author: Mr. Justice Holdom

text:
    Douglas Company, Defendant in Error, v. Southern Railway, Plaintiff in Error.
    Gen. No. 24,911.
    1. Commerce, § 4

      —when shipments of goods constitute interstate commerce. When a shipper forwards goods from one State to a certain distributing point in another State, with the intent of thence forwarding them to some one or several of its customers, to whom it has traveling salesmen selling its goods, located at other different points in the same State as the distributing point, and thence forwards the shipments to such points, the said shipment or shipments are in interstate commerce during the entire transit from the point of origin to final destination, and the mere fact that the shipper did not know at the time the shipment originated which particular customer would eventually receive any particular part of a shipment or any particular portion of the goods would make no difference.
    2. Commerce, § 4*—whaf determines character of shipment as interstate or intrastate commerce. The ultimate destination of the shipment determines its character as interstate or intrastate commerce.
    3. Commerce, § 4*—interstate character of shipment as not terminated 6y its arrival at intermediate point from which new Mils of lading are- issued. The interstate character of a shipment is not terminated by.its arrival at an intermediate point from which" new bills of lading are issued to the points of final destination, such points being directed by the shipper. '
    4. Commerce, § 4*—what determines whether shipment is interstate. The essential nature of the movement, not the character of the bill of lading, determines whether or not the shipment is interstate.
    5. Commerce, § 4*—how long interstate character of shipment lasts. When a shipment has once become interstate commerce, that character attaches to it until it reaches its final destination.

      6. Commerce, § 4

      —hoto change of character of shipment from, interstate to intrastate effected. To establish an intrastate character in a shipment interstate in its inception, there must be actual, good-faith delivery of the shipment to the consignee and actually a new and independent shipment by such consignee to the ultimate destination, while the article is physically present and in the consignee’s possession, and such change in character is not effected by the existence of an original and continuing intention to so reship in intrastate commerce for the saving of expense.
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed December 8, 1919.
    Pomeroy & Martin, for plaintiff in error; Claudian B. ISTorthrop, of counsel.
    Gallagher, Kohlsaat & Rinaker, for defendant in error ; E. B. Wilkinson, of counsel.

      See Illinois Notes nicest, 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 a ciion number.

   Mr. Justice Holdom

delivered the opinion of the court.

In the trial court plaintiff had judgment for $514.29 on a finding of the trial judge to whom the cause was submitted on a stipulation of fact, and defendant brings the record to this court for review on a writ of error.

The crucial question, on the decision of which the result of this cause must rest, is: Were the shipments of the freight in controversy shipments in intrastate or interstate commerce?

There is no dispute regarding the facts which were stipulated into the record and which in brief are, that plaintiff is a corporation resident at Cedar Rapids, Iowa, and manufactures and ships starch; that defendant is a railroad corporation existing under the laws of Virginia and operates a system of railroads between and in certain States, including, among others, South Carolina; that during the preceding 5 years it had on file its interstate tariffs with the Interstate Commerce Commission and intrastate tariffs with ,the several railroad commissions of the States in which it operates, including South Carolina,, which tariffs show the schedules of charges upon its lines, as well as charges in connection with traffic passing over its lines and other railroads and steamship lines; that plaintiff from 1013 to 1916 employed traveling salesmen to sell its products to cotton mills located in Virginia, North Carolina, South Carolina and Georgia, to whom they sold starch to be delivered at their mills and who forwarded the orders so taken to plaintiff at Cedar Rapids; that in the conduct of its business plaintiff, to make as early deliveries as possible to its customers, adopted a course of business, which was followed at the time the shipments involved in this cause were made, whereby from time to time it shipped from its plant at Cedar Rapids a large number of carloads of starch by rail to Baltimore, thence by steamship to Charleston to its agent, J. F. Leonard, as consignee, the freight to Charleston in each instance being paid by plaintiff, and where the shipments were unloaded on the docks of the steamship company and placed in its warehouse on its said docks, 180 bags of the shipments involved in this suit being delivered to F. W. Wagner, a wholesale grocer in Charleston; all other shipments were transferred at Charleston from the warehouse and docks into railroad cars and shipped under instructions to plaintiff to the several cotton mills where the starch had been sold and where it was ultimately consumed, the freight from Charleston to the final destination being paid by plaintiff; that upon the arrival of the shipments at Charleston plaintiff sometimes immediately reloaded them into railroad cars and sometimes left them at the dock for the free time allowed by the tariff of the steamship company, and sometimes for periods of time longer than the free time, in which latter case the usual storage charges provided by the tariff of the steamship company were paid by plaintiff. The shipments were thereafter loaded by plaintiff into ears and delivered to its customers, who operated cotton mills, where the starch was used, and that for each separate shipment from Charleston to these cotton mills a new bill of lading was taken out for plaintiff or its agent; that plaintiff’s customers paid plaintiff direct at Cedar Rapids for the starch upon receipt of the shipments; that the shipments from Cedar Rapids to Charleston were in minimum car lots of 200 bags, minimum weight 42,000 pounds; that the shipments from Charleston to plaintiff’s customers ranged from five to fifty bags of 280 pounds each; that when in car lots the total weight was 30,000 pounds or more; that when the shipments left Cedar Rapids it was not known to whom any particular shipment would go; that plaintiff knew that such shipments would not permanently remain in Charleston .except such starch as might be sold to F. W. Wagner, a wholesale grocer in Charleston, and that all the shipments would first go to Charleston and be there disposed of as above recited, and from thence shipped to cotton mills in South Carolina and other States where the starch would be ultimately used pursuant to orders taken by plaintiff’s traveling salesman; that during all the time covered by the shipments involved in this suit defendant had filed with the Interstate Commerce Commission tariff rates applicable to interstate shipments from Charleston to the several destinations of the shipments of the starch involved in this suit, and also had on file with the. Railroad Commission of South Carolina the tariff rates applicable to intrastate shipments from Charleston to the several destinations of the shipments involved in this suit; that a dispute arose between the parties as to whether the shipments here in dispute, so far as their movements between Charleston and the several cotton mills within the State of South Carolina were concerned, should be governed by interstate or intrastate tariff; that defendant insisted upon and collected at the interstate tariff rate, which was higher than the intrastate rate, and that the question of what tariff should be applied depends entirely upon whether or not the several shipments from Charleston to the cotton mills in South Carolina were interstate or intrastate shipments; and if the court finds that the shipments in question were interstate shipments, then the finding should be for the defendant; and if the court finds that such shipments were intrastate shipments, then the finding should be for plaintiff for the amount of the overcharge agreed to be the amount of the judgment in the record.

The defendant tendered the following as a proposition of law to be held by the trial judge, which he refused: !

“4. The court holds as a proposition of law that when a shipper forwards goods from one State to a certain distributing point in another State, with the intent of thence forwarding them to some one or several of its customers to whom- it has traveling salesmen selling its goods located at other different points in the same State as the said distributing point, and thence forwards such shipments to said points, then the said shipment or shipments are in interstate commerce during the entire transit from the point of origin to final destination, and 'the mere fact that the shipper did not know at the time the shipment originated which particular customer would eventually receive any particular part of a shipment or any particular portion of the "nods would make no difference.”

If this states, as we think it does, a correct principle of law based upon the agreed facts in this case, then the judgment of the Municipal Court must be reversed.

From the stipulation of facts it is clear, we think, that all the earmarks of interstate shipment as uniformly held in the federal decisions are here present.

The transactions in evidence cover a period of more than 4 years and during all this time and in every case the starch, the subject of the several shipments, was owned by plaintiff, 98 per cent of which were transshipped at Charleston, and in fact all shipments were transshipped with the exception of 180 bags—less than one car—sold to F. W. Wagner, a wholesale grocer at Charleston. These shipments, except the Wagner sale, were in contemplation of law in transit until the ultimate destination was reached and the cotton-mill owners who had made purchases thereof through salesmen of plaintiff had received their shipments; not until final delivery to the cotton-mill owners did the title of plaintiff become divested, and not until that time had the shipments ceased to be in course of transit from plaintiff at Cedar Rapids to the purchasers at the ultimate destinations at the several points in South Carolina, exclusive of Charleston. The delivery to Leonard, the agent at Charleston, was not the ultimate delivery intended at the time plaintiff made the initial shipments at Cedar Rapids. These shipments were all by rail to Baltimore, Maryland, thence by water route to Charleston, where, with the exception of the Wagner shipment, three courses were pursued. Some were transferred from steamship and reloaded upon railroad cars to ultimate destinations to purchasers in various parts of South Carolina; some were stored in the warehouse of the steamship company, and some were left on the steamship company’s docks during the free time allowed by the tariff of the steamship company and sometimes for a period longer than the free time. All of these shipments were thereafter loaded into cars for the plaintiff and delivered to its cotton-mill customers at various points in South Carolina. All freight charges were paid by plaintiff, as also the warehouse charges, and the several shipments were paid for to the plaintiff at Cedar Rapids by the several cotton-mill purchasers upon their receipt, so that from the time the shipments left Cedar Rapids and during all the time of their transportation both- by land and water, including their storage upon the dock of the steamship company and in the warehouse of the steamship company and until their arrival at their ultimate destinations to the cotton-mill purchasers, plaintiff was the owner; and during these several states of carriage they were in course of transportation in commerce between the States and were consequently interstate shipments, as the ultimate destination determines the character of the commerce. (Peoria & P. U. Ry. Co. v. Corning & Co., 266 Ill. 515.) Charleston was the point of disembarkment from the water part of' the route for reloading on ears to the places of ultimate destination. Plaintiff maintained no place of business in Charleston, nor did it have any warehouse there. None of its starch was either used or sold there. Orders from customers through traveling salesmen were sent direct to plaintiff at Cedar Bapids, and instructions were sent from there to Charleston regarding the continuation of the shipments from Charleston to the several cotton-mill purchasers.

The case under discussion is analogous to that of Swift & Co. v. United States, 196 U. S. 375, the distinctive features being that in this case we are dealing with starch, while in the Swift case the court was dealing with cattle, and the court says:

“When cattle are sent for sale from a place in one State, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce. What we say is true at least of such a purchase by residence in another State from that of the seller and of the cattle.”

Plaintiff contends that the interstate .character of the shipments ceased on the arrival of the several shipments at Charleston, where new bills of lading, were issued to points of final destination, destinations directed by plaintiff from its place of business at Cedar Bapids. What the court said in Illinois Cent. R. Co. v. DeFuentes, 236 U. S. 157, is, we think, a sufficient answer to this contention; it said, inter alia:

“The contention for appellees that switching cars at junctions and terminals ‘is only interstate commerce when performed as a part of the interstate movement on a through rate or bill of lading under tariff authority’ is contrary to the doctrine established by opinions of this court in the cases cited above”—which were McNeill v. Southern R. Co., 202 U. S. 543; Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498; Ohio R. Commission v. Worthington, 225 U. S. 101; Texas & N. O. R. Co. v. Sabine Tram Co., 227 U. S. 111; Louisiana R. Commission v. Texas & P. R. Co., 229 U. S. 336.

The essential nature of the movement, and not the form of the bill of lading, determined the character of the commerce involved. When the character of interstate commerce has once been acquired it continues until the load reaches the ultimate point of destination intended, which does not necessarily depend upon the form of the bill of lading or whether there has been a transshipment en route with a new bill of lading for the balance of the journey. As said in Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498:

“To hold otherwise would be to disregard, as the Commission said, the substance of things, and make evasions of the act of Congress quite easy. It makes no difference, therefore, that the shipments of the products were not made on through bills of lading, or whether their initial point was Galveston or some other place in Texas. They were all destined for export, and by their delivery to the Galveston, Harrisburg & San Antonio Railway they must be considered as having been delivered to a carrier for transportation to their foreign destination, the terminal company being a part of the railway for such purpose.

“The case, therefore, comes under Coe v. Errol, 116 U. S. 517, where it is said that goods are in interstate and necessarily as well in foreign, commerce when they have ‘actually started in the course of transportation to another State or been delivered to a carrier for transportation. ’ ’’ Ohio R. Commission v. Worthington, 225 U. S. 101; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371.

In the Harold case, supra, a carload of grain was shipped from Tanks, Nebraska, consigned to Topeka, Kansas, with directions to notify the Santa Fe for shipment and then forward to Elk Falls, Kansas. This was held to be an interstate shipment. Western Oil Refining Co. v. Lipscomb, 244 U. S. 346.

Plaintiff relies, in support of its contentions, upon the cases of Gulf, C. & S. F. R. Co. v. Texas, 204 U S. 403; Chicago, M. & St. P. Ry. Co. v. State of Iowa, 233 U. S. 334, and kindred cases.

These cases are not in point, because the controlling features in the instant case are lacking in the cases supra. There is not present in any of these cases continued ownership by the consignor to the point of ultimate destination, neither was there such ownership at the time the journey was interrupted for the purpose of reshipment to ultimate destination. Chicago, M. & St. P. Ry. Co. v. State of Iowa, supra, was a case where a shipment of coal was made from Illinois to Davenport, Iowa, to a consignee at Davenport, the certainty in regard to which shipment ended at Davenport. Further shipment, if any, was to be determined after the arrival of the coal at Davenport by the consignee there. On this point the court said:

“The coal was under the control of the consignee, and he could sell it in transit or at Davenport or reconsign it to a point on respondent’s railway, or any other railway, at his own discretion.”

And the court further said:

“The Supreme Court of the State took the same view of the facts that the Commission had taken and accordingly held that the shipments were intrastate. The court said that the facts showed that the coal was originally consigned to the coal company in Davenport, that it was there held until sales were made, that the consignee had taken delivery, paying the freight to the initial carrier and assuming full control. ’ ’

These facts are so variant from those in the case before us as to make the Davenport case 'inapplicable.

In Gulf, C. & S. F. R. Co. v. Texas, supra, the reshipment from Texarkana, Texas, to Goldthwaite, Texas, was on the order of a consignee. This destroyed the interstate character of the shipment so far as its rerouting from Texarkana to Goldthwaite, Texas, was concerned and in this regard is not comparable to the facts in the instant case.

In order to establish an intrastate shipment in a shipment in its inception interstate, there must be, as held in Settle v. Baltimore & O. S. W. R. Co., 249 Fed. 913, as the ultimate test, actual good-faith delivery of the shipment to the consignee and actually a new and independent shipment by such consignee to the ultimate destination, while the article is physically present and in the possession of such consignee, and as said in case, supra, “that the effect of such good-faith delivery, possession and independent reshipment is not, as a mere matter of law, converted into an interstate shipment by the existence of an original and continuing intention to so reship in intrastate commerce for the saving of expense.” So in the case under discussion, if the shipments in dispute had been to a consignee at Charleston, then the reshipment within the State by such consignee would be an intrastate shipment. However in this case the starch was at all times owned by plaintiff, as much so. at Charleston as at Cedar Rapids at the time of reshipmént to ultimate destinations to the cotton-mill purchasers, and as such ownership continued until the points of ultimate destination were reached. These are the essential elements which stamp the shipments as interstate commerce from the point of departure in Cedar Rapids to the arrival at the ultimate destinations in South Carolina.

For the foregoing reasons and under the authorities 'cited, we hold that it was error for the court not to hold proposition 4 above recited as the law of the case, and likewise erred in finding that the shipments were in intrastate and in not finding that they were in interstate commerce. For these reasons the judgment of the Municipal Court is reversed, and as there can be no recovery under the stipulation of facts in the record, a judgment of nil capiat and for costs is entered in this court.

Reversed with judgment of nil capiat and for costs.


source: Caselaw Access Project

license: Public Domain

text:
    Jennie N. Morganroth, Appellant, v. Abe Pink, Appellee.
    Gen. No. 25,007.
    1. Mortgages, § 223

      —what is relation of parties upon conveyance of property and assumption of mortgage debt by grantee. As between a mortgagor and the grantee of mortgaged property who assumes the mortgage debt, the grantee becomes the principal debtor and the grantor the surety for the payment of the debt; as between the grantee and the mortgagor, the property becomes the primary fund, while the mortgagee may hold both as principal debtors unless the mortgagee has consented to accept the grantee as sole, principal debtor.
    2. Mortgages, § 226*—when agreement of holder of note and mortgage to look for payment solely to subsequent grantee of premises not implied. An agreement on the part of the legal holder of a note and mortgage to look solely for payment to a subsequent grantee of the mortgaged premises assuming the mortgage debt, cannot be raised by implication of law from the fact that the holder extended the time of payment without notice to or consent of the maker.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridlbt, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded with directions.
    Opinion filed December 8, 1919.
    Rudolph D. Huszagh, for appellant.

      Mayer, Meyer, Austrian & Platt, for appellee.

      See Illinois Notes Big-est, Vols. XI to XV, and Cumulative Quaitirrly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

A judgment was confessed on a note with cognovit in the usual form made by defendant to his own order for $9,000 with interest at 5 per cent, payable November 14, 1914. This note he indorsed and delivered to plaintiff, to secure which he executed and delivered a trust deed conveying certain real estate in Chicago, which he subsequently sold for $21,500, the deed of conveyance being made subject to the trust deed, which the grantee assumed and agreed to pay.

One Eosa Emmo obtained title by mesne conveyance and a like reservation of assumption of the trust deed incumbrance was made in the deed to her. About the time when the note matured, appellant agreed with Eosa Emmo to extend the time of payment of the note 5 years with interest at 6 per cent per annum. Of this extension of the time of payment defendant, the maker of the note, had no knowledge. On motion of defendant he was let in to plead, the execution of the judgment in the meantime being suspended. Defendant pleaded the general issue and three special pleas, which were afterwards supplemented by two additional special pleas. In these pleas the facts above recited were het out as a defense.

It was also averred in the pleas that at the time of the original maturity of the note the value of the property conveyed in the trust deed was greater than the amount at that time due on the note, but that at the time of the entering of the judgment the property had greatly deteriorated in value and was then worth less than the amount due upon the note. To these special pleas plaintiff interposed demurrers, which, being overruled and plaintiff electing to stand by her demurrers, defendant withdrew his plea of the general issue and the judgment of nil capiat from which this appeal is prosecuted followed,

Nowhere in the pleas of defendant is it averred or charged that plaintiff was a party to or cognizant of the mesne conveyances through which Rosa Emmo ultimately acquired title, nor that she had any knowledge of, or acquiesced in, the reservation in the covenants in the deeds in the respective conveyances, or either of them, that the grantees assumed or agreed to pay as part of the purchase money or otherwise the trust deed incumbrance securing the- note in suit. On the contrary, it is urged by defendant that the act of extending the time of payment of the note without defendant’s knowdedge had the effect automatically of changing the relationship of the parties, so that the grantees under defendant became principal and primarily liable to pay the debt secured by the trust deed, and that the defendant, the maker of the note, became in force of these circumstances simply a surety and that by operation of law by reason of the conditions already enumerated became a discharged surety.

We think these contentions are fallacious under the law on this subject as it exists in this State.

The questions here involved we do not regard as open in this court. They have been settled by the decision' of this court in Seeman v. Mills, 197 Ill. App. 589, and all the other questions, except that of the legal effect of extending the time of payment without the maker’s consent, have been passed upon in Elwell v. Hicks, 180 Ill. App. 554; Fish v. Glover, 154 Ill. 86; Webster v. Fleming, 178 Ill. 146; and Scholten v. Barber, 217 Ill. 148. These cases, we hold, are decisive of the rights of the parties to this appeal.

As between a mortgagor and the grantee of mortgaged property who assumes a mortgage debt, the grantee becomes the principal debtor and the grantor the surety for the payment of the debt. The analogy extends no further. /As between the grantee and the mortgagor the property becomes the primary fund while the mortgagee may hold both as principal debtors unless the mortgagee has consented to accept the grantee ©f the maker of the note and trust deed as sole principal debtor, and in Webster v. Fleming, supra, it was held that:

“The mortgagor and the grantee from the mortgagor, who assumes the payment of the incumbrance upon the property, are both liable as principal debtors to the mortgagee, unless the latter has released the mortgagor from his liability, and has agreed to look solely to the purchaser from him for payment of the mortgage debt.”

In Scholten v. Barber, supra, the same question here present was decided, the court saying:

“In this State the rule is, that as between the mortgagor and his grantee who assumes the payment of the incumbrance, the grantee becomes principal debtor and the mortgagor becomes his surety. But the mortgagee is in no wise affected by the agreement to which he is not a party. He may disregard it and bring his action against the original debtor only, or he may accept the promise made for his benefit, and, treating it as an additional remedy, bring his action against the grantee. If the agreement is accepted by the mortgagee, each party to it is an original promisor for the payment of the incumbrance, but the contract rights of the mortgagee cannot be changed by. any arrangement between the mortgagor and his grantee unless the mortgagee agrees to such change.”

The Supreme Court in these cases, when it refers to an agreement by the mortgagee, means an agreement in fact, not one resting in any presumption of law, because there is no such presumption. Furthermore, such holding does no violence to vested rights. The maker of the note and trust deed could at any time by payment have discharged his liability and become subrogated to the rights of all the grantees under him who had assumed the payment of the indebtedness in the conveyances received by them respectively. In the instant case defendant could have paid the note before the property had depreciated in value if he had seen fit so to do.

Again, as the court said in Fish v. Glover, supra, so we say: “It would be a singular doctrine, if the contract rights of the mortgagee could be changed by any arrangement between the mortgagor and his grantee, to which the mortgagee was not a party. ’ ’

In Seeman v. Mills, supra, after the note in controversy secured by a real estate mortgage fell due, an agreement was made between the holder and a subsequent purchaser for an extension of the time of payment without the knowledge or consent of the maker of the note, and this court said:

“Defendant says that because of these facts the grantee * * * became the principal debtor, and the defendant, the mortgagor, became the surety; that the agreement to extend the time of payment operated to release the defendant from the debt. This is not the law. Where a grantee under a deed assumes the debt of the mortgagor, the relation of principal and surety, if there is such a relation, only applies as between themselves. As to the mortgagee, the grantee becomes an additional.promisor-only.”

In other words, the maker of the note and mortgage is primarily liable to the legal holder within the statute of limitations until the note has been paid either by himself or some one for him, unless there is an agreement between such maker and the mortgagee to look solely to such subsequent grantee for payment. 'Such agreement is not one raised by implication of law from the fact of the- extension of payment without notice to or the consent of such maker.

From what we have said it follows that the court erred in not sustaining plaintiff’s demurrers to defendant’s five special pleas, and for that error the judgment of the Superior Court is reversed and the cause is remanded to that court with directions to sustain the demurrers to said five pleas.

Reversed and remanded with.directions,


text:
    Universal Portland Cement Company and Concrete Steel Products Company, Appellants, v. Sisters of Charity of St. Joseph, State of Illinois, Appellee.
    Gen. No. 25,101.
    1. Mechanics’ liens, § 195

      —when general contract is admissible in evidence in foreclosure proceeding. In a proceeding to foreclose a mechanic’s lien for the value of materials furnished under a contract with the general contractor, the general contract is admissible in evidence, without regard to whether or not section 21 of the Mechanics’ Lien Law in force July 1, 1913 (Call. 1916 Stat. If 7159), which was subsequent to the date of the contract and subcontract, operates retroactively.
    2. Mechanics’ liens, § 5*—how lien laws are to be construed. Mechanics’ liens laws are in derogation of the common law and are to be strictly construed when in conflict therewith.
    3. Mechanics’ liens, § 5*—right to indulge presumption in construing lien laws. In construing mechanics’ liens laws, no presumption can be indulged as being included which does not specifically appear.
    4. Mechanics’ liens, § 5*—retroactive effect of amendatory law of 191S. Section 21 of the Mechanic’s Lien Law in force July 1, 1913 (Call. 1916 Stat. K 7159), is not to be given a retroactive effect so as' to make it applicable to contracts executed before it went into effect, but the rights of the parties to such contracts are to be adjudged according to the law in effect when they were executed.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Rehearing denied December 22, 1919.
    Knapp & Campbell and Ashcraft & Ashcraft, for appellants; John R. Cochran, of counsel.
    Fisher, Boyden, Kales & Bell and Frank A. O’Donnell, for appellee; J. F. Dammann, Jr., of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

In this proceeding an attempt is made by the petitioners to foreclose a mechanic’s lien for the value of certain materials furnished under a contract with the general contractor. The general contractor made default in his contract and the Sisters of Charity proceeded to and did complete the structure contracted to be erected and completed by such general contractor, after payment for which there remained no money due to the general contractor for work done and materials, furnished under his contract with the Sisters of Charity. There is no controversy regarding the amount due the petitioners in the event they are entitled to maintain their respective liens.

The original contract was made by the Sisters of Charity with McEvoy & Company and is dated May 2, 1913. Work under this contract was commenced on the 12th day of the same month. The contract between McEvoy & Company and the appellant, the Universal Portland Cement Company, was in writing and was executed May 8, 1913. Work under that contract was commenced on the 31st day of the same month. The contract with the other appellant, the Concrete Steel Products Company, was made with McEvoy & Company, dated May 8, 1913, and. work commenced thereunder the same day. All work and material furnished by appellants were done and furnished under the terms of these two contracts. On a hearing under a stipulation of fact appellants’ petitions were dismissed. In an attempt to reverse the decree dismissing the petitions, appellants bring the record before us for review.

The general contract with McEvoy & Company is written upon a printed form. The following provision, however, is not contained in the printed portion of the form, but is typed therein, and is the provision here in dispute. It reads:

“The work called for by this contract, and any part thereof, shall be delivered free from apy .and all liens, claims or encumbrances whatsoever, against the right, title and interest of the party of the second part.”

Prior to the date of these contracts the courts of review in this State had construed the phrase, “shall be delivered free from any and all liens, claims or encumbrances. whatsoever, against the right, title and interest,” etc., to mean that no materialman or subcontractor could maintain a lien against the property; that they were relegated to the general contractor for their remedy. W. W. Brown Const. Co. v. Central Illinois Const. Co., 234 Ill. 397.

Appellants rely upon section 21, chap. 82, Mechanics’ Liens Act (Call. 1916 Stat. 7159) which went into force on July 1 subsequent to the date of the contract, and two subcontracts above mentioned. "While section 21 leaves such a contract binding upon the parties to it as theretofore against a subcontractor or material-man, it enacts a new rule of evidence which makes it necessary to prove, before a subcontractor or material-man can be concluded by such provision in the general contract, one of the following facts: (1) Actual notice to the subcontractor “before any labor or material is furnished by him”; and (2) constructive notice by recording in the office of the recorder of deeds the contract prior to the commencement of the work upon the house or building, etc., or within 10 days after the execution of the principal contract, or not less than 10 days prior to the contract of the subcontractor.

Appellants insist that the 1913 statute must be given a retroactive effect and held to control the rights of the parties to this litigation. Appellants say that the two questions presented by this appeal are: First: Assuming that the legal effect of the contract between the appellee and the principal contractor is that no lien may be filed or maintained by any one, was the contract admissible in evidence against appellants under section 21 of the 1913 Act? Second: Is the contract between appellee and the principal contractor one, the legal effect of which is that no lien may be filed or maintained by any one against the property of the appellee?'

These questions, however, resolve themselves into but one proposition, viz.: Is the 1913 statute in its effect retroactive and therefore available to appellants ?

Appellants’ counsel, contending that the 1913 Act was available, objected to the admission of the contract, with the general contractor; and the trial judge, holding that it was not available to appellants, admitted the contract in evidence.

Aside from any question of the application of the 1913 Act, the contract was admissible in' evidence and necessarily so, as a foundation to support the contracts of appellants with the general contractor; without it appellants might be held to stand in the position of volunteers. If the law of 1913 governed the contract, then as a matter of law the clause above recited would be inoperative and impotent as a defense to the claims of appellants; therefore the contract, under any theory advanced by appellants, was admissible in evidence.

The effect of the clause in the McEvoy contract in the then condition of the statute was a matter for the court to decide, as well as its effect, if any, upon the rights of the parties, including appellants. If the rights of the parties are to be determined under the law as it stood at the time of the entering into the contract and the subcontracts found in the record, then the action of the trial judge was right; but, on the contrary, if the rights of the parties are to be adjudged in purview of section 21 of the Act of 1913 (J. & A. H 7159), then he was wrong and the appellants would have the right to foreclose their dual mechanics’ liens.

It is well to bear in mind that all mechanics’ lien laws are in derogation of the common law' and that therefore wherever they conflict with the common law, they are to be strictly construed. No presumption can be indulged as being included which does not specifically appear. Joseph N. Eisendrath Co. v. Gebhardt, 222 Ill. 113.

Section 21 of the Act of 1913 does not affect the remedy for the enforcement of the lien. The procedure is the same in every essential particular under the 1913 Act as before. However, the legislature saw fit to annul the decisions of the Supreme Court in construing a clause in a building contract similar to the one in dispute before us and to provide that after July 1, 1913, such a clause in a contract would not be effective unless the subcontractor had notice thereof, actual or constructive, in the ways pointed out by the act. It was not an attempt by the legislature to impair or destroy the'force of contracts already in existence before the act went into effect, for if it had, such act would be abortive as infringing the constitutional right of contract. What the act really did was to change the rule of- evidence on that subject. This rule is well stated in Corpus Juris, 1082, par. 771, thus:

“But where a contract is valid when entered into, a subsequent statute relating to the rules of evidence is void if it requires such proof of the contract' as makes it impossible of legal proof, or so burdens the party in making proof as to render the contract practically impossible of proof and therefore worthless in a legal tribunal. ”

If the statute had the effect claimed by appellants it would be void on constitutional grounds; for as said in Fisher v. Green, 142 Ill. 80:

“Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the Constitution.” Green v. Biddle, 8 Wheat. (U. S.) 1; Richardson v. United States Mortgage & Trust Co., 194 Ill. 259; Bronson v. Kinzie, 42 U. S. 311.

The case of Howard v. American Boiler Co., 68 Ill. App. 566, is very similar on fact and principle to the one at bar, involving as it did the right to invoke an act in force subsequent to the making of the contract in dispute. The court said:

“The law under consideration went into force June 26, 1895. The provisions of this law—requiring that within ten days after a contract is made, the owner shall require, and the contractor shall give, a verified statement of the names and addresses of all persons having subcontracts, etc.,—are not- retroactive so as to cover contracts made in the previous April or May. It was impossible, after June 26, 1895, to have, within ten days of the making of the contract, April or May, 1895, given a verified statement of the names and addresses of persons having subcontracts. The law never requires impossibilities.”

So in this case it would be impossible to apply section 21 of the 1913 Act and give retroactive effect to it, because the time for doing the things required by section 21 passed between the date of the contracts and the going into effect of the act.

What we have said regarding the constitutionality of the provision of the 1913 Act, if given retroactive effect, is made simply in arguendo, as this court has no jurisdiction to pass upon the constitutionality of legislative acts.

We therefore hold that the rights of the parties in this litigation are to be adjudged as the law existed at the time the several contracts in the record were executed, and that section 21 of the Act of 1913 was not available to either party. Under the law as it existed at the time appellants entered into their contracts with McEvoy & Company, the provision in the contract of the Sisters of Charity with McEvoy & Company, making the contract in effect a nonlien contract, was binding on the parties and decisive of the rights of appellants, precluding them from maintaining any mechanic’s lien for any work done or materials furnished by them under their respective contracts with McEvoy & Company.

The decree of the Superior Court is affirmed.

Affirmed.


text:
    In the Matter of the Estate of Otto C. Meinshausen, Deceased. Appeal of Alexander W. Hannah, Appellant, v. Henry Meinshausen, Administrator, Appellee.
    Gen. No. 25,173.
    1. Courts, § 83

      —what appealable orders of Probate Court are cognizable in Circuit Court. All appealable orders of the Probate Court which are not entered in a proceeding either in law or in equity are cognizable in the Circuit Court.
    2. Courts, § 83*—when appeal to Circuit Court of order of Probate Court is properly dismissed for lack of jurisdiction. An order entered in the Probate Court in a proceeding to sell real estate to pay an intestate’s debts directing one who had been the highest bidder at such sale to pay to the administrator the balance due on his bid is an order entered in a proceeding which is, in its essence, a chancery case, and an appeal therefrom to the Circuit Court is properly dismissed for lack of jurisdiction.
    3. Appeal and error, § 38*—conflicting statutes. Wherever section 124 of the Administration Act (J. & A. If 173) and sections 122 and 123 of the Courts’ Act (J. & A. IfTT 3248, 3249) conflict with section 8 of the Appellate Court Act (J. & A. If 2968) and section 91 of the Practice Act (J. & A. f .8628), the latter sections, being the later enactments, must prevail.
    Appeal from the Circuit Court of Cook county; the Hon. G. T. Barrett, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Campbell & Fischer and Matthias Concannon, for appellant.
    Lighthall, Dankowski & Carlson, for appellee; C. Oscar Carlson, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court dismissing an appeal of appellant from an order of the Probate Court of Cook county on the assumed lack of jurisdiction to entertain it.

The Probate Court order appealed from was entered in a proceeding to sell real estate to pay debts of the intestate, Otto C. Meinshausen, at a sale of which real estate under the decree of the Probate Court appellant was the highest bidder and therefore the purchaser. His bid was $10,000, upon which he paid on account $1,000. Appellant failing to pay the balance of his bid and take a deed for the real estate so bought by him, the Probate Court after a hearing, at which appellant appeared and participated, entered an order directing appellant to pay to the administrator the balance due on his bid.

This order is the one appealed from and is the only order found in the record. The proceedings had upon the hearing, whatever they may have been, nowhere appear.

The only question arising on this record for our consideration and decision is: Did the Circuit Court have jurisdiction of the appeal? The solution of this question rests in the interpretation to be given certain statutes governing appeals in like cases, and this depends largely on whether the order found in the record can be said to have been entered by the Probate Court in a proceeding analogous to one in law or in chancery.

It may be coilceded that all appealable orders of the Probate Court which are not entered in a proceeding ■either in law or in chancery are cognizable in the Circuit Court. The gravamen of contention on the part of ■appellant is that the order appealed from was entered in an independent proceeding to compel the payment by appellant of the balance of, his bid, $9,000, for the real estate sold to him under a proceeding to sell real estate to pay the debts of the decedent, Otto Meinshausen. The contention of the administrator is that the appeal order was entered in the proceeding for the sale of real estate to pay debts and is by analogy ancillary to the enforcement of the decree of sale approving of the bid of appellant and ordering the real estate to be conveyed to him upon payment of the balancé of his bid to the administrator.

Section 101, ch. 3, being the Administration Act (J. & A. ft 150), which treats of the manner of procedure in applications for the sale of real estate to pay debts, directs that “The practice in such eases shall be the same as in cases in chancery,” and in Akin v. Akin, 268 Ill. 324, it was held that a proceeding to sell real estate to pay debts was essentially a suit in chancery and governed by the rules of chancery practice.

In Lynn v. Lynn, 160 Ill. 307, after reciting the provisions of section 101, supra, the court said:

“Under these provisions, in view of the nature and character of the proceeding and the broad chancery powers conferred on the court, an application to sell lands to pay debts may properly be regarded as a chaneery proceeding, within the meaning of section 8 of the Appellate Court Act; ’ ’

We hold that the order appealed from was an order entered in the matter of the application of the administrator to sell real estate to pay debts, which is, in its essence, a chancery case within the meaning of said section as construed in cases supra and, with section 8 of the Appellate Court Act (J. & A. ff 2968) and section 91 of the Practice Act (J. & A. if 8628), governs this case.

Section 8, supra, provides inter alia:

“The said Appellate Courts created by this Act shall exercise appellate jurisdiction only, and have jurisdiction of all matters of appeal, or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the Superior Court of Cook county, or county courts, or from the city courts in any suit or proceeding at law, or in chancery other than criminal cases, not misdemeanors, and cases involving a franchise or freehold or the validity of a statute. Appeals and writs of error shall lie from the final orders. * * * ”

And the following portions of section 91, supra, read:

“Appeals shall lie to and writs of error from the Appellate or Supreme Courts, as may be allowed by law, to review the final judgments, orders or decrees of any of the circuit courts, the Superior Court of Cook county, the county courts or the city courts and other courts from which appeals and to'which writs of error may be allowed by law, in any suit or proceeding at law or in chancery.”

If it can be said that these two sections in any way conflict with section 124, ch. 3 (J. & A. j[ 173), title “Administration,” or sections 122 and 123, ch. 37 (J. & A. 3248, 3249), title “Courts,” which direct that appeals shall be taken from County Courts to the Circuit Court, where the trial shall be de novo, they must yield to sections 8 and 91, supra, as these two sections are in point of time the latest enactments of the legislature; so that wherever sections 124, ch. 3, and 122 and 123, ch. 37, supra, may appear to be in conflict with sections 8 and 91, supra, these two later sections must be held to supersede, and to that extent displace, antecedent enactments (and such are sections 124, ch. 3, and 122 and 123, ch. 37, supra).

The validity of the order of the Probate Court in the record is not before us, consequently nothing in this opinion affects in any manner the merits of the controversy projected by that order.

The order of the Circuit Court dismissing the appeal for want of jurisdiction was without error and is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois, Appellee, v. Cornelius S. O’Meara, Appellant.
    Gen. No. 25,186.
    1. Contempt, § 53

      —when contention that proceeding for criminal contempt must he prosecuted in name of People of the State is without force. Where, on a proceeding to punish for a criminal contempt, all of the proceedings, including the order of commitment, are entitled in the name of the People, a contention that such a proceeding must be prosecuted in the name of the People of the State is without force.
    2. Contempt, § 70*—when order of commitment for criminal con-1 tempt sufficiently sets forth in what contempt consisted. Where an order committing one for criminal contempt discloses that he, personally, came into court upon the hearing of the account of a guardian who had been theretofore removed by the Probate Court, and was asked by the trial judge to take the witness stand and refused to do so, that the court requested that he be sworn as a witness on the hearing and directed that the clerk swear him and that he thereupon refused to be sworn, stating in open court that he did and would refuse to be sworn and did and would refuse to testify, and that the court found that the proceedings so recited were had in open court, when the court was in session and in the presence of the court, its officers and the attending public, such order sufficiently sets forth in what the contempt consisted.
    3. Criminal law, § 393*—how criminal prosecutions can he reviewed. All criminal prosecutions sought to be reviewed, whether by the Supreme Court or by the Appellate Court, must be brought up by writ of error.
    ‘ 4. Contempt, § 74*—order committing for criminal contempt not 'reviewahle hy appeal. Appeal will not lie from an order committing one to imprisonment for criminal contempt.
    Appeal-from the Probate Court of Cook county; the Hon. Henby Hobneb, Judge, presiding. Heard in this court at the March term, 1919.
    Appeal dismissed.
    Opinion filed December 8, 1919.
    Michael F. Ryan, for appellant.
    Maclay Hoyne, Edward E. Wilson and Robert W. Daniels, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from an order committing appellant to imprisonment for 30 days for contempt of court committed in the presence of the court.

This is a criminal contempt and so conceded to be by all the parties to the record.

Appellant urges that this being a criminal contempt, the proceedings must be prosecuted in the name of the People of the Staté. All the proceedings, including the order of commitment, are entitled in the name of the People, so this contention has no force. Such is the orderly course of procedure under article VI, sec. 33 of the present constitution as held by many decisions. Stuart v. People, 4 Ill. (3 Scam.) 395; Oster v. People, 192 Ill. 473; Rawson v. Rawson, 35 Ill. App. 505, and other cases.

It is likewise contended that the order of commitment does not set forth fully in what the contempt consisted. An examination of the order establishes the fallacy of this contention. The order discloses that appellant came personally into court upon the hearing of the account of Ellen McCormick, guardian of two minors, Albert J. and Robert P. McCormick, who had been theretofore by order of the Probate Court removed as such guardian, and that upon such hearing the trial judge asked appellant to take the witness stand, which he refused to do. The court thereupon requested appellant to be sworn as a witness and requested the clerk of the court, who was present, to swear appellant as a witness on the hearing before the court, whereupon appellant refused to be sworn and refused to permit the clerk of the court to propound the oath to him as á witness, stating in open court that he did refuse and would refuse to be sworn as a witness in the cause and that he would and did refuse to testify on said hearing. The court found that the proceedings so recited were had in open court when the court was in session and in the presence of the court, its officers and the attending public.

This states the proceedings and the findings of the court sufficiently to support the order of commitment. However, we have no jurisdiction over this appeal because the review of all judgments in criminal cases must be prosecuted by writ of error. French v. People, 77 Ill. 531; People v. Johnson, 285 Ill. 194.

The rule is uniform in this State that all criminal prosecutions sought to be reviewed, whether by the Supreme or Appellate Court, must be by writ of error. Wisner v. Leman, 170 Ill. App. 84.

For the lack of jurisdiction to review the errors assigned on this appeal in any other way than by writ of error, this appeal is dismissed.

Appeal dismissed.


text:
    American Shipping Company, Appellant, v. Alexander Henderson, trading as A. Henderson & Company, Appellee.
    Gen. No. 25,198.
    1. Dismissal, nonsuit and discontinuance, § 15

      —when motion for nonsuit in Municipal Court is not too late. Under section 30 of the Municipal Court Act "(J. & A. 1f 3342), a motion for a nonsuit is not too late when made after a motion at the close of plaintiff’s case for a finding in defendant’s favor but before any decision upon it, even though made after a remark of the court indicating the state of his mind and his intention regarding his decision upon defendant’s motion.
    2. Tbial, § 170*—nature of motion hy defendant for finding in his favor. A motion by a defendant, made at the close of plaintiff’s case, for a finding in his favor is, in effect, a demurrer to plaintiff’s evidence, and, in the orderly sequence of procedure, there can be no ultimate finding until such motion is decided.

      Appeal from the Municipal Court of Chicago; the Hon. Jambs Donahoe, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded with directions.
    Opinion filed December 8, 1919.
    Pines & Newmann, for appellant; Alvin E. Stein, of counsel.
    West & Eckhart, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the i court.

This is an appeal by plaintiff from a nil capiat judgment rendered on the finding of the court to whom the cause was submitted for trial.

Plaintiff contends that its motion for a nonsuit should have been allowed and not denied, as it was. The record discloses that at the conclusion of plaintiff’s case defendant moved for a finding in his favor, whereupon the trial judge made remarks indicating the state of his mind and his intentions regarding his decision on the motion, when counsel for plaintiff argued, with citation of supporting authorities, against the judge’s attitude. Thereupon the judge refrained from further action and continued the hearing to a week from the following Saturday at twelve o’clock, saying: “Well, gentlemen, if I am to look over these authorities here, I will set this for a week from Saturday, twelve o’clock, and I will just hand out my decision as I thought of doing today, until you made the argument.”

It is well to bear in mind that at the time the trial judge made the foregoing announcement a motion to find for defeildant was pending and undetermined. On the call of the case on Saturday and before the court had indulged in any observations in relation thereto, plaintiff’s counsel said: “If the Court please, we ask for a nonsuit, ’ ’ to which the judge replied: ‘ All right, suit dismissed, plaintiff’s costs.” There then ensued a triangular argument between court and counsel for each of the parties, raised by defendant’s contention that the motion for a nonsuit came too late. The judge finally reversed his former holding and entered the judgment of nil capiat before us.

The judgment in this record is a Municipal Court judgment, and the Municipal Court Act therefore controls. By section 30 of that Act (J. & A. If 3342) a plaintiff may suffer a nonsuit on a trial before the court at any time before the court “states its findings.” By section 70 of the Practice Act (J. & A. 8607) such a nonsuit may be suffered at any time “before the case is submitted for final decision.”

It will be observed that there is a sharp distinction between the provisions of these two sections. When the court took the case he had made no decision of the motion of defendant for a finding in his favor. What the court had theretofore said was not a finding, but only an indication of the state of his mind, and the further action of the court was suspended when the cause was continued to a future time for further action.

In no sense can it be said that the court had made a finding. In the orderly course of procedure there could be no finding made by the court until the motion for a finding favorable to defendant had first been decided by the court. The motion was in effect a de- ■ murrer to the evidence of plaintiff, and, in the orderly sequence of procedure, not- until this motion was decided could there be an ultimate finding. After the decision of the pending motion, and before the announcement of the judge’s finding, plaintiff might take a nonsuit.

In Springer v. Campbell Co., 174 Ill. App. 278, this court held that a motion for a nonsuit came too late because it came after the court had stated its finding. That is not the condition of the record before us.

A substantial right, such as the taking of a nonsuit, should not be defeated by a quibble as to who spoke first; nor should the right be lost by a subterfuge, as in the Springer case, supra, when the trial judge anticipating, as he stated, a motion for a nonsuit, without any announcement of his intended action, secretly wrote a finding in the case with the design of depriving the plaintiff of his statutory right to a nonsuit.

The record in this case is more akin to Kilroy v. Justrite Mfg. Co., 209 Ill. App. 499, in which we said:

“The decision of the motion before the court was not the finding contemplated by the statute. Counsel were not required to anticipate that the court would sustain the motion. This motion was opposed, and if not granted defendant would have been put to its defense. What the statute means by the court’s finding is the court’s ultimate finding after the cause is submitted by all the parties. So it was held in Daube v. Kuppenheimer, 272 Ill. 350, where a motion for an instructed verdict was made, and before the verdict was signed plaintiff moved for a nonsuit, that the motion must be granted, as it was, and the judgment of non-suit was affirmed in both this and the Supreme Court. In Berry v. Savage, 2 Scam. 261, it was held under a similar statute that when the jury had retired to consider of their' verdict and afterwards returned into court for further instruction and plaintiff moved for a nonsuit before the jury had again retired from the bar of the court, it was reversible error to deny the motion, and the Supreme Court reversed the judgment and entered a judgment of nonsuit in the reviewing court. ”

When the case was adjourned for the judge to examine the authorities cited by plaintiff’s counsel, no finding had been made; nor had the motion for a finding in defendant’s favor been decided. In the then corn dition of the 'record it was open to the trial judge to enter such order as he might have concluded from the examination of plaintiff’s authorities was proper to be made. Now, before an opportunity to decide had been given the judge, plaintiff’s counsel moved for a nonsuit, and we hold that in this state of the record the motion for a nonsuit should have been allowed,

For not permitting plaintiff to take a nonsuit, the judgment of the Municipal Court is reversed and the cause is remanded to the Municipal Court with directions to enter a judgment of nonsuit.

Reversed and remanded with directions.


text:
    Lawrence A. Smith, Appellee, v. Mary Pearce Niemann and Walter F. Niemann, Appellants.
    Gen. No. 25,232.
    1. Mortgages, § 175

      —what defenses available against assignee of debt secured by deed of trust. On a suit in equity by the assignee of a debt secured by deed of trust to foreclose the trust deed, all the defenses which could have been interposed against the assignor are equally admissible against the assignee, even though the good faith of the latter’s title is not questioned.
    2. Mortgages', § 1*—mortgage as incident to -principal debt. The mortgage by which a note is secured is, in a court of equity, but an incident to the principal debt.
    3. Mortgages, § 155*—mortgage as not assignable. A mortgage is not assignable by the course of the common law nor under the Illinois statutes.
    4. Mortgages, § 409*-—when misrepresentations and frauds are defense to foreclosure by assignee of debt. On a proceeding by the assignee of a debt secured by a trust deed to foreclose the trust deed, where it appears that such trust deed was given in connection with an exchange of property between defendant and complainant’s assignor, misrepresentations and frauds by such assignor or his agent, of which he knew, set up in the bill, as to the rentals for which his property was leased, deposits by the tenants to secure the performance of their leases, the net income which the property would produce, the value of the building and the manner of its construction, are available as defenses to the bill to foreclose.
    5. E’ratjd, § 15*—how false representation may be made. A false representation need not necessarily be an oral, written or printed statement, but may arise from any conduct capable of being turned into a statement of fact.

      6. Fraud, § 36

      —negligence as not defense to liability for fraud. Negligence cannot be imputed to a defraiided person, so that he who commits the fraud may escape liability.
    7. Mortgages, § 393*—when foreclosure suit is prematurely brought. Where one seeking to foreclose a trust deed for nonpayment of an instalment of interest, under an acceleration clause giving him that right, concedes that there is due defendant for a breach of the contract, in the performance of which the deed was given, a sum exceeding the amount of such instalment of interest, the suit is prematurely brought.
    8. Appeal and error, § 365*—when statute cannot be urged in Appellate Court. An appellant who failed to urge a statute in the trial court should not be permitted to do so in the Appellate Court.
    9. Statutes, § 274*—how Illinois statutes passed since 1874 must be proven. There having been no revision of the Illinois statutes since 1874, all statutes passed since that time must be proven by the Session Laws certified by the Secretary of State, or by copies thereof certified by the same official.
    10. Statutes, § 274*—what evidence is not conclusive that act is part of laws of State. ‘While the fact that an act is included in the Session Laws is prima facie evidence that it is a part of the laws of the State, .such evidence is not conclusive.
    11. Mortgages, § 175*—nonexistence of statute relating to defenses. Laws 1901, p. 248 (J. & A. If 7589), providing as to the defenses to mortgages and deeds of trust, assumed to have been concluded by the Supreme Court not to have been passed by a constitutional majority and to be nonexistent.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded with directions.
    Opinion filed December 8, 1919.
    Rehearing denied December 22, 1919.
    Thompson, Tyrrell & Chambers, for appellants.
    SoNNENSCHEIN, BeRKSON, LaUTMANN & LEVINSON, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a decree in a bill filed to foreclose a trust deed given by defendants to secure notes aggregating $7,500, with interest. The trust deed provided that on failure to pay interest when due, such default of interest payment continuing for 30 days, the whole amount of the indebtedness might at the option of the legal holder thereof be declared due and payable and payment enforced by foreclosure or otherwise. At the time complainant, as legal holder of the indebtedness, exercised his option to declare the whole of the indebtedness due and payable and for that purpose filed the bill in the record, there was due and unpaid interest amounting to the sum of $115.11.

The inception of the transaction which eventuated in the giving of the trust deed sought to be foreclosed was a contract of exchange of some North Dakota lands owned by the defendant, Mary Pearce Niemann, for an apartment building in Chicago owned by one Fred Becklenberg; the contract was between these two persons. The contract was completed by the conveyance to Becklenberg of the North Dakota land and by the conveyance to Mary Pearce Niemann of the apartment house property described in the trust deed in suit.

The answer of defendants denies the indebtedness and avers that the real owner of the notes constituting such indebtedness was Fred Becklenberg, and denies that complainant was authorized to declare the whole amount due at or previous to the filing of the bill. Said answer also avers inter alia that the execution of the principal and interest notes and coupons and the trust deed securing them was obtained by fraud in that Becklenberg represented in the exchange contract «that the total rent of the mortgaged premises aggregated $11,820 a year; that Becklenberg exhibited to defendant, Mary Pearce Niemann, leases of 24 apartments which showed an aggregate annual rental of $11,820, while in truth and in fact such leases had been falsely drawn; that Becklenberg in devious ways arranged with the tenants named in the leases that they should not pay the rentals provided for in the leases, but a lesser amount, and that to accomplish such results receipts were in several instances given to the tenants at the time of the execution of the leases reciting the receipt by Becklenberg of a large portion of the rent reserved in the leases; that some of the leases provided that the lessees had deposited with Becklenberg certain sums of money as security for the faithful performance of the leases, when in fact the money so receipted as having been received from tenants was not in fact received, and the money mentioned as having been deposited as security for the performance of the leases was not so deposited, but represented the amount of rebates which the tenants were to receive from the amount reserved in the leases; that previous to the execution of the contract of exchange and the notes and trust deed in suit, Becklenberg by his representatives advised defendant, Mary Pearce Niemann, that the building and the various apartments therein were in fact rented for the amounts specified in the leases and that the tenants were paying such amounts; that these representations were false and untrue and were known by Becklenberg and his representatives to be false and untrue, and that they were made for the purpose of inducing defendants to convey the North Dakota land to Becklenberg and to execute the notes and trust deed set out in the bill; that false representations were also made regarding the manner of the construction of the building and its value and the net income which it would produce; thaf such representations were false; that the contract of exchange provided that Becklenberg should, after the delivery of the deed, make certain repairs and alterations in the premises, including the covering of all steam pipes with asbestos, and that Becklenberg would “refinish all the inside wood trim of said building, including the sideboards, and would give the same the necessary refinishing’’; that these things he did not do and that it cost defendants $5,000 to complete said work; that the difference between the value of the premises and property on the date of its conveyance to Mary Pearce Niemann, as Well as on the date of the contract, and its value if it. had been of the rental value and of the construction, material and workmanship as represented, was greatly in excess of the amount of the notes secured by the trust deed and of any sums that accrued or might be due complainant thereunder.

The cause was referred to a master, who took the proofs at some length, including all the defenses set up in the answer, but ignored all but one of such defenses and found that the amount due complainant on the indebtedness secured by the trust deed was $7,891.43, and allowed solicitors’ fees of $1,500, of which complainant voluntarily remitted $500. The master’s costs were taxed at $836.10 in the decree entered confirming the master’s report.

Defendants preserved their rights by the usual objections before the master and exceptions before the chancellor.

The only finding in favor of the defendants by the master was: ‘ ‘That Becklenberg failed to comply with the terms and provisions of the contract in so far as the specific provision for the refinishing of the woodwork and sideboards, and failed to furnish asbestos covering for the pipes in the basement. The cost of completing the contract in that respect would be $500, which amount is recommended to be allowed Mrs. Niemann in reduction of the indebtedness due the complainant as found by the report. ’ ’

We shall confine this opinion to the discussion and determination of four points:

1. Is complainant, as assignee and innocent -holder of the notes included in the indebtedness secured by the trust deed in suit, immune from the defenses set out in the answer, were such defenses admissible against his assignor, Becklenberg?

2. Are the misrepresentations and frauds set out in the answer available to defendants as a defense?

3. Was the bill prematurely brought for the reason that defendants were entitled to credit for the $500 found due by the master for certain breaches .of the contract between Becklenberg and Mrs. Niemann, while at the time complainant elected to declare the notes dne there was but $115.11 of interest unpaid?

4. Is the act found in the Session Laws of 1901, p. 248 (J. & A. 7589), entitled “An Act making mortgages, trust deeds and other conveyances in the nature of mortgages, negotiable instruments, subject only to the same defenses as other negotiable instruments,” a subsisting statute available to complainant in warding off the defenses of fraud and misrepresentation set up in the answer?

1. As early as Olds v. Cummings, 31 Ill. 188, and in a long line of decisions uniformly adhering to the doctrine there announced, it-is laid down as the law that a promissory note though secured by a mortgage is still commercial paper assignable at law; that when the remedy is sought upon it all the rights incident to commercial paper will be enforced in the courts of law; but when resort is had to a court of equity to foreclose the mortgage, that court will let in any defense which would have been good against the mortgage in the hands of the mortgagee himself; and this regardless of the fact that the assignee may have purchased the notes in good faith and before maturity.

Complainant is of his own choice in a court of equity seeking to foreclose the trust deed, which is in law a mortgage on realty, and he is therefore bound by equitable rules applicable to the condition in which, according to the averments in his own bill, we find him. Therefore, all the defenses which could have been interposed against Becklenberg are equally admissible against complainant, his assignee, and even though the good faith of his title may not be questioned, this in no way affects the right to interpose defenses' which would be pertinent as against Becklenberg.

In equity the mortgage securing notes is but an incident to the principal debt in a court of equity, and that is upon the theory that by the common law a mortgage is a chose in action and not assignable. Nor is a mortgage assignable by the course of the common la,w or under our statutes, although the mortgage follows the notes which it secures as an incident to the principal debt.

In Bartholf v. Bensley, 234 Ill. 336, the court said:

“This court held in Olds v. Cummings, 31 Ill. 188, that mortgages and trust deeds not being assignable at law, the assignee takes them subject to the same defenses that existed between the original parties. In that case it was said (p. 191): ‘He who buys that which is not assignable at law, relying upon a court of chancery to protect and enforce his rights, takes it subject to all infirmities to which it is. liable in the hands of the assignor; and the reason is, that equity will not lend itself to deprive a party of a right which the law has secured him, if such right is intrinsically just in itself.’ ” Buehler v. McCormick, 169 Ill. 269.

The court further said of the Olds case:

“The law as announced in Olds v. Cummings, supra, has been adhered to and applied in every subsequent case which has come before this court where the same questions were involved, and there is nothing shown by the evidence in this .case that could take it out of the operation of or make inapplicable the law announced in Olds v. Cummings, and subsequent cases.”

We therefore hold that all the defenses which could be interposed against Becklenberg, complainant’s assignor, are equally potent as defenses against complainant. Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290.

2. The misrepresentations and frauds, set forth in the answer, perpetrated upon defendants by Becklenberg, or through his agents or those representing him, of which he was cognizant and had notice, are available to defendants as a defense to complainant’s bill.

A false representation need not necessarily be an oral, printed or written statement, but may arise from any conduct capable of being turned into a statement of fact; and negligence cannot be imputed to a defrauded party, so that he who commits the fraud may escape liability. As Becklenberg ivas cognizant of what was being done regarding the transactions with defendants and the frauds perpetrated inured to his financial advantage, the law will fasten such frauds upon him as his own. Leonard v. Springer, 197 Ill. 532.

3. When complainant conceded that $500 found by. the master as due for the breach of the contract with'Becklenberg was correct and lawfully due defendants, he in so conceding presumptively admitted that that sum should be allowed as a credit" upon the indebtedness of defendants secured by the trust deed. It therefore follows, as complainant elected to declare the whole amount due when there was only $115.11 of interest due and unpaid, that instead of defendants being indebted to complainant, complainant was debtor to defendants, and consequently it could not be truthfully said that defendants were in default; and as said in Bartholf v. Bensley, supra: “If appellee was not in default in the payment of interest then appellant’s bill was prematurely filed, and the Appellate Court properly reversed the decree of the .Circuit Court and directed the dismissal of the bill.”

4. In this court complainant for the first time invokes an act .found in Session Laws of 1901, p. 248 (J. & A. 7589), as legislation repealing the doctrine above stated in Olds v. Cummings, supra. This so-called act was not brought before nor considered by the master or the chancellor, nor was any. reference made thereto until complainant filed his brief in this court.

While we think that complainant is barred from urging the act supra in this court for the first time, still every decision of every court is made with the statutes of the State in mind, of which the courts take judicial notice. If the facts of any case fall within the statutory enactments, the court will interpret the statute and apply it to the case as the law, Foreign statutes to be availed of must be pleaded, but domestic statutes are, inferentially at least, within the mind of the court. There has been no revision of our statutes since the revision of 1874; consequently all statutes passed since that time must be proven by the Session Laws certified by the Secretary of State, or by copies thereof certified by the same official.

According to the Session Laws, supra, the act is prima facie a part of the statute law of the State, although such prima facie evidence thereof is not conclusive. As laid down in State v. McBride, 4 Mo. 303, the Supreme Court may look into the proceedings of the legislature to see that all the constitutional requirements have been complied with and that the act has been adopted by proper majorities.

In Spangler v. Jacoby, 14 Ill. 297, it was held that the printed statute bo.ok is not conclusive, but may be corrected by the original act on file in the office of the Secretary of State, and that such may be shown from the journals of either branch of the legislature; that a particular act was not passed in the mode prescribed by the constitution, and that if contest arises as to the passage of an act, the journals may he appealed to, to settle it; and while the signatures of the speakers and the governor to an act create the presumption that it became a law in pursuance of the constitution, this presumption may be overthrown by a reference to the journals.

In Prescott v. Board of Trustees of I. & M. Canal, 19 Ill. 324, it was held that the Supreme Court will look behind the printed statute to the journals to ascertain whether it has a legal existence.

In Illinois Cent. R. Co. v. Wren, 43 Ill. 77, the doctrine of Spangler v. Jacoby, supra, was affirmed, but it was held that in attacking the validity of an act the evidence of the fact must be brought into the record in the way usual in the trial court. To like effect is Grob v. Cushman, 45 Ill. 119.

Since 1901, when the act supra is said to have been wrought into the statutes of the State, the Supreme Court has uniformly (whenever the question was involved regarding a holder for value of notes secured by mortgage or trust deed, having taken the same subject to all equitable defenses invocable in a court of equity) followed Olds v. Cummings, supra, and a long line of cases holding that such notes were in equity subject to all the defenses which could be equitably interposed against the original owner.

As late as February, 1909, in Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290, and in December, 1910, in Peacock v. Phillips, 247 Ill. 467, the Supreme Court cited and followed Olds v. Cummings, supra, and kindred cases.

Counsel for defendants in their reply brief, which was not challenged by counsel for complainant when the case was orally argued before us, state that an examination of the briefs and abstracts filed in the Supreme Court in Bartholf v. Bensley, supra, shows that the journals of the House of Representatives were introduced in evidence before the master, and that such journals showed that the act in question was defeated by a vote of 90 to 22, and that the invalidity of the statute was also argued at length in the brief of appellee.

While the subject of the existence or nonexistence of this 1901 act is ■ not alluded to in the opinion in Bartholf v. Bensley, supra, we will assume that the court reached the conclusion from the evidence of the journals of the House of Representatives in that record that the act was not passed by a constitutional majority and was therefore nonexistent, and placed its decision, as it did, upon the doctrine of the Olds case, supra, uniformly followed wherever the question there decided was subsequently before the court.

For the foregoing reasons the decree of the Circuit Court is reversed and the cause is remanded with directions to that court to enter an order dismissing the bill for want of equity.

Reversed and remanded with directions.