text:
    Alice Gascoigne, Appellee, v. Metropolitan West Side Elevated Railway Company, Appellant.
    Gen. No. 14,109.
    1. Vabiances—when deemed waived. An objection of variance if not specifically made at the time of the introduction of the evidence nor preserved by appropriate instructions is deemed to have been waived.
    2. Instructions—effect of failure to except to. An instruction which defines the obligations of one of the parties to the cause, if not excepted to, is deemed and taken as the law of the case in that regard.
    3. Negligence—when question of, to he determined hy jury. Whether the defendant in an action for personal injuries ought to have foreseen that such .an accident as did happen might happen and whether the danger of such an accident could have reasonably been anticipated by the defendant, is ordinarily a question to be determined by the jury.
    4. Tbial—when argument of counsel not ground for reversal. A judgment will not be reversed merely -because the plaintiff’s counsel argued that from facts proven by the evidence, a conclusion followed that was not a proper conclusion from such facts.
    Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 6, 1908.
    Addison L. Gardner, for appellant; W. W. Gurley, of counsel.
    John F. Waters and William L. Martin, for appellee; Joel Baker, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $5,000 recovered in an action on the case for personal injuries. Plaintiff was carried as a passenger on defendant’s railway to the Fifth avenue terminal station, where she left the car. To reach the street she had to pass through a turnstile, and in doing so received the injuries complained of. The declaration contains but one count. The allegations as to the negligence of the defendant, and the manner in which plaintiff was injured, are as follows: ■

“That the defendant carelessly, negligently and wrongfully constructed a dangerous and unsafe means of exit for its passengers by and through a certain unsafe and dangerous iron turnstile, through which unsafe and dangerous iron turnstile said plaintiff was directed and it became and was necessary for her to pass in order to reach said Franklin street.

“That said defendant so negligently and carelessly and wrongfully and unsafely constructed and placed said unsafe and dangerous iron turnstile, that the plaintiff, while in the exercise of due care, and precaution, in passing through said iron turnstile, unavoidably was caught by her left foot between one of the horizontal projecting rounds of said turnstile and another stationary round which projected to and beyond the end of said iron round and toward the center of said turnstile, and the left foot of said plaintiff was then caught, as aforesaid, with such force and violence that the plaintiff was thereby then thrown with great force and violence and was struck with great force by other projecting horizontal rounds of said iron turnstile.”

The turnstile in question consists of a hollow iron post six inches in diameter and seven feet high, from which four sets of arms project, two sets at right angles with the other two sets. The arms are made of two-inch iron pipe, and are about two feet ten inches long. At the bottom of the post is a circular iron plate of the same diameter as the post, with twelve grooves in it at equal distances from each other. As the post turns, a dog is intended to fall into each groove, thereby preventing the post from turning in the opposite direction. A spring acts on the dog to press it down into the grooves as the post revolves. From a stationary post similar arms project towards said revolving post, so placed that the revolving arms pass between them. These stationary arms are to prevent a person passing through except in the direction the turnstile is intended to turn. The lower arm of the turnstile passes under the lower stationary arm and is at least eight and a half inches above the floor.

While plaintiff was' passing through the turnstile with her left side towards the revolving post, her left foot was caught in the turnstile. No one noticed her until after she was injured, and as to the way in which her foot was caught her testimony is the only evidence in the record. She testifies that she pushed against the arm in front of her and set the turnstile in motion; that “it got away” from her and the arms behind her struck against her; that her left foot was caught, and that in trying to pull her foot loose she fell against the outer end of an arm of the set of arms in front of her; that the back of her left heel was skinned and the back of the heel of her left shoe rubbed. The testimony of the plaintiff tends to show that her left foot was caught between the lower arm of the set of revolving arms behind her and the floor, and does not tend to prove the allegation of the declaration, that as plaintiff was passing through said turnstile she was, “caught by her left foot between, one of the horizontal projecting rounds of said turnstile and the stationary round which projected to and beyond the end of said iron round and toward the center of said turnstile.” The variance, however, is not between the averments of negligence in the declaration and the proofs, but between the proofs and the averments of the declaration in respect to the causal connection between the negligence averred and the plaintiff’s damages. The objection was not taken to the evidence and the variance specifically pointed out, nor by appropriate instruction to the jury, and the objection for variance must be held waived. C. & A. R. R. v. Byrum, 48 Ill. App. 41; 2 Ill. Law Review, 81.

The trial court instructed the jury that the duty which the defendant owed to the plaintiff was to use reasonable care in the construction and maintenance of said turnstile, and that if they believe that the defendant had used reasonable care in respect thereto, then they should find the defendant not guilty. To this instruction the plaintiff took no exception and the law of this case therefore is that the defendant owed to the plaintiff the duty to usó reasonable care to provide and maintain a reasonably safe turnstile.

The declaration does not aver that the turnstile was , out of repair, but that “the defendant negligently constructed a dangerous turnstile. ’ ’ Whether the turnstile could or could not be reversed is immaterial. The plaintiff was passing through in the proper direction. The failure of the spring to act on the dog, if it was out of repair and did not act, could have had no appreciable effect on the operation of the turnstile in the proper direction.

The question on which plaintiff’s right to recover depends is, whether the turnstile as constructed was reasonably safe? An employe of the company which made the turnstile testified that it was constructed in the usual and ordinary method of constructing turnstiles of that kind and for that use; that his company had constructed other turnstiles of that kind for the Illinois Central Railroad Company and the Sheffield Foundry Company. There is no evidence that any other person was ever injured in passing through this turnstile or any other similar turnstile. The lower arm of the turnstile was at least eight and a half inches above the floor. If it came against - a person passing through, it would strike such person some distance above the ankle. From such striking alone, from a turnstile set in motion by such person, no danger of injury was. reasonably to be apprehended, and none was sustained by the plaintiff. She was injured not by the striking of the arm against her leg, but because her foot was caught between the arm and the floor, and in trying to extricate her foot she fell against the end of the arm in front of her, and was also struck by the arm behind her. It was possible for the defendant to have so constructed the turnstile that such an accident could not happen. The lower arm might have been placed so far above the floor, or so near to the floor, that the foot of a person passing through could not be caught and held between such arm and the floor.

The defendant, for its own convenience, and in the furtherance of its own interest, set up the turnstile at a place where, in a few hours each morning and evening, several hundred persons who had been carried on defendant’s trains must pass through the stile in passing from the trains to the street. If the defendant ought to have foreseen that such an accident might happen if such a turnstile was set up and maintained ; if the danger of such an accident in the use of such a turnstile could have reasonably been anticipated, then defendant was negligent in setting tip and maintaining such a turnstile. The fact that the accident happened in the manner in which it did happen does not prove that the defendant was negligent in respect to the construction of the turnstile. But the fact that plaintiff’s foot was caught and held between the lower arm and the floor, and that she was thereby thrown down and injured, shows that such an accident might happen. Whether the defendant ought to have foreseen that such an accident might happen; whether the danger of such an accident could have reasonably been anticipated by the defendant was, we think, a question for the jury. We cannot say that their conclusion, implied by their verdict, that from the construction of the turnstile the defendant ought to have foreseen that such an accident might happen, that the danger of such an accident could reasonably have 'been anticipated, was not a conclusion the jury might properly reach from the evidence.

Appellant further contends that the damages awarded plaintiff by the jury are excessive. That the plaintiff had a hernia in the left groin at the time of the trial is not disputed. The evidence shows that this hernia first appeared a few days after the accident. Whether it was caused by the injury she then sustained was a question for the jury. The evidence also shows that the bones and ligaments of plaintiff’s foot were injured and that she had not recovered from such injuries at the time of the trial. We do not think that the judgment should be reversed on the ground that the damages are excessive.

Plaintiff’s counsel, in his closing argument, insisted that the fact that the turnstile could be reversed showed that it was out of order, and that if it was out of order the plaintiff was entitled to recover, and the defendant excepted. As has been said, the question .whether the turnstile could be reversed was immaterial under the averments of the declaration and the evidence.' But we do not think that because plaintiff’s counsel argued that from facts proven by .the evidence, a conclusion followed that was not a proper conclusion from such facts, the judgment should be reversed.

The record is, in our opinion, free from reversible’ error, and the judgment will be affirmed. .

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    John Smith, Appellee, v. Emil Eiger et al., Appellants.
    Gen. No. 14,096.
    1. Tender—when need not he made. A tender is not - required where it is apparent that the making thereof would have been a useless act.
    2. Costs—when should he aioarded against successful complainant. Costs should be awarded against the complainant where' he has failed to recover more than that which the defendant had admitted and offered by answer to pay; this notwithstanding ■ no actual tender of the money was made, it appearing that actual tender would have been useless.
    Mechanic’s lien. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded with directions.
    Opinion filed October 6, 1908.
    Statement by-the Court. Appellee filed a bill in the Circuit Court to enforce a mechanic’s lien for labor and material furnished under a written contract. The contract is set forth in the bill of complaint, and provides inter alia that all payments shall be “made upon written certificates of the architect to the effect that such payments have become due and no payment shall be considered due nor shall the owner be considered to have made any default in payment until such written certificates shall have been issued by the architect and presented for payment and proper affidavits and waivers of lien furnished as provided by the mechanic’s lien law of this state.”
    The cause was referred to a master, who found there was a failure on the part of the complainant to prosecute the work provided for under the contract with promptness and diligence and a failure in the performance of some of the agreements contained in the contract; that by reason of such failure on the part of complainant the owner was justified in availing himself of a provision in the contract authorizing him to terminate the-employment of the complainant and procure the work to be finished by another party; that the owner did so and paid one McIver for completing the work required by the contract the sum of $307.04; that after so paying for the completion of the work there was a balance due the complainant of $317.96; that on or about October 16,1905, the architect mailed to complainant’s attorney an architect’s cetrificate for said sum of $317.96, which certificate was on the 25th of October following returned by complainant’s said attorney with a letter in which it was stated that the amount due complainant was “not $317.96 but $492.06,” and that complainant had instructed him “to begin proceedings the last of this week” unless defendants should settle the claim.
    After the bill was filed and at the commencement of the hearing before the master the defendants tendered payment of $317.96, the amount shown to be due under the architect’s certificate, which tender did not include any interest or costs of the suit to date of tender. The master finds that complainant is entitled to a decree awarding him a lien and a personal decree for $317.96, together with interest thereon, and that defendants should be decreed to pay the costs of suit, including an attorney’s fee of $125 to complainant’s solicitor.
    The decree finds the amount due complainant to be $317.96, that no tender of this sum was made to complainant before suit was brought, but such tender was made at commencement of hearing before the master, not however including interest and costs; that upon argument of exceptions to the master’s report defendants tendered again to complainant in open court said sum of $317.96 in legal tender to be applied pro tanto on complainant’s claim, reserving the question of interest, costs and master’s fees, and that complainant declined to accept the tender so made; that there is due complainant $317.96 with interest at' 5% per annum from November 3, 1905, to date of entry of the decree, amounting to $22.15, also $125 solicitors’ fees, and $54.15 paid by complainant for stenographer’s fees, to be-taxed as costs, together with a master’s fees of $178. It is therefore decreed that defendants pay complainant $519.26, the further sum of $178 to the master, also interest on $317.96 from date of the decree to day of payment, together with costs to be taxed.
    From this decree the defendants prosecute this appeal.

      Adler, & Lederer, for appellants.
    William C. Gibons, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

The material question in this case is whether in view of the fact that an architect’s certificate was furnished complainant in accordance with the provisions of the contract, finding $317.96 due him in full of all demands, and that the complainant refused to accept and return the architect’s certificate to the defendants with a claim that the amount due him was “not $317.96 but $492.06,” and a threat of legal proceedings to enforce such claim unless it was promptly satisfied, the defendants were under obligation to make a legal tender of the amount due as stated in the certificate and that failure to make such tender, properly and lawfully subjects them to payment not only of the amount the defendants admitted to be due and offered to pay, but also to payment of interest, solicitors’ fees and all the costs of a proceeding, the result of which is a decree finding that the amount as fixed in the architect’s certificate was in fact correct and stated the exact sum lawfully due him under the contract. The contract as above stated provides that all payments shall be made upon written certificates of the architect and that “no payment shall be considered due nor shall the owner be considered to have made default in payment until such written certificate shall have been issued by the architect and presented for payment.” This is, the contract of the parties. By its terms nothing was due complainant until he presented the architect’s certificate to the defendants for payment. Complainant, however, refused to accept the certificate and returned it, demanding an additional sum, which the chancellor has found he was not entitled to. It is, we think, apparent that in view of the letter of complainant’s counsel returning the certificate to defendants, a tender to the complainant of the amount due under the certificate would have been an act not only not required of defendants under .the terms of the contract but a useless act. In Gorham v. Farson, 119 Ill. 425-442, it is said: “Where a creditor in advance of ah offer to pay or in response to such offer informs the party under obligation to pay that he will not accept the amount actually due in discharge of the indebtedness the party under obligation' to pay is relieved of the duty of tendering the amount actually due.”

The decree in this case while finding that $317.96, the amount offered complainant by the terms of the architect’s certificate, was the exact sum lawfully due him, goes further and saddles the defendants with the costs of the procedure, including solicitors’ and master’s fees for services rendered in an attempt by complainant to recover more than was his due. This is clearly inequitable. To sustain this decree in these respects would tend to ' encourage unnecessary and illegitimate litigation prosecuted for the purpose of enforcing wrongful claims, to defend against which might subject the. defendant, as in this case, to a penalty greater than the amount of the original debt. A court of equity cannot sanction such procedure merely because a useless tender of payment of a sum already refused by the complainant, and not required by the contract of the parties, was omitted. “It will not allow the ends of justice to be perverted or defeated by the omission of an unimportant or useless act, which nothing but a mere technicality could require.” Dwen v. Blake, 44 Ill. 135-141.

Defendants in their answer to the hill of complaint admitted an indebtedness of $317.96, the amount found due complainant in the architect’s certificate, and offered to bring that sum into court and pay it to .complainant. Before any evidence was taken this sum was legally tendered complainant and refused, as was a subsequent tender of the same amount made in open court. It is said in behalf of the complainant that he did not say he would not accept the offer of defendants to pay the $317.96 if tendered to him in money, and that the whole controversy was caused by defendants’ failure to pay something which they afterward came in and admitted was justly due. The facts do not accord with this statement. The certificate was returned to defendants with an express refusal to accept it because it did not award complainant a sum in excess of what was found to be due him. ' When demand was made for such additional amount accompanied with a threat of immediate suit if the demand was not complied with, the defendants were justified in assuming that the complainant would refuse payment of the amount since he had returned the certificate for the same sum. Later when the tender was made before the master, complainant’s counsel refused to accept it because, as he stated, the certificate was for $317.96 and showed no balance due beyond that and “therefore it being a tender in full of all claims against Eiger, the tender is refused.”

The answer to the bill of complaint, however, admitted the issue of the architect’s certificate for $317.96 and stated that this sum the defendants were willing to pay and “hereby offered to bring said sum into court and to pay said sum to complainant.” Having admitted this sum to be due and offered to pay the amount actually found to be all that defendants owed the complainant, there was evidently no occasion for a reference to a master to take testimony to prove what the answer had admitted to be due. The costs of the reference taken to ascertain only what the defendants had admitted to be due were made at complainant’s instance and should not be charged against the defendants. Neither is the complainant entitled to solicitors’ fees incurred in an unsuccessful effort to recover what he was not entitled to. The allowance is erroneous. Manowsky v. Stephan, 233 Ill. 409-412. There having been, however, no tender of costs incurred up to the time of filing such answer made by the defendants but only of the principal sum, the defendants are not exonerated from liability for actual necessary court costs subsequently incurred. Sweetland v. Tuthill, 54 Ill. 217. The commencement of the suit was a demand for payment.

For the reasons indicated the decree of the Circuit Court must be reversed and the cause remanded to that court with directions to enter a decree in favor of the complainant for $317.96 and costs of court other than master’s fees, the expenses of the reference and solicitors’ fees. . "

Reversed and remanded with directions.


text:
    Frank A. Henshaw et al., Appellants, v. Harry W. Christian et al., Appellees.
    Gen. No. 14,102.
    1. Assignments—who not tona fide holders for value without notice. A bank who takes by assignment certificates representing a fund in the hands of a municipal corporation is not a tona fide holder without notice, even though it 'has ■ paid value, where the assignment to the bank is made by the parties designated in such certificates who are therein designated as “trustees.”
    2. Trusts—when action lies to recover trust funds. Held, that the action in this case was properly prosecuted by the trustees in question and that such trustees were not guilty of laches.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded with directions.
    Opinion filed October 6, 1908.
    Statement by the Court. The appellants and one D. S. Place became trustees of the “Chicago Auburn Park Land Trust” in 1892. D. S. Place died in 1898 and the defendant, Harry W. Christian, was made trustee in place of and as successor to said Place. During his lifetime and previous to the formation of the land trust, said Place had been holder in trust of the lands afterward held by the land trust and as such trustee was managing and improving the property. When putting in water pipes said Place made an arrangement with the city of Chicago by which the latter agreed to refund under certain conditions to the owners of the land any money expended for water pipes, and the city delivered to said Place, acting as trustee, certain certificates setting forth that Place had deposited a total sum of $10,959.47 with the city, which would be refunded according to the terms of the certificates. These certificates were made out to Place, who, upon formation of the “Chicago Auburn Park Land Trust,” indorsed them and delivered them to the trustees of said land trust. In 1902 it appears that these certificates were placed in the hands of defendant, H. W. Christian, the successor as trustee of the deceased B. S. Place, apparently on said Christian’s representations that he could effect an arrangement with the city whereby the latter would make a present payment on the certificates. For this purpose and at his request the certificates were placed in his possession and he receipted therefor December 31, 1902.
    Subsequently Christian, by one James H. Christian, applied to the State Bank of West Pullman and on or about January 13, 1903, obtained a loan of $2,500, for which he gave his- own note. He obtained also $2,500 additional upon a note executed by his wife. To secure payment of these notes there was delivered to the bank and the latter accepted as collateral security one of these certificates issued to D. S. Place, and which Christian had obtained possesion of as above stated. It was numbered 79 and called for $7,164.35. In the year 1902 the same bank had loaned to one A. B. Rockwell the sum of $2,500, upon his personal note without other security. This note matured February 4, 1903, and at Rockwell’s request the bank renewed the loan upon receiving as collateral security a like certificate numbered 182 for $3,795.12. This also was one of the certificates issued to D. S. Place which Christian held as trustee representing the Chicago Auburn Park Land Trust, for adjustment with the city. These certificate's were issued by the Department of Public Works of the City of Chicago. Certificate No. 79 was dated November 11, 1890, and certified that D. S. Place had advanced the sum of $7,164.35 for laying Water pipe, and that the amount would be refunded to him without interest from money belonging to the water tax fund in the city treasury when the permanent revenue from said water pipe should equal five cents per foot per annum. This certificate was indorsed when delivered to the appellee bank as follows: “D. S. Place. H. W. Christian, Trustee of Chicago Auburn Park Land Trust.” Certificate number 182, also issued by the Department of Public Works, was of like purport and in like form. It certified that “D. S. Place & Co. have advanced the sum of $3,79412/100” for water pipe, to be refunded upon conditions the same as those stated in the certificate numbered 79. This certificate when delivered to the bank was indorsed “D. S. Place & Co., H. W. Christian, Trustee of Chicago Auburn Park Land Trust.”
    ' The-original bill of complaint prayed that Christian be directed to deliver the certificates to the appellants as trustees, and, on February 4, 1905, the court by final decree so ordered. Failing to obtain them and being unable to find defendant Christian when it was sought to serve him with a writ of attachment, appellants filed a supplemental bill March 31, 1905, making unknown holders of the certificates parties defendant. The State Bank of West Pullman answered, setting up its claim of title to the certificates. The decree appealed from reversed the former decree and adjudges the bank to be the “lawful, absolute and rightful owner” of the certificates which it had sold to satisfy its claims against Christian and Rockwell respectively, and that it had become “the purchaser for value and without notice of any kind or character of any interest of the complainants.”
    Kerr & Kerr, for appellants.
    William E. O’Neill, for appellees.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of the appellee bank inter alia that the certificates were assignable by indorsement and that such assignment vested the property in the bank as assignee under section 4, chapter 98 R. S. The material question, however, is whether the defendant bank took the certificates in good faith, without notice of complainants’ title. It is true as said in Olds v. Cummings, 31 Ill. p. 192, that “there are many cases in which the assignees have been protected against latent equities of third persons whose rights or even names do not appear on the face of the mortgage.” In the case at bar, however, the fact appears by the indorsement of Christian upon the certificates that he held them and indorsed them as “Trustee of Chicago Auburn Park Land Trust.” The indorsement upon which the bank accepted the certificates as collateral security for loans made to Christian and his' wife personally did not purport to be the personal indorsement of Christian. That indorsement did not indicate that Christian had or even claimed any personal interest in the certificates. According to the testimony of the president of the defendant bank the first loan was made on the representations, not of H. W. Christian, but of one James H. Christian, to the effect that the certificate was “a part of Harry’s profits.” Apparently the bank officials did not even interview H. W. Christian himself at all, much less appellants, before making the loan on his personal note. They seem to have entirely ignored the fact pointed out by the indorsement that Christian had no personal interest in the certificate but held it only as a trustee. The money was paid by check, not to H. W. Christian but to James H. Christian, without any conference apparently with the trustee H. W. Christian, who made the indorsement, and without any effort to inquire as to the interest of the land trust. When the other certificate was taken by the bank as collateral to Rockwell’s note no inquiry at all seems to have been made as to the ownership of the certificate or the right of Rockwell to use it as collateral to his own -note. Yet in each case, as we have said, the certificate showed upon its face and gave ample notice to the defendant bank by the indorsement that the Chicago Auburn Park Land Trust was the beneficial holder. Title & Trust Co. v. Brugger, 196 Ill. 96-98, is in point.

It appears to be the contention of the defendant bank that while the alleged assignment to the bank would not deprive the city of Chicago, as maker of the certificates, of any defense it might have “against the original holders of these certificates,” that nevertheless the bank could deliberately disregard the rights of' the real owner, no matter how clear and explicit was the notice of such owner’s interest. We know of no principle of law supporting such contention. As a matter of fact in the case at bar it would be difficult to conceive of more direct notice of the title of the “Chicago Auburn Park Land Trust,” represented by complainants herein, than the indorsement under which the bank claims ownership.

The claim that complainants are estopped from disputing the bank’s title or its power of disposition of the certificate, because it is said they had “clothed Harry W. Christian with all the usual indicia of ownership of the certificates,” has no force in view of what we have said above to the effect that by his own indorsement said Christian notified the bank that he held them only as trustee for the Land Trust. It is not contended that the certificates were negotiable instruments, and there is no room, we think, for reasonable controversy under the evidence as to the ownership of the land trust and the right of appellants thereto as trustees.

By the terms of the trust agreement the trustees are given power to represent the shareholders “in all suits or legal proceedings;” and it is further provided “whether the trust be determined by lapse of time or otherwise” that the power of the trustees shall continue to enable them to prosecute and defend all suits pending at the time of such termination and “to do all other acts necessary or properly incidental” to winding up the trust. It is, we think, clear that this action to recover property of the trust for the benefit of the shareholders is necessary and properly inci-. dental to winding up the trust. We are unable to concur in the contention that complainants are guilty of laches in not commencing the suit within less than a year and eight months after the certificates were placed in- Christian’s hands for adjustment with the city. We are of opinion that the defendant bank was guilty- of negligence in failing to make due inquiry as to the rights of the land trust in view of the notice given it by the indorsement on the certificates.

For the reasons indicated the decree of the Superior Court must be reversed and the cause remanded to that court with directions to enter a decree not inconsistent with the views above expressed.

Reversed and remanded with directions.


text:
    Joseph S. Meyer, Appellant, v. Joseph Sachsel, Appellee.
    Gen. No. 14,111.
    Landlord and tenant—what rights acquired by assignee of former. An assignee of a lessor acquires only the rights of his assignor. If rent has been paid to the lessor by the lessee in advance prior to the divesting of the title of such lessor, a recovery of such rent cannot he had by the assignee from the lessee.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. C. M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 6, 1908.
    Statement by the Court. This is an action in which appellant seeks to recover one month’s rent for premises occupied by appellee under a written lease which had been assigned to appellant by the lessor. There is no dispute as to the amount of the rent, but it appears the defendant had paid the rent in advance for three months, including the month in controversy, to the National Insurance and Investment' Company, from which he has leased the premises in question.
    It appears that appellant’s principal had made an agreement to sell his interest in the premises to said investment company and had conveyed to said company their "entire and exclusive control." The agreement under which the company acquired such control contained a provision in accordance with which the rights of said investment company were subject to forfeiture in case of failure on its part to make certain payments as in said agreement provided. While in possession and control of the premises under said agreement the investment company leased the same to appellee and subsequently, while still holding the lease in question, collected three months’ rent in advance, as above stated, being for the months of May, June and July, 1903. After such advance payment of rent had been made the rights of the investment company acquired under the written agreements were forfeited by appellant and the investment company—the lessor—assigned in May, 1903, to appellant all its rights, title and interest in the lease. Appellant thereupon, on the first of the following month—June, 1903—demanded of appellee the rent for that month. Appellee refused to pay the rent a second time. Appellant thereupon brought this suit, and from an adverse judgment prosecutes this appeal.
    A. W. Brickwood, for appellant.
    Edward U. Fliehmann, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant that the court erred in excluding certain evidence sought to be introduced, and that payment of three months’ rent by appellee, to the lessor in advance on April 30, 1903, was made by appellee at his peril and not in the regular course of business.

The evidence, the exclusion of which appellant com- . plains of, consisted of the original lease under which appellant’s principal held title, the agreements made by him with the National Insurance and Investment Company under which the latter acquired the “entire and .exclusive control of said premises” which it exercised at the time it made the lease to appellee, and evidence that the said investment company had made default and had surrendered its rights under its agreement with appellant’s principal. We find no error in the exclusion of this evidence. It had no bearing upon the only question at issue. Appellant recognizes the lease to appellee made to the latter by the investment company as in full force and effect and is endeavoring to collect the rent under its provisions. Appellee does not dispute .appellant’s right to the lease as assignee of the investment company, the lessor. . The lease itself was introduced in evidence in behalf of the appellant, and shows that it was assigned to appellant May 5, 1903.. It appears that appellee paid directly to appellant the rent due under the lease for the month of August, 1903. Both parties therefore recognize the lease as in force. Their respective rights and obligations are governed by the lease. We find no error in the exclusion of the evidence referred to.

It is further contended in behalf of appellant that payment of the rent in advance was not made in fulfilment of the covenant to pay rent, but was a mere advance to the landlord on an implied condition that he remain entitled to the rent under the lease until the day when payment should become due, and that appellee made such advance payment at his peril, with knowledge, express or implied, that his lessor’s right to the premises was limited. It is not disputed that the lessor had a right to make the lease as he did at the time it was made, but it is claimed that when the forfeiture of the rights of the investment company occurred all subsequently accruing rent became vested in appellant “as completely as the title to the premises.” Appellant, however, as we have said, acquired possession of and title to the lease by virtue of an assignment to him made by the lessor. As such assignee he acquired by the assignment only the rights of his assignor. It would not be contended that the lessor could collect double rent. His assignee acquired no greater right.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Appellee, v. Isaac Paul, Appellant.
    Gen. No. 14,117.
    1. Evidence—effect of calling adverse party as witness. A party who calls his adversary as a witness does not necessarily vouch for his credibility in all respects; he is not entitled to impeach him but he may contradict him by other witnesses' and may prove a state of facts different from that sworn to by the witness in question.
    2. Practice—how findings of master must he preserved for review. In order to preserve for review the findings of the master in chancery exceptions thereto must be presented to the chancellor.
    3. Judgment—ichen proof of, may he made without introduction of judgment roll. An authenticated copy of a judgment may be introduced to prove the existence of such a judgment. It is only where facts are sought to be proved, an estoppel or the like, that it is necessary to introduce the judgment roll.
    Creditor’s bill. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the
    Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 6, 1908.
    Statement fey the Court. Appellee filed a creditor’s bill against one Joseph Herman, his wife and the appellant, based on a judgment for one thousand dollars recovered against said Joseph Herman as surety on a recognizance entered into by him in the Criminal Court of Cook county in November, 1905, for the appearance of one Charles Gann. A forfeiture was had and judgment rendered in the Criminal Court. The bill alleges in substance that at the time of the forfeiture, November 13, 1905, said Herman was possessed of certain real estate, that on that day in order to avoid the claim of appellee on said recognizance he transferred the property in question to his brother-in-law, Isaac Paul, the appellant, and that said transfer was made in bad faith without consideration. The bill prays that the said conveyance may be decreed to be void and the property subjected to the satisfaction of the judgment recovered in the Criminal Court.
    The report of the master finding in favor of appellee was approved by the chancellor and a decree entered accordingly, from which this appeal is prosecuted by Isaac Paul, to whom the property was trnsferred by Herman.
    Blum & Blum, for appellant.
    John J. Healy, State’s Attorney, and Charles F. McKinley, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant that appellee is bound by the testimony of the defendants whom it called as witnesses upon the hearing before the master. These witnesses were Joseph Herman, his wife Golda Herman, and Isaac Paul, his brother-in-law, to whom the property in controversy was transferred by the Hermans upon the same day on which the forfeiture of the recognizance occurred. The forfeiture was had by reason of the failure of Charles Gann, for whose appearance Joseph Herman had entered into the recognizance, to appear for trial in the Criminal Court. The said Herman upon .entering into the recognizance scheduled the real estate now in controversy. The witnesses whose testimony it is. claimed must be deemed conclusive against the complainants who called them, were .all parties .to the conveyance now in question. They stated that the appellant Paul paid $1,800 for the conveyance, and that no fraud' was intended. Paul, who married Herman’s sister, testified that in addition to the payment of the $1,800 he assumed a mortgage on the premises for $700. Thé testimony of Herman and his wife is to .'the same effect. Paul testifies that he paid the $1,800 in cash which he took from his safe, in which he says he always kept his money; that he did not deal with banks. He subsequently admits that he did have accounts with two different banks, and it appears that he got about $200 of the $1,800 he claims to have paid Herman out of one of these banks. His account with these banks shows no such draft. His statement is that he had previously talked with Herman about-buying the property, but that Herman always wanted $200 or $300 more than Paul was willing to pay; that he had offered $2,500 for the property, which Herman had refused, and that suddenly Herman came to him and offered to take $2,500, upon which Paul took the deed and paid Herman the money without asking any questions. ■ Herman’s .explanation is that he sold the real estate because he wanted to pay his debts and for that reason accepted $200 or $300 less than he had before asked for the premises. His disposition of the alleged payment of $1,800, was as he states, first, that he paid a note of $800 of eight years’ standing, which he at once tore up, that the note bore 6% interest and that he paid $30 a year interest on the $800 note, a rather remarkable computation of interest; second, that he paid his son $500 on an alleged indebtedness which had been running some years, but of which alleged debt no evidence is presented; third, that he gave $200 to his wife who was “short in dresses and everything,” and yet according to his testimony was sometimes in the habit of loaning him ten or fifteen dollars, which she saved “from what she gets,” although she has no income. The balance of the alleged $1,800 payment is not accounted for except that he says he had to pay taxes and also a plumber.

There is much that is peculiar in this testimony in other respects, which we deem it unnecessary to refer to. The master’s report sets it ont at length and clearly points out its inconsistencies, not to say absurdities. Although the defendants testify that the conveyance was made in good faith and the consideration actually paid, there is evidence inconsistent with such testimony. Aside from the coincidence that the conveyance was made in immediate connection with the forfeiture of the grantor’s bond, it appears among other evidence that Herman after the transfer collected the rent from the tenant of the premises for one, month and attempted to collect the rent for the succeeding month. The master finds “an absolutely clear case of a fraudulent conveyance,” and we are of opinion the evidence justifies his conclusion. Appellant’s counsel, however, insist that they are under no necessity of presenting “the facts of the case at length,” because it is urged, the complainants “having placed their adversaries upon the stand, are bound to accept their testimony—not merely the part which pleases them, but the other part as well, especially in the absence of all contradiction by other witnesses,” and are therefore concluded by the statements of Herman and Paul that the transaction was made in good faith and the consideration actually paid. In support of this contention we are referred to Sawyer v. Moyer, 109 Ill. 463, and Bowman v. Ash, 143 Ill. 649. It is admitted that it is difficult to reconcile these cases with Podolski v. Stone, 186 Ill. 542; but it is said the two former cases are cited with approval in Am. H. & D. Co. v. Hall, 208 Ill. 600, which itself is cited in C. C. Ry. Co. v. Gregory, 221 Ill. 597. It is urged also that Paul’s testimony that he had no knowledge of fraudulent intent on the part of Herman, his grantor, brings Paul “within the protection of section 5, chapter 59 B. S., since it is said his testimony conclusively shows that Paul had no notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of said grantor.” We are of opinion, however, that unlike Sawyer v. Moyer and Bowman v. Ash, there is in this record evidence that ‘ sufficiently overcomes” the testimony of the defendants. We do not understand that by putting an adversary, nor indeed any witness, upon the witness stand a party thereby necessarily vouches for his credibility in all respects. A party may not impeach a witness whom he voluntarily calls, but he may contradict him by other witnesses and may prove ‘ ‘ a state of facts differing from that sworn to by the witness in question.” Chi. City Ry. Co. v. Gregory, 221 Ill. 597. See Wigmore on Evidence, vol. 2, sec. 896, et seq., especially sec. 916, for a discussion of the subject. We are of opinion the complainant is not concluded by the testimony of the defendants in the case at bar. Evidence of fraud is not usually to. be sought in the testimony of -those accused of perpetrating it, but as said in Bowden v. Bowden, 75 Ill. 143, in “facts and circumstances strong enough to justify the jury in inferring fraudulent intent.” In Treadwell v. McEwen, 123 Ill. 253, it is said that “fraud may be shown by facts and circumstances from which it may be inferred. ’ ’ In Mitchell v. Sawyer, 115 Ill. 650, the court says: “It is much pressed before us that as the evidence upon which complainant’s case depends comes from the evidence the defendants themselves who were witnesses introduced by the complainants, the latter are bound by the testimony of their own witnesses, by what they said in favor of the conveyance as being for good consideration and in good faith; that they may not accept a part and reject the rest of their testimony. A party may not discredit his own witness by direct impeaching testimony, but we are aware of no rule by which one is bound by any testimony his own witness may give.” The statement by a witness that a transaction was upon good consideration and all in good faith is but a conclusion and what he may deem honest and fair, the law may pronounce fraudulent as to creditors; and such statement is of little weight as against facts and circumstances which show the contrary.” In Podolski v. Stone, 186 Ill. 540, a case very much in point, the “distinction between the weight to be given to the testimony of a disinterested witness and that of a litigant party to the record” is pointed out. We are unable to concur in appellant’s contention that the testimony of the defendants is conclusive in his favor' because they were called to testify at the instance of the complainants.

It is further contended in behalf of appellant that the judgment was rendered without jurisdiction of the defendant Herman. The complainants introduced in evidence a certified copy of a judgment rendered in the Criminal Court of Cook county against the defendant Herman. It was objected to on the ground' that it was not a complete judgment roll, and was insufficient; that it was necessary to show specifically that the judgment was based upon service on the defendant, for what the principal was indicted and before what court the recognizance was entered into. It appears, however, that no objection of this character to the master’s findings was made or preserved by exceptions to the report presented before the chancellor. The proper practice in this respect is pointed out in Hurd v. Goodrich, 59 Ill. 450-455. See also Cheltenham Imp. Co. v. Whitehead, 128 Ill. 279-284, where it is said, “the master’s report must be held conclusive of all questions covered by it and not excepted to.” See also Kinsella v. Cahn, 85 Ill. App. 382.

' The authenticated' copy of the judgment was introduced in evidence to prove the existence of such judgment and was sufficient for that purpose as held by this court in Chamberlain v. Britton, 136 Ill. App. 290. It is where facts are sought to be proved, an estoppel or the like, that it is necessary to introduce the judgment roll. The opinion of the Supreme Court in that case affirming the judgment of this court is reported in 234 Ill. 246.

Finding no material error in the decree of the Superior Court, it will be affirmed.

:"Affirmed.