third story of the building to the Woolworth Company, who owned a three-story building on an adjoining lot. On the same day the Woolworth Company leased to appellee the third floor of the two buildings for lodge purposes, and it has since occupied the same therefor. The rear room of the third floor of the Braley building is used by appellee as a lunch and card room and is lighted by windows in the rear end of the building opening on the unoccupied portion of the Braley lot, that has been spoken of by counsel as a court. There is no door opening from the third floor of the Braley building on to this court. On July 12, 1916, Mrs. Braley, the owner of the building, Mr. C. D. Twaddle, her tenant, and appellant made an agreement by which the lease of Twaddle was assigned to appellant, and appellant was given the right to make certain improvements at his own expense. Appellant’s lease was by its terms subject to all existing leases. In the early part of 1919 appellant began the erection of an addition to the Braley building covering the portion of the rear end of the premises which the original building did not cover. When this building had progressed to about the second story, this suit was begun by appellee to restrain appellant from erecting the proposed addition, “claiming an easement for light and air across said open court, also an easement to use the fire escape in transferring' refuse from its kitchen to a garbage box on the alley.” The language is quoted from the statement of the case by appellant in his brief and argument filed in this court.

The circuit court sustained the contention of appellee as.to its easement for light and air and ordered that appellant should not construct the proposed building above the third floor of the original building or so as to interfere in any way with the passage of light and air through the windows of the third story opening on to said court, but held that appellee had no “easement across the open court in question as a means of transferring garbage through the windows of the third floor and out to the alley. ’ ’ The language quoted here is taken from the statement of facts in the argument of appellant filed in this court. Roland appealed from so much of the decree as restrained him from building the addition higher than the floor of the second story of the original building and appellee has assigned cross errors as to that part of the decree in which it is held that it has no easement out of the back windows of the third story of the main building and over the court for conveying garbage to the alley.

1 Appellant says: “The principal question" involved in this case is whéther or not there may be an implied easement for light and air in this State, and if so, whether or not the present case presents the situation where such an easement would be implied.”

In Feitler v. Dobbins, 263 Ill. 78, the Supreme Court says: “Where the owner of entire premises arranges for.ways, light, etc., for the benefit of the different parts or portions of the premises, and afterwards the premises are severed and the title vested in separate owners, each grant will carry with it, without being specifically mentioned, the rights, burdens and advantages imposed by the owner prior to such severance. The doctrine is founded upon the principle that the conveyance of a thing imports a grant of it as it actually exists a't the time the conveyance is made unless a contrary intention is manifested in the grant. ”

In Adams v. Gorden, 265 Ill. 87, the court says: “The rule is, where the owner of lands divides his property into two parts and disposes of one part, he by implication includes in his grant all such easements in the remaining part as were necessary for the reasonable enjoyment of the part which he grants in the form in which it was at the time he transferred the property, the general rule of law being, that when a party grants a thing, he by implication grants whatever is incident to it. * * * And it is not necessary that the easement claimed by the grantee be absolutely necessary to the use and enjoyment of the property; ‘it is sufficient if it is highly convenient and beneficial therefor.’ * * * Where an owner sells a portion of his land he is presumed to intend that the purchaser shall take it in its then condition. ’ ’ The court then cites and quotes from Feitler v. Dobbins, supra.

In Sprenzel v. Windmueller, 286 Ill. 411, the court says: “Where the owner of land divides it and sells one part, he by implication includes in his grant all such easements in the remaining part as are necessary for the reasonable enjoyment of the part which he grants, in the form they were at the time he transferred the property.”

In Powers v. Heffernan, 233 Ill. 597, the court says: ‘ ‘ The law seems to be well settled that the disposition and arrangement of two heritages, or of one heritage consisting of several parts, belonging to one owner, for ease and convenience with reference to ways, light, etc., made during unity of seizin, which are apparent and continuous and necessary to the reasonable enjoyment of the several parts thereof, will be an easement upon the severance of title as to the different parts thereof, and upon a grant of a portion by the owner of the fee each portion of the several premises will be subject to the burdens and advantages imposed or conferred upon the different parts of the premises.”

Numerous other cases in the courts of this and other States could be cited to the same effect as those already quoted from, but it seems unnecessary. Whatever may be the holdings in some of the courts in some other jurisdictions, the law is well settled in this State that where the owner of premises creates conditions for the benefit of certain portions of such premises and which are reasonably necessary for the use and occupation of the same and which amount to easements on or over certain other parts of the same premises, and afterwards sells or leases to another the portion of said premises so benefited, the conveyance of such portion whether in fee or for years carries with it the easements so created for its benefit whether such easements are expressly mentioned in the conveyance or not, and that the balance of such premises, whether still held by the original owner or by some one under him, is charged with and burdened by such easements so created. In the case at bar, appellee by operation of law took under its lease the third floor of the Braley building as it was then constructed, including the right to have light, and air through the windows at the rear end of that floor, and appellant took under his lease the rest of the premises described, or, in other words, the part of the premises which appellant took under his lease was charged and burdened with the easement for light and air which went to appellee under his lease to the third floor of that building, and the circuit court correctly so held.

If we understand the contention of appellee under its assignment of cross errors, it is, first, that the circuit court did not by its decree prohibit the building of the addition in the court to any height whatever, because the addition, if built, would necessitate the changing of the fire escape from the rear end of the original building to the rear end of the proposed addition, and, second, because the court was constructed for the advantage and service of the occupants of all the floors of the building.

We find no proof in the record to sustain either of these contentions. There is nothing to show that the fire escape was ever intended as a means of ingress and egress to and from the third floor of the building in the sense in which that term is used in the law of easements, nor that it was reasonably necessary or “highly convenient” as a fire escape for the use of the occupants of the said third floor of the Braley building, as distinguished from a mere convenience. Powers v. Heffernan, 233 Ill. 597; Wells v. Garbutt, 132 N. Y. 430. It is quite evident it was not constructed for such purpose for it neither reached the ground nor was it connected with any door by which entrance could be made into or out of the third floor of the building. Neither is there anything to show that it was constructed for the purpose of conveying garbage from or anything to the third floor of the building.

Courts of equity have undoubted jurisdiction to determine the rights of parties to easements running with interests in real estate and to enjoin the obstruction of a private easement. Feitler v. Dobbins, supra, and the facts in this case show ample cause for interference by the court in appellee’s behalf to restrain the obstruction of its rights to light and air in question. The assessment of costs was within the sound discretion of the chancellor, and we see no reason for holding that in assessing all of the costs to appellant, that discretion was abused.

The decree of the circuit court is affirmed.

Decree affirmed.


text:
    In the Matter of the Estate of Ellen E. Chapin, Deceased. Helen Ethel Mosby, Executrix, Appellant, v. Charles O. Chapin, Executor, Appellee.
    1. Husband and wife, § 131

      —what is effect of waiver of husband’s rights in wife’s estate. A waiver by a husband of all of the rights to which he is entitled in his wife's estate is, if fairly made and based on a valuable consideration, binding not only on the husband but also on his executors and devisees.
    2. Husband and wife, § 131*—presumption of waiver of husband’s rights in wife’s estate. While, in equity, a consideration will be presumed where a husband’s written waiver of his rights in his wife’s estate is under seal, such presumption is not conclusive, and evidence of a want of consideration will be admitted to overcome it.
    3. Husband and wife, § 131*—what circumstances are consistent with presumption of waiver of husband’s rights. Where it appears that, at the time a husband executed a waiver in his wife’s estate, he and his wife, both of whom were aged, were about to go .to different places to live, that the heirs of neither had any claim on the other, that each, apparently with the knowledge and consent of the other, made a will in which the rights of the other were ignored, that life insurance money derived by the wife on policies on the life of a son by her former marriage was made over by her to a daughter by such former marriage, to whom also she was about to make over the balance of the money received from the son’s estate at the time the waiver was executed, that the husband substituted his niece as the beneficiary in his life insurance policy in place of his wife, that though he survived his wife six months, knew of the administration of her estate and was urged to claim an interest therein, he refused to do so, such circumstances are consistent with the presumption of consideration for the waiver which arises from the fact that it was under seal.
    4. Contracts, § 183*—what may be considered in construing contract of deceased person. Where the mouths of the parties to a contract are closed by death, resort may be had to their acts and dealings in regard to the subject-matter thereof to determine the contemporaneous construction and understanding by them of its terms.

      Appeal from the Circuit Court of Morgan county; the Hon. Nob-man L. Jones, Judge, presiding. Heard in this court at the October term, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed April 27, 1920.
    Wilson & Butler, for appellant.
    Carnahan & Slusser and Worthington, Reeve & Green, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Ellen E. Chapin died August 27, 1916, leaving a will dated January 26, 1916, by the terms of which she gave all her property to her daughter, Helen E. Mosby. Besides her daughter, Helen E. Mosby, Ellen E. Chapin left surviving her at "her death a son, Harry E. Mosby, and a husband, Quartus H. Chapin, who died March 3, 1917. He left no child or children or descendants of any deceased child or children surviving him. He left a will dated February 19, 1916, in which he named one Charles O. Chapin as executor and by which he gave his property, excepting a few keepsakes, to two nieces. Neither Ellen E. nor Quartus H. Chapin had any considerable property. He earned wages in the mail service of the United States and she kept boarders, and their joint earnings seem to have gone into the support of the family. On January 12, 1916, one William H. Mosby, .a son of Ellen E. Chapin by a former marriage, died and left all his property to his mother and his sister, Helen "E. Mosby, in equal parts. The mother made over to her daughter Helen the life insurance that was payable to her on the life of her deceased son, William H. Mosby, amounting to $23,0,00. The fund left for distribution of the estate of Ellen E. Chapin amounted to $12,233.32 and was chiefly, if not entirely, derived by her under the will and from the estate of her deceased son, William H. Mosby. On' the same day upon which he made his will, Quartus H. Chapin made, executed and acknowledged and caused to be delivered to his wife, Ellen E. Chapin, the following instrument:

‘ ‘ To whom it may concern:

T hereby waive all rights that I may be entitled to by Law in the estate of my wife Ellen Chapin.

This is done of my free will in order that it may enable my wife to make such disposition of her property as she may desire.

(Signed) Q. H. Chapin (Seal)

Witnesses :

Gael F. Bank,

CoUETLAND A. GrUTHBIE.

(Notarial Seal)

Subscribed and sworn to before me, a Notary Public, in and for the County of Cook, State of Illinois, this 18th day of February, 1916.

Ed. M. Hodgetts, Notary Public.”

On June 1, 1916, in the lifetime of his wife, Ellen E. Chapin, Quartus H. Chapin caused, apparently with the consent of his wife, his life insurance policy to be changed so as to make a niece his beneficiary in place of his wife who had formerly been named as such beneficiary. At the time of the death of William H. Mosby in January, 1916, preparations had been made for the removal of Ellen E. Chapin and her children, including the said William H. Mosby, .from Chicago, where they were then residing, to Jacksonville, Illinois, and shortly after that time the said Ellen E. Chapin and her remaining children did remove to Jacksonville and Quartus H. Chapin, the husband, apparently voluntarily entered an Old Men’s Home in Chicago, where he afterwards died. No claim was ever made by Quartus H. Chapin for any part of his wife’s property, although he survived her approximately six months. The testimony shows that he stated that the property his wife left at her death all came from her son, William H. Mosby; that he had waived all claim to it and did not intend to contest her will or claim any of her property. After his death and the probate of his will, his executor, by objection to the final report of the executrix of the will of Ellen E. Chapin, claimed that one-third of the personal property left by her belonged to the estate of Quartus H. Chapin. These objections were sustained in the circuit court where the case was heard on appeal from the county court. The question presented by this appeal from the circuit court is whether the written waiver quoted above is effectual as a waiver of the husband’s expectancy in the property of his wife.

There can be no doubt that it was the deliberate purpose of Quartus H. Chapin to waive all his rights in the property of his wife, or that up to the time of his death he intended to carry out that purpose. Neither is there any doubt that if the waiver in question was fairly made and was based on a valuable consideration, it was binding not only on Quartus H. Chapin but also on his executors and devisees. Crum v. Sawyer, 132 Ill. 443; Ridgeway v. Underwood, 67 Ill. 419; Collins v. Phillips, 259 Ill. 405; Edwards v. Edwards, 267 Ill. 111; Mires v. Laubenheimer, 271 Ill. 296; Donough v. Garland, 269 Ill. 565.

This written waiver is under seal, and although there is no consideration mentioned in it, it would in a court of law be binding. The seal is said to import a consideration and to estop the party from denying it. Bishop on Contracts, sec. 119. A court of equity holds to this same doctrine to the extent that a consideration will there be presumed from a seal. Bishop on Contracts, sec. 120. There, however, this presumption is not conclusive, and proof of want of consideration will be admitted to overcome the presumption created by the seal. In Crandall v. Willig, 166 Ill. 233, the court on page 239 says: “True, the contract was under seal, and purported to be based upon the nominal consideration of one dollar; but the evidence showed that there was in fact no consideration whatever, and it is well settled that in equity the seal consideration may be inquired into, and the parties are not concluded by the recitals in the contract, though under SEAL. * * * Disregarding mere forms and looking at the realty, it requires an actual-valuable consideration as essential in any such agreement, and allows the want of it to be shown, notwithstanding the seal.” In Corbett v. Cronkhite, 239 Ill. 9, the court cites with approval, quotes from and follows Bishop on Contracts, sec. 120, and Crandall v. Willig, 163 Ill. 233, 239, and says on page 15 of that opinion: “We think this rule is supported by the great weight of authority, and may now be considered the settled law of this State.”

It follows that, as this waiver is under seal, it will be presumed even in a court of equity to be based on a valuable consideration, unless there is proof in this record to overcome that presumption. We have been referred to no such proof, and a careful examination of the record- has failed to reveal any. On the contrary, a consideration of all the facts disclosed in this recórd is strongly convincing that what was done by both Quartus H. Chapin and his wife, Ellen E. Chapin, in and about the disposition of their several estates was done pursuant to a mutual plan, understanding and agreement, by which the property of each should go to their respective heirs. It shows that these two people had come to the parting of the ways, he to enter an Old Men’s Home in Chicago, she to remove with her children to Jacksonville; that.the heirs of neither had any claims upon the bounty of the other; that both apparently with the knowledge and consent of the other made wills in which the rights of the other were ignored; that the life insurance derived by Mrs. Chapii\ from policies on the life of her son William, deceased, in which she was named as Beneficiary, was made over to her daughter Helen, and that she was about also to make over the balance of her estate to her said daughter when the waiver in question was executed and*delivered; that the beneficiary named in the life insurance policy on the life of Quartus H. Chapin was changed from his wife to his niece; that although he survived his wife for approximately six months and knew of the administration of her estate and was urged to lay claim to one-third of it under the statute, he refused, declaring that it would not be right under the circumstances. All of these circumstances are at least consistent with the presumption of consideration for the so-called waiver, arising from the seal thereto affixed. Where the mouths of the contracting parties are closed by death, the acts and dealings of such parties in regard to the subject-matter of the supposed contract may be properly resorted to to determine the contemporaneous constructions and understanding of such parties as to its terms.

The circuit court erred in holding that the waiver in question was without consideration and void and in sustaining appellee’s exception numbered three in his series of objections to the report of appellant in question. The order appealed from is therefore reversed and the cause is remanded to the circuit court with directions to overrule that objection and to approve the said report.

Reversed and remanded with directions.


text:
    Carrie Kresin, Appellee, v. Brotherhood of American Yeomen, Appellant.
    1. Insurance, § 721

      —what is effect of acceptance of insured beyond age limit. The fact that a certificate of membership in an insurance society is issued to one who is beyond the age limit at which persons can be admitted to the society under its constitution and by-laws does not render the contract void where the contract is not prohibited by the insurer’s charter.
    2. Corporations, § 44*—power to change charter and by-laws. A charter of a corporation is a grant from the sovereign power pf the State and is not subject to change by the holder nor in any way except by the power granting it, while the constitution and by-laws of the corporation may ordinarily be changed by the corporation, so long as such changes are within the powers granted by the State.
    3. Insurance, § 716*—what changes may be made in charter or by-laws. Under the charter of a fraternal association which authorizes it to issue certificates of membership to persons between such age limits, its by-laws may determine the ages of the persons to whom it will issue such certificates, provided they do not fix age limits outside of those fixed by the charter, and, as a corollary of such power, the association has power to waive the by-law limits and accept any persons within the statutory age limits.
    4. Insurance, § 760*—when association is estopped to claim, violation of by-laws. A fraternal association which has waived its by-law fixing the age limit of persons accepted as members and has issued a certificate to one beyond such age is estopped to set up the fact that such person was beyond the age limit of the by-law as a bar to recovery on such certificate.
    5. Insurance, § 760*—when waiver of by-law as to age limit is established. In an action to recover on a certificate of membership in a fraternal association whose by-laws and constitution prohibited the acceptance of members over 50 years of age, evidence held sufficient to support plaintiff’s contention that the insured, who was, at the time the certificate was issued to him, 51, had stated his correct age to defendant’s soliciting agent in making his application and that the agent, without insuréd’s knowledge or consent, had falsely stated his age in the application as 45, and that the insured, who could not read or write English, had signed the application in good faith and without knowledge of such false statement, and to establish a waiver by the association of the age limit fixed in its by-law.
    6. Insurance, § 760

      —when agent’s knowledge operates as waiver of by-law. Where an applicant for insurance or for admission to a benefit society has fully and frankly disclosed the truth to the agent of such insurance company or society and the agent has falsely recorded or reported the same to or has concealed it from his principal, and the policy or certificate of membership has issued and the insured has paid all premiums and assessments as they have matured and the company or society has accepted them, the agent’s knowledge becomes the knowledge of the principal, and the principal will be held to have waived such irregularities and estopped from denying liability on the policy or certificate.
    7. Witnesses, § 212*—when proper to refuse details of conversation on cross-examination. Where, on cross-examination of a witness, foundation is laid for impeachment by asking her if, at a certain time, she did not make a certain statement to a named person and she denies that she did, whereupon the person is called and testifies that she did make such statement, it is proper, upon such witness being recalled, to refuse to permit her to testify what she did say in the conversation in question, since the issue involved is not what she said but whether she used the language imputed by the question.
    8. Instructions, 131*—effect of ignoring issues. An instruction which ignores issues in the case is properly refused.
    9. Corporations, § 43*—what are charter powers. An instruction that “the charter powers of a corporation consist of .the license or a statute law under which said corporation is doing business,” is improper as embodying an incorrect, indefinite and confusing definition.
    10. Words and phrases—what terms are not synonymous. The terms “license" and “statute law” are not synonymous.
    11. Appeal and error, § 1241*—when error in instruction cannot be complained of. An appellant cannot be heard to complain that the court gave at its request an improper instruction though it was marked “refused.”
    Appeal from the Circuit Court of Macon county; the Hon. William K. WIiitfield, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.

      W. J. Carey and F. F. Wierman, for appellant; John D. Denison, of counsel.
    Lawrence C. Wheat and Byron M. Merris, 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. Presiding Justice Graves

delivered the opinion of the court.

Appellee was named as the beneficiary in a certificate of membership issued to her husband, Herman Kresin, by appellant on October 5, 1915. The application for this certificate of membership, which was signed by the husband, contained the statement that his age was 45 years. In fact he was 51 years old when the application was signed. The by-laws of the order prohibited taking members who were more than 50 years of age.

Upon proof of the death of Herman Kresin being made, appellant refused payment of the certificate. Appellee then brought this suit. Appellant filed the general issue and two special pleas. The first special plea undertook to set up the defense that the contract contained in the policy, or certificate of membership, was ultra vires appellant corporation, because Herman Kresin, the member, was over 45 years of age when the certificate of membership was issued. The second special plea set up as a defense that he falsely and fraudulently represented in his application for membership that he was then 45 years of age, when in truth and in fact he was 51 years of age.

To these special pleas appellee filed several replications of estoppel, the substance of which was that the said Herman Kresin could not read or write the English language; that he truthfully disclosed to the agent of appellant, who filled out the application, his real age, but that the agent, knowing the truth, filled out the application with untrue statements as to his age without the knowledge of the applicant who in good faith signed the same, and that appellant, knowing the truth as to the age of the applicant, issued the certificate and afterwards received and accepted premiums and assessments from the applicant. Issues were joined on these replications. The case was tried by a jury. The verdict was for appellee for $743.

Appellant argues that the verdict is not supported by a preponderance of the evidence and that in any event it cannot waive the fact that Herman Kresin was at the time the certificate was issued outside of the age limit during which persons could be admitted as members of appellant society as fixed by its charter, nor can it be estopped from raising the question that the issuance of the certificate of membership to him was ultra vires the society as fixed by its charter.

If it be conceded that the rule contended for would apply to such corporate acts as are expressly prohibited by the charter of the corporation, it does not follow that the contract sued on is void, for it is not apparent how it is in violation of any prohibition contained in appellant’s charter. Herman Kresin was of course older than the age limit fixed by the constitution and by-laws of the corporation, but the constitution and by-laws of a corporation are not its charter. A charter is a grant from the sovereign power of a State and is not subject to change by the holder at its will or caprice, nor can it be changed in any way except by the power that granted it, while the constitution and by-laws of a corporation may ordinarily be changed by the corporate power, so long as such changed by-laws are within the powers granted by the State. The Supreme Court in Supreme Lodge K. of P. v. Trebbe, 179 Ill. 348, 353, says: "Charters are not created by the act of the corporation or association, but are granted by the sovereign power of the State. A constitution of a voluntary association or a corporation is nothing more than a by-law under an inappropriate name. The power that can enact a by-law, whether called a constitution or not, can alter or abrogate it, unless some higher rule restrains or prohibits a change or repeal. When the authorities speak of a charter they mean an essentially different thing from a law or constitution of the association’s own creation.” For the .same reason the power that can enact a by-law and can alter and abrogate it can also waive its provisions. Supreme Lodge of K. of P. v. Kutscher, 179 Ill. 340, 346.

Appellant was organized under the provisions of the statutes of the State of Iowa of 1897 in relation to fraternal associations, section 1824 of which is as follows:

“No fraternal association created or organized under the provisions of this chapter shall issue any certificate of membership to any person under the age of fifteen years, nor over the age of sixty-five years, nor unless the beneficiary under said certificate shall be the husband, wife, relative, legal representative, heir or legatee of such member.”

That act was appellant’s charter. Under its provisions appellant could not insure or take into its society as a member a person who was younger than 15 years nor older than 65 years. To do so would be an ultra vires act. It had, however, the power by by-law to limit the ages of persons who would be accepted as members to any age between 15 and 65 years and as already seen had the right from time to time to change those limitations to any other ages within the limits provided by the section above quoted, and as a necessary corollary had the power to waive the enforcement of those by-laws and bind itself by issuing certificates of membership to persons younger or older than the age fixed by its by-laws so long as such person was not younger or older than the ages fixed by the statute under which it was organized. It being trae that the fact that Herman Kresin was 51 years of age when he applied to appellant for membership in its association could be waived by appellant, it follows that if it was so waived then appellant is estopped from setting up his overage as a bar to appellee’s right to recover.

The issues of fact contended for by appellee before the jury under the pleadings were that Herman Kresin fairly and truthfully disclosed to the agent of appellant who solicited him to become a member of the association what his true age was, and that he was then 51 years of age; that he could not read or write the English language; that the application was made out in the English language by the agent of appellant; that she, without the knowledge of Herman Kresin, well knowing that it was untrue, falsely inserted his age in the application as 45 years when in truth it was 51 years, as she well knew; that the said Herman Kresin then in good faith signed said application not knowing of the false statement therein contained; that appellant, well knowing the facts and the age of the said Herman Kresin, issued to him the certificate of membership sued on and from that time until the death of the said Herman Kresin it accepted and received from him all premiums and assessments that became due under the terms of said certificate. These issues the jury found in favor of appellee. It was its province to determine the weight of the evidence and the credibility of the witnesses. There was ample evidence to support the verdict as to most of those issues, in fact some of them were not disputed and as to the remainder there was sufficient, so that we are not warranted in holding that the verdict is manifestly contrary to the weight of the evidence.

The facts being as found by the jury, no doubt can remain that appellant has waived and is estopped from raising, either by plea of ultra vires or otherwise, the fact that the age of Herman Kresin was incorrectly stated in the application.

It has been repeatedly held by the courts of this State that when the truth has been fully and frankly disclosed by an applicant for insurance or admission into a benefit society to the agent of such insurance company or society, and such .agent has falsely recorded or reported the same to or has concealed it from his principal, and the policy of insurance or certificate of membership has issued and the insured had paid all premiums and assessments as the same have matured and the company or society has received and accepted the same, that the knowledge of the agent becomes the knowledge of the principal, and such principal will be held to have waived such irregularities and to be estopped from denying liability on such policy of insurance or certificate of membership. Phenix Ins. Co. v. Hart, 149 Ill. 513; Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541; Provident Sav. Life Assur. Society v. Cannon, 201 Ill. 260; Johnson v. Royal Neighbors of America, 253 Ill. 570; Farrenhoh v. Holm, 237 Ill. 94; Royal Neighbors of America v. Boman, 177 Ill. 27; Independent Order of Foresters v. Schweitzer, 171 Ill. 325.

While Ella Ellison, the deputy who solicited and wrote out the application for membership signed by Herman Kresin, was on the stand as a witness for appellant and was being cross-examined by counsel for appellee, foundation was laid for impeachment by asking her the question: “And after his death, in a conversation that took place in your home, you said to Walter Kresin, his son, he should not have turned that policy in to the company and if he had brought it to you, you would have fixed it all right?” To which question the witness answered “Ho, sir, I had no power.” Later Walter Kresin was called by appellee and testified that she had made the statement to him imputed by the question above quoted. Later Ella Ellison was recalled and asked what she did say in the conversation referred to. The court properly sustained an objection to that question. The issue was not what she said at the time in question but whether she had used the language imputed to her.

The giving of instructions numbered 2, 4, 5 and 13 in the series asked by appellee is complained of by appellant. They all relate to the charter powers of appellant and are in accord with what has already been said in this opinion. Instruction numbered 20 in the series offered by appellant was properly refused. By it the jury would have been informed that if the application in question was signed by Herman Kresin and was untrue, then the issues should be found for appellant. The question whether the falsity of the application was known to Herman Kresin or not is ignored in this instruction as is also the question whether appellant through its agent or officers well knew the truth in relation to the matters stated in the application.

Appellant asked the court to give an instruction numbered 6 in its series. It informed the jury that “the charter powers of a corporation consist of the license or a statute law under which said corporation is doing business.” That definition was incorrect, indefinite and confusing. The terms “license” and “statute law” are not synonymous. Appellant corporation was licensed in Illinois but was chartered in Iowa. This instruction was properly marked “Refused,” but it in some way got among the given instructions and the record recites that it was given to the jury. Appellant cannot be heard to complain that the court gave at its request an improper instruction though it was marked “refused.”

The court gave an instruction at its own instance and in it stated the law fully as favorably to appellant as could be justified. Certainly it has no cause to complain that it was given.

For the reasons given the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    L. DeBoice, Appellant, v. Ira Martin, Executor, Appellee.
    1. Executors and administrators, § 209

      —when estate is liable for attorney’s fees. To entitle one seeking to establish a note as a claim against an estate to the allowance of attorney’s fees as part of his claim, he must he entitled thereto by virtue of some agreement of the testator to pay such fees.
    2. Executor and administrators, § 614*—when attorney’s, fees may be allowed on claim. The provisions in a note and mortgage for the payment of attorney’s fees if judgment he confessed under the power of attorney contained in the note, or if foreclosure proceedings are begun under the mortgage, or if a suit is brought at law to collect the debt, do not authorize the' allowance of attorney’s fees in a proceeding to establish the note as a claim against the estate of the maker.
    Appeal from the Circuit Court of De Witt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    W. F. Gray, for appellant.
    Morris J. Hinchliff, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellant filed a claim in the county court of De Witt county against the estate of Miriam Martin, deceased, consisting of a promissory note dated October 14, 1914, due 3 years after date for $865, drawing - 7 per cent interest per annum, in which it is recited that it is secured by a mortgage on real estate. The total claim filed Avas for $967.06. We learn from the argument of counsel that included in that amount is $100 for attorney’s fees for presenting and representing appellant in regard to this claim. The part of the claim that was for attorney’s fees was contested. It was eventually tried in the circuit court of De Witt county on appeal from the county court. The trial was Avithout a jury, the finding and judgment of the circuit court Avas in favor of appellant and against appellee for $852.72. This is conceded by both parties to be the amount due on the note on the day of the judgment for principal and interest. The court expressly disallowed the claim for $100 attorney’s fees.

The only error argued by appellant is the refusal of the court to allow appellant’s claim for $100 attorney’s fees.

It is obvious that if appellant is entitled to have attorney’s fees allowed as a part of his claim, it must be by reason of some contract wherein the testator agreed to pay the same.

The note sued on contains the folloAving language:

“And to secure the payment of said amount we hereby authorize, irrevocably, any attorney of any court of record, without process, to appear for us in such court, in term time or vacation, at any time hereafter, and confess a judgment in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together Avith costs, and 100 dollars attorney’s fees and to waive and release all errors' Avhich may intervene in any such proceedings, hereby ratifying and confirming all that our said attorneys may do by virtue hereof. ’ ’

The mortgage given to secure the note contains:

“And in case of foreclosure of this mortgage being commenced or suit brought at law upon any or all of said principal or interest notes, the court shall tax up with the costs a sum not to exceed One Hundred Dollars as an attorney’s fee, to be collected as a part of the debt hereby secured, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this State.”

These quotations from the note and mortgage contain all the evidence there is in the record that there was any contract on the part of the testator to pay appellant attorney’s fees under any circumstances. It' will be noted that there are three circumstances mentioned in these two instruments under which attorney’s fees may be collected: First, if judgment be confessed under the power of attorney contained in the note; second, if foreclosure proceedings are begun under the mortgage; third, if suit is brought at law to collect the debt. As we understand appellant’s argument, it is not contended by him that he is making any claim under either the first or second set of circumstancés mentioned. That is, he does not contend that he is seeking a judgment by confession or that the proceeding begun is to foreclose the mortgage, but he does contend that filing and prosecuting a claim in the probate court is essentially a suit at law. In that contention appellant is in error. In Grier v. Cable, 159 Ill. 29, reading on page 36, speaking of a claim filed against the estate of a deceased person, the court says: “In all of its essential features this proceeding is distinctivly statutory.” The mere fact that when a claim is contested so as to necessitate a trial, the trial is to be conducted in the same way in which suits at law are tried, cannot of itself have the effect of converting a purely statutory proceeding into a suit or proceeding at law. In all other respects the proceeding is sui generis and bears no analogy to proceedings conducted according to the forms of the common law. No written pleadings are required. Thorp v. Goewey, 85 Ill. 611; Wolf v. Beaird, 123 Ill. 585. The proceedings are not governed by the technical poles which apply to suits at law. Scheel v. Eidman, 68 Ill. 193. A suit or proceeding at law as those terms are used in section 8 of the Appellate Court Act (J. & A. ¶ 2968) must be understood to mean a suit or proceeding for the presentation and allowance of claims against the estate of deceased persons do not come within that definition seems to us too plain for serious discussion. The foregoing opinion has been cited with approval in Christensen v. R. W. Bartelmann Co., 273 Ill. 346; Lauruszka v. Empire Mfg. Co., 271 Ill. 304; Myers v. Newcomb Spec. Drain. Dist., 245 Ill. 140; Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180; People v. Johnson, 145 Ill. App. 446; Louthan v. Jenne, 151 Ill. App. 77; People v. Peters, 173 Ill. App. 564; Larimer v. Snell, 181 Ill. App. 50; Lavin v. Wells Bros. Co., 195 Ill. App. 108; Carlson v. Avery Co., 196 Ill. App. 262.

This proceeding not being a judgment by confession, a foreclosure proceeding or a suit at law, it follows that there is nothing in this record to warrant a holding that the testator contracted to pay or was in any way liable to pay attorney’s fees in this case •where the note was filed as a claim against an estate. The judgment is affirmed.

Affirmed.


text:
    J. R. Watkins Medical Company, Appellee, v. W. L. Bailey, Executor, Appellant.
    1. Appeal and eebob, . § 1595

      —when error in pleading is cured by verdict. Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or-that the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict.
    2. Judgment, § 220*—when presumption in favor of pleadings will be indulged in. If a defendant does not question the sufficiency of the declaration by demurrer, but joins in raising an issue of fact and submitting such issue to the jury, and judgment is rendered against him, then the court will, on motion in arrest of judgment, indulge in intendments in favor of the sufficiency of the declaration, and will regard as sufficiently alleged any material fact which is fairly and reasonably inferable from the facts stated in the declaration, and if the material fact is fairly inferable from the facts stated and may fairly be presumed to have been proven, the judgment will not be arrested.
    3. Judgment, § 220*—when defective pleading will sustain judgment. The special declaration in an action on a contract accompanied by an affidavit of claim held, while clearly defective and subject to demurrer, sufficient whereon to base a judgment, defendant not having demurred but having filed pleas denying liability and an affidavit of defense, the case having gone to trial on the merits of the issue so made and having made a motion in arrest of judgment.
    4. Trial, § 203*—when directed verdict is erroneous. In an action on a contract, it is error, after all the evidence has been introduced, to grant plaintiff’s motion to withdraw all of the evidence, both plaintiff’s and defendant’s, and instruct the jury to return a verdict for plaintiff for a sum stated, especially where there is no contention that plaintiff was entitled to judgment on the pleadings.
    5. Pleading, § 232*—when refusal to allow verification of plea, is not error. In an action on a contract, the disposition to be made of defendant’s motion, made during the trial after a part of the evidence has been taken and again after it has all been taken, for leave to verify the plea of the general issue is within the sound discretion of the trial court, and such discretion is not abused where, to have allowed it would have put plaintiff to proof of the execution of the contract sued on, which would have been unnecessary under the pleadings as they stood when the trial was commenced.
    6. Guaranty, § 7

      —when guaranty is established. Where a merchant, who had been dealing with plaintiff for some time and had become indebted to plaintiff, desired to continue to deal with him and plaintiff agreed, on condition that the merchant would execute the contract in suit and would secure someone to execute that part of such contract by which the payment of the merchant’s existing debt to plaintiff and for goods thereafter to be furnished the merchant by plaintiff should be guaranteed, and the merchant secured the execution of such guaranty by defendant, the merchant, in securing defendant’s execution thereof did not act as plaintiff’s agent, but the consideration for the guaranty was the extension of time to the merchant and the furnishing of additional goods to him. '
    7. Guaranty, § 12*—what is extent of guarantor’s liability. Where a guaranty is that the original obligor will pay the existing debt and for the goods furnished under the contract of which the guaranty is a part, the guarantor is only liable either as to the debt or the goods on default of the principal obligor, and the burden of establishing such default as to one or both and the amount of such default is on the obligee in an action on the guaranty in which defendant pleads the general issue.
    8. Evidence, § 46*—who has burden of proof. It is for one who asserts the affirmative of an issue to prove it.
    9. Guaranty, § 17*—when guarantor is not liable. In an action on a guaranty that the original obligor will pay plaintiff an existing debt and for goods to be furnished him by plaintiff under the contract of which the guaranty is a part, evidence held not to establish any default on the part of the original obligor and to show that defendant’s motion for a peremptory instruction to the jury to find in his favor should have been granted.
    Appeal from the Circuit Court of Moultrie county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed April 27, 1920.

      J. L. McLaughlin, C. R. Patterson and E. J. Miller, for appellant.
    Jennings & Elder, for appellee; Tawney, Smith & Tawney, of counsel.

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

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

This is a suit on a contract which appellee claims was executed and delivered by B. E. Bailey, now deceased, which by its terms guarantees the payment to appellee of an existing debt of $2,026.42 owing by one Leonard Estes, and the payment for medicines, extracts and other articles ” to be thereafter furnished to the said Estes, under a contract executed by himself and appellee, which is attached to and is by reference made part of the contract sued on.

The first count of the declaration avers the execution by B. E. Bailey, deceased, of the contract sued on and then sets it out in hwc verba, including the part executed by Estes and appellee, and concludes with the following paragraph:

“Whebefobe, and by reason of the said ag’reement above set forth, the said defendants became liable to pay the said plaintiff the said sum of $2,026.42 on or before the first day of March, 1914, and being so liable, they, the said defendants, then and there and in and by the agreement aforesaid undertook and promised and agreed to pay the said sum of $2,026.42 on or before the said first day of March, 1914, at the time and place in accordance with the terms and conditions of the agreement hereinbefore set forth, yet the said defendant and the said Leonard Estes and each and all of them, although often requested and although the first day of March, A. D. 1914, has long since passed, have failed, neglected and refused to pay the said sum of $2,026.42 or any part thereof, according to the tenor and effect of the agreement aforesaid or otherwise; to the damage of the plaintiff of the sum of Twenty-five hundred dollars, therefore it brings this suit, etc.”

That constitutes the entire special count. There was no other averment of any kind in it.

The consolidated common counts follow the special count. An affidavit of claim labeled an affidavit of merits is attached to this declaration in which it is stated that the cause of action is upon the contract set out in the declaration and for the amount expressed in the contract less $38.61, leaving a balance of $1,987.81, which sum it is therein stated neither the said Leonard Estes nor defendant had paid.

Appellant filed the general issue without verification and several special pleas, upon part of which issue was joined. With these pleas was filed an affidavit of meritorious defense, in which it was stated in substance that defendant had a good defense to the whole of plaintiff’s demand;.that the defense relied on was that there was no consideration for making the contract sued on; that defendant was induced to sign the same by false and fraudulent representations ; that defendant did not owe the debt as charged, and some other matters not necessary to refer to in the disposition of this case. The case went to trial before a jury. To support the issues appellee offered in evidence the contract sued on and some proof of certain business deals between appellant and the said Leonard Estes in which certain items of both debit and credit were shown. At the end of all the evidence a motion was made by appellant to instruct the jury to find the issues for the defendant. This motion was heard and denied by the court. The record shows that thereupon the following occurred: “Now comes the plaintiff, at the close of the evidence offered on the part of the defendant, and moves the court to withdraw all the evidence offered on the part of the defendant and plaintiff from the jury, and to instruct the jury to return a verdict for the plaintiff.” This motion was allowed, and the jury were instructed accordingly and returned a verdict pursuant to such, instruction in favor of appellee and against appellant for $1,987.43. It will be observed that this verdict is different in amount from the sum named as the existing debt in the contract sued on and is not the exact amount shown to be due by the affidavit of claim. A motion for a new trial and a motion in arrest of judgment were successively made and denied by the court and judgment was entered on the verdict.

The declaration was clearly defective, and if. its sufficiency had been challenged by a demurrer the demurrer would undoubtedly have been sustained, but it was not so challenged and was accompanied by an affidavit of claim. Instead, pleas denying liability, with an affidavit of meritorious defense, were filéd and the case went to trial on the merits of the issue so made without objection on the part of the appellant. In Gerke v. Fancher, 158 Ill. 375, the court quotes with approval from Chitty’s Pl. 712, 713, the following: “Where there is any defect, imperfection or omission in any pleading, whether in substance or in form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or that the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict.” In N. K. Fairbanks Co. v. Bahre, 213 Ill. 636, on page 638, the Supreme Court says: “On demurrer the intendments are against the pleader, and mere inferences or implicathms from facts stated cannot be indulged in his fa-.,or. If, however, the defendant does not question the sufficiency of the declaration by demurrer, but joins in raising an issue of fact and in submitting such issue to a jury for decision, and judgment is rendered against him, then the court will, on motion in arrest of judgment, indulge in intencbñents in favor of the sufficiency of the declaration, and will regard as sufficiently alleged any material fact which is fairly and reasonably inferable from facts stated in the declaration, and if the material fact is fairly inferable from the facts stated and may fairly be presumed to have been proven, the judgment will not be arrested. ’ ’ See also section 6 of chapter 7, Rev. St. (J. & A. ¶ 305), with the construction placed on it by the Supreme Court in Hartrich v. Hawes, 202 Ill. 334, and in Mayer v. Brensinger, 180 Ill. 110. In view of the authorities cited and of so much of the record as we are at liberty to consider on a motion in arrest of judgment, we hold that the special count in the declaration is sufficient after a verdict to base a judgment upon.

The allowance of plaintiff’s motion to withdraw all the evidence offered, as well that offered by plaintiff as that offered by defendant, and then to instruct the jury to return a verdict for plaintiff for $1,987.43 was manifest error. The basis of the motion was that the evidence introduced by the plaintiff made a case entitling plaintiff beyond question, to a verdict, and that the evidence that had been introduced by the defendant did not tend to dispute or impeach that right. In other words, the basis of the motion was that all the evidence in the record being considered, there was left no room for any conclusion except that the plaintiff was entitled to a verdict. It was not contended in the circuit court and has not been contended here that plaintiff was entitled to a verdict or a judgment on the pleadings, or without some evidence. Yet for some unaccountable reason the mo-lion of appellee was “to withdraw all the evidence on the part of defendant and plaintiff” and to instruct the jury to return a verdict for the plaintiff, and that motion was allowed, at least so the record shows. When all the evidence was withdrawn there was nothing left in the record to base a judgment on. Appellee attempts to justify the motion in its argument by saying the motion- “is in substance a demurrer to the evidence; that is, the motion admits the truthfulness of the evidence admitted and gives to it the strongest possible intendment but denies that the evidence is sufficient either to sustain the case of the plaintiff or the defense of the defendant.” That being true, when the court took the view of appellant and by sustaining its demurrer to its own evidence found that it was not sufficient to sustain the plaintiff’s case, there was, as before stated, nothing left on which to base a judgment for the plaintiff. If there was no evidence to sustain the plaintiff’s case the least the court could properly have done was to refuse to give the peremptory instruction requested by it.

Appellant asked leave during the trial, after part of the evidence was taken and again after it had all been taken, for leave to verify the plea of the general issue. This motion was denied. If the motion had been allowed the plaintiff would have been put to proof of the execution of the contract sued on which, under the pleadings as they stood when the trial began, was not necessary. The disposition to be made of that motion was within the sound discretion of the trial court. It was, under the circumstances, no abuse of the discretion to deny the motion.

There was no error in the rulings of the court on the admission and exclusion of evidence on the question of whether Estes was the agent of appellee. There is nothing in any of it, either that admitted or that excluded, that to our minds tends to show that Estes was the agent of appellee in securing the signature of appellant to the contract sued on. As we understand the situation in this case, appellant had been doing business with appellee, and had become indebted to it in the sum of $2,026.42. He desired to continue to do business with it. Appellee agreed that he should do so on condition that he, appellant, would execute the first part of the contract sued on and would secure someone to execute the last portion signed by appellant by which the payment by Estes of the existing debt and for goods thereafter to be furnished by appellee to him should be guaranteed. The actual consideration for the guaranty was the extension of the time to Estes for the .payment of the existing debt due appellee and the furnishing to Estes by appellee of goods for a specified time thereafter.

The guaranty signed by appellant was that Estes should pay to appellee the existing debt and for the goods furnished under the contract. Appellant, the guarantor, is only liable on his contract of guaranty either as. to the existing debt or for the goods to be furnished, when Estes, the original obligor, is in default. It was clearly necessary in this case for appellee to establish the fact that Estes was in default as to one or both of these items and to what amount before it was entitled to a'judgment against appellant. The plea of the general issue puts appellee to its proof of those facts. It was in full possession of such facts and had the ability to prove what the truth was in that regard, while there is nothing to show that appellant had any knowledge or means of proving whether Estes was in default or not. It is for the one asserting the affirmative of the issue to prove it. The motion of appellant for a peremptory instruction to the jury to find the issue for him, the defendant, raised the question squarely whether there is any competent proof in the record from which the jury could, without doing violence in the eye of the law, find that Estes was in default and, if so, how much. We have read all of the evidence as • abstracted and much of the bill of exceptions, and we can find no evidence even tending to prove that Estes was in default to any amount on the contract sued on. We find that there is no evidence to support the judgment ; that the court erred in allowing appellee’s motion for a peremptory instruction, and in giving the peremptory instruction to find the issue in favor of appellee, and in refusing to instruct the jury to find the issues for appellant. The judgment is reversed and the cause is remanded.

Judgment reversed and remanded.


text:
    Trustees of Schools of Township 17 North, Range 9 East of the Third P. M., Champaign County, State of Illinois, Plaintiff in Error, v. St. Paul Fire & Marine Insurance Company, Defendant in Error.
    1. Insurance, § 80

      —when mortgagee has no right of action on policy. In an action to recover on a policy of fire insurance, where the right of plaintiff under the policy was to have the loss or damage paid to it as its interest as mortgagee may appear and plaintiff purchased the premises at the foreclosure sale for the full amount of the debt and costs and the premises were burned before the redemption period had expired, a demurrer is properly sustained to the declaration.
    2. Mortgages, §' 337*—foreclosure as extinguishing mortgage. On the purchase on foreclosure of the mortgaged premises by the mortgagee for the full amount of the mortgage debt and costs, the mortgage is extinguished.
    3. Mortgages, § 337*—what is effect of sale and purchase on foreclosure. A mortgagee purchasing the mortgaged premises on foreclosure for the full amount of the mortgage debt and costs is before the redemption period expires no longer a mortgagee or trustee nor owner of the premises, but merely the holder of a certificate of sale in the foreclosure proceeding which may or may not ripen into ownership, depending on whether or not the property is redeemed.
    Error to the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.

      Little & Finfrock, for plaintiff in error.
    Le Forgee, Black & Samuels and Green & Palmer, for defendant in error.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Plaintiff in error held a mortgage on certain premises, given to secure a debt. The owner of the premises procured a fire insurance policy covering a certain structure on said premises which contained the following provisions: “Loss or damage, if any, under this policy shall be payable to School Trustees Town 17, Range 9, Champaign Co., Ill., as mortgagee (or trustee), as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act of neglect of the mortgagor or owner of the within described property, nor by any foreclosure, or other proceedings or notice of sale relating to the property nor by any change in the title of ownership of the property * * The mortgage was afterwards foreclosed and the premises were bid in by plaintiff in error for the amount of the judgment and costs. Before the period of redemption had expired the insured building was destroyed by fire and plaintiff began this suit to recover on the policy of insurance under the provisions above quoted. These facts appear from the declaration. A demurrer that was interposed by plaintiff in error to a plea was carried back to the declaration and sustained. Plaintiff in error elected to stand by its declaration and judgment was entered in bar of its action for costs.

The only rights plaintiff in error was given by the terms of the contract of insurance was to have the “loss or damage, if any, under this policy” paid to it as its interest, as mortgagee, appeared. By purchasing the premises in question at the foreclosure sale for the full amount of the debt and costs, the mortgage was extinguished. Plaintiff in error was no longer a mortgagee or trustee or owner of the premises in question. It was merely the holder of a certificate of sale in the foreclosure proceeding which might or might not ripen into ownership according to whether there was a redemption from such sale or not. Rawson v. Bethesda Baptist Church, 221 Ill. 216; Lightcap v. Bradley, 186 Ill. 510. The rights of plaintiff in error under the policy have not been lost or invalidated “by any act of neglect of the mortgagor or owner * * * nor by any foreclosure, or other proceedings or notice of sale relating to the property nor by any change in the title or ownership of the property,” but by reason of the fact that by its own voluntary act in becoming the purchaser of the premises for the full amount of the debt and costs, it extinguished its character as mortgagee and became the holder of a certificate of purchase of the property. The declaration failed to state a cause of action and the demurrer was properly sustained to it. The judgment is therefore affirmed.

Judgment' affirmed.


text:
    Dora Wolkau, Appellant, v. Fred Wolkau, Appellee.
    1. Judgment, § 252

      —when decrees may he amended or altered. Matters determined by the circuit court in a decree and not appealed from or reversed or altered by the Appellate Court on an appeal involving other phases of the decree pass beyond the circuit court’s power to alter or set aside with the ending of the term of that court at which the decree was entered and become res adjudicata as to the parties to the suit.
    2. Appeal and error, § 1725*—what is effect of decision on former appeal. Whatever is determined by the Appellate Court on a former appeal in the cause is res adjudicata and the law of the case and is binding on the parties, the circuit court and the Appellate Court for all time.
    3. Appeal and error, § 1820*—what is duty of lower court when case is remanded. Where a decree of the circuit court is reversed by the Appellate Court and is remanded with specific directions and the parties do not seek to have such order reviewed by the Supreme Court, it is the unequivocal duty of the circuit court to follow the Appellate Court’s mandate and specific directions in the cause, and it cannot readjust any part of its former decree or any part of the pleadings or findings upon which its decree was based except in conformity with the specific directions of the Appellate Court.
    4. Appeal and error, § 1820*—when filing of amended pleading on remand of case is error. Where, on an appeal from a decree of the circuit court on a suit for an accounting, the Appellate Court found that complainant was entitled to an accounting, under the bill as filed, for a specified period and remanded the cause with directions to cause that account to be stated, it is error for the circuit court to permit defendant to change the issues by filing an amended answer.
    5. Courts, § 140*—what is effect of transfer to equity side of court. Transferring a case from the common law to the chancery side of the docket is not the commencement of a new suit.
    6. Interest, § 52*—how computed when suit for accounting is transferred while pending. Where the decree in a suit for an accounting, which had been commenced on the common-law side of the court but was afterwards transferred to the chancery side, provides for interest on the amount found for complainant from the date the suit was commenced, the interest should be reckoned from the date of the commencement of the common-law action, not from the date the suit was transferred.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed April 27, 1920.
    Livingston & Whitmore, for appellant.
    M. A. Brennan, H. M. Murray and Barry & Morrissey, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellant began this suit in the circuit court of McLean county in the first part of December, 1913, against appellee for an accounting of rents said to have been received and retained by appellee during a period of approximately 25 years then last past, from certain real estate owned by the parties as tenants in common. Appellee demurred to so much of the hill as asked for an accounting for the time more than 5 years next before the suit was commenced on the grounds the bill showed bn its face that the statute of limitations had run against that part of the claim. The demurrer was sustained to that part of the bill. Appellant elected to stand by her bill and the part demurred to was dismissed for want of equity. Appellee then answered the part of the bill seeking an accounting lor such rents as had been received during the 5 years next before the suit was commenced, in which answer he admits that he and appellant were and had been since December 4, 1908, owners of the property in question as tenants in common ; that he received and retained during the 5 years next before this suit was commenced $9,519.84 of rents of the property in question and. that appellant was entitled to one-half of that amount or $4,759.92. On the showing made in that answer a decree was entered requiring appellee to pay to appellant $5,859.09, which amount represented appellant’s share of the rents for the 5-year period covered by the answer with accrued interest. Appellant appealed to this court from that part of the decree by which the demurrer was sustained. This court held that the statute of limitations did not run against the claim of appellant for rents received by appellee during the period preceding the 5 years next before the commencement of this suit; that the circuit court erred in sustaining the demurrer and in dismissing that part of said bill for want of ’equity, and that appellant was entitled to an accounting for rents received by appellee for the said time, and reversed so much of the decree and remanded the cause to that court “with directions to overrule the demurrer and order an accounting between the parties as prayed for in the bill from the time .the cotenancy was created to the institution of this suit.” See .Wolkau v. Wolkau, 202 Ill. App. 387. The only question considered by this court on that appeal or presented for consideration was whether appellant was barred by the statute of limitations from having an accounting for the period beginning with the time when the parties became tenants in common and ending with the time covered by the answer of appellee on which the decree was based' requiring appellee to pay appellant the sum of $5,859.09. The correctness of the accounting made in said answer for that period, or of the amount found due from appellee to appellant for that period, was in no way questioned in or altered by this court on that appeal. The original decree stood in that respect unaltered by the remanding order of this court on that appeal.

Whatever was determined by the circuit court in its former decree and not appealed from or reversed or altered by this court on the former appeal passed beyond the power of the circuit court to alter or set aside with the ending of the term of that court at which the decree embodying it was entered and became res adjudicaba as to the parties to this suit.

Whatever was determined by this court on the former appeal of this case is res adjudicaba and the law of this cáse, and is binding on the parties, the circuit court and this court in this case for all time. Union Nat. Bank of Chicago v. Hines, 187 Ill. 109; Baum v. Hartmann, 238 Ill. 519. The part of the decree appealed from was by this court reversed and the cause was remanded to the circuit court with specific directions which made it a final order that could have then been reviewed by the Supreme Court, but neither of the parties saw fit to have it so reviewed and it is now too late for them to do so. It was the unequivocal duty of the circuit court when this case was re-docketed in that court to follow the mandate of this court and the specific directions given to it in the-opinion of this court then handed down. Washburn & Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 119 Ill. 30. Wadhams v. Gay, 83 Ill. 250; Pritchard v. Fruit, 214 Ill. App. 340. That court- had then no right to readjust any part of the former decree or any part of the pleadings or findings upon which that former decree was based except in conformity with the specific directions of this court. People v. Waite, 243 Ill. 156; Spring Lake Drainage & Levee Dist. v. Stead, 263 Ill. 247. It was the duty of the circuit court to examine the opinion of this court and proceed in conformity with it. Pittsburgh, C., C. & St. L. Ry. Co. v. Gage, 286 Ill. 213.

When, this case was redocketed the circuit court, pursuant to the directions of this court, overruled appellee’s demurrer to the bill and ordered him to further answer the bill, that is, to answer that part of the bill to which his former answer did not apply. Such further answer was filed and the cause was referred to the master in chancery to take proof and state an account. This he did and found and reported that appellee owed appellant $22,039.32. Both parties filed exceptions to this report, but before the same was disposed of and at a subsequent term of the court a motion by appellee for leave to file, an amended answer and re-refer the cause to the master in chancery was allowed over the detailed and specific objections and protest in writing filed and urged by appellant. Pursuant to such leave appellee filed an amended answer which was an entire departure from both of his former answers as to the ownership by appellant of the claimed interest in the property described in the bill and challenged appellant’s right to an accounting on a new theory. Appellant filed his exceptions to this answer, which were overruled, and the cause was re-referred to the master in chancery to take proofs and report the same with his findings of law and fact. Later the master filed his report upon the re-reference, having taken no further evidence, and adhering to his former report and findings. To this report of the master appellee filed exceptions and the court overruled part of the same and overruled the exceptions theretofore filed by appellant to the former report and entered a decree in which it is found that appellee has admitted owing appellant $4,759.92, which is the identical amount found due by the former decree for the 5-year period last before the commencement of this suit. The court then computed interest on the $4,759.92 to date, and decreed that appellant have and recover $7,099.79 of appellee. Appellant again appeals to this court.

The decree now before us is in utter disregard and violation of the express and specific directions of this court. It was error to permit a change of the issues by the filing of the amended answer. This court had already found that under the bill filed appellant was entitled to an accounting from the time the parties became tenants in common down to the time this suit was commenced, and the cause was remanded with directions to cause that account to be stated, not to change the issues and again try out the right to an accounting.

The master’s report, to which exceptions were sustained, seems to be in accord with the former rulings and directions of this court and to be supported by the evidence except in the matter of the time for which interest was computed. The master’s report shows a finding that appellant is entitled to interest on the amount of rents found to be in the hands of appellee that should have been turned over to appellant from the time this suit was begun to the date of the finding, which finding we take to be correct, but in computing that interest the master took December 5, 1914, as the date when this suit was commenced. In that the master was in error. This suit was commenced December 3, 1913, on the common-law side of the court and was afterwards and on December 5, 1914, transferred to the chancery side, where it has since been conducted. Transferring the case from the common law to the chancery side of the docket was not the commencement of a new suit. The interest should have been computed from December 3, 1913, to the date of the decree. The decree of the circuit court therefore is reversed and the cause is remanded to that court with directions to overrule all exceptions of appellee to the master’s report and to approve that report in all respects except as to the computation of interest on the sum of $18,538.41, the amount found by the master to be due from appellee to appellant at the time this suit was commenced, and to compute said interest on said amount from December 3, 1913, to the time the decree shall be entered at the rate of 5 per cent per annum and add the amount of such interest when so computed to the said sum of $18,538.41, and enter a decree requiring appellee to pay appellant the total sum so found.

Reversed and remanded with directions.