text:
    Sandow Motor Truck Company, Appellant, v. W. M. Brown, Appellee.
    Gen. No. 24,579.
    1. Set-oit and becoupiient, § 10

      —when claim for unliquidated damages may be interposed by way of set-off. A claim for unliquidated damages may be interposed by way of set-off where it arises out of the same subject-matter as the plaintiff’s claim.
    2. Sales, § 404*—what is measure of damages for breach of warranty. The measure of damages for a breach of warranty in the case of the sale of a warranted article is the difference between the value of the article as warranted and its actual value in its alleged defective condition.
    3. Sales, § 315*—what is effect in suit for purchase price of defending on ground of breach of warranty. Where a purchaser of a warranted article defends a suit for the purchase price on the ground of a breach of warranty, the proof being that the article was defective and worth less than it would have been if as warranted, defendant may urge the breach of warranty in mitigation of plaintiff’s claim but can recover over nothing in the way of damages as against plaintiff.
    4. Sales, § 404*—what is measure of damages for breach of warranty recoverable on plea of set-off, in action for balance due on the purchase. Where a purchaser of a warranted article is sued for the balance due on the purchase price, he may not only urge the breach of warranty in mitigation of plaintiff’s claim, but may recover over against the plaintiff, under a plea of set-off, such difference as may be proven between his damages and the amount remaining due on the purchase price, but in no case can he recover any sum greater than the purchase price.
    Appeal from the Municipal Court of Chicago; the Hon. Howabd W. Hates, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Blum, Wolfsóhn & Blum, for appellant.
    William B. Bullion, for appellee.

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

   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The plaintiff company brought an action in contract to recover the balance claimed to be due on the sale of a truck to the deféndant. The plaintiff also brought an action in replevin to recover possession of the truck. In the contract action the defendant filed an affidavit of merits setting up a breach of warranty and he also filed a claim for set-off, claiming damages in the sum of $500 because of the breach of warranty. By agreement the cases were consolidated and tried before the court and a jury. In the replevin suit the court directed a verdict for the defendant. In the contract suit the jury returned a verdict in favor of the defendant, on his set-off, for $100 and the court entered judgment on the verdict.

The only contention made in support of this appeal is that defendant’s set-off “was in reality a recoupment,” and that consequently there could be no judgment for defendant, but the recoupment, if sustained, could only go to defeat the plaintiff’s claim. The plaintiff contends that the defendant in an action of this kind can only set up a claim by way of set-off where such claim is for a liquidated amount, but that an unliquidated claim may be the subject of recoupment. The plaintiff contends further that in the case at bar the defendant presented a claim which was unliquidated and that it necessarily follows that it was not a claim in set-off but one in recoupment. This contention is unsound. A claim fo.r unliquidated damages may be interposed by way of set-off where it arises out of the same subject-matter as the plaintiff’s claim. As was said by our Supreme Court in Sanger v. Fincher, 27 Ill. 346, citing other cases: ‘ Our statute * * * has not limited the right (to a set-off) to liquidated claims or demands. * * * That the claim or demand should relate to the transaction out of which the controversy has grown, where the damages are unliquidated, seems to be the construction placed upon the act. * ® * Unliquidated damages arising out of the same transaction, may be set off under the statute.” To the same effect is Hartshorn v. Kinsman, 16 Ill. App. 555; Weaver v. Penny, 17 Ill. App. 628; South Chicago City Ry. Co. v. Workman, 64 Ill. App. 383; Holmes v. McKennan, 120 Ill. App. 320. In the latter case many of the authorities on this subject are referred to and reviewed. That the claim of set-off interposed by the defendant arises out of the same subject-matter as the claim of the plaintiff, on which the suit was brought, admits of no doubt.

The plaintiff further contends that, when an action is brought for the purchase price of a chattel and'the vendee claims that there was a breach of warranty of said chattel on the part of the vendor, the vendee may set off or recoup the damages sustained by him because of the breach of such warranty to the extent of reducing or entirely defeating the vendor’s claim, but no judgment may be rendered in such suit against the vendor for any amount in excess of his claim. This is a correct statement of the law. 1 Chitty on Contracts, p. 652; C. W. Dooley & Co. v. Hasenwinkle Grain Co., 120 Ill. App. 43. But it has no application to the facts involved in the case at bar.

The general rule is that the measure of damages for a breach of warranty, in the case of the sale of a warranted article, is the difference between the value of the article as warranted and its actual value in its alleged defective condition. Gifford-Wood Co. v. Western Fuel Co., 209 Ill. App. 357, and cases there cited. Applying this rule to a case where a purchaser of such an article defends a suit for the purchase price, on the ground of a breach of warranty, the proof being that the article was defective and worth less than it would have been if in its warranted condition, we have the rule contended for by the plaintiff, namely, that the defendant may urge the breach of warranty in mitigation of plaintiff’s claim but can recover over nothing in the way of damages as against the plaintiff. But, where the defendant has paid a part of the purchase price and the plaintiff sues him for the balance due (which is the situation in the case at bar), the application of the general rule brings us to the conclusion that the defendant may not only urge the breach of warranty in mitigation of the plaintiff’s claim, but may recover over against the plaintiff, under a plea of set-off, such difference as may be proven between his damages and the amount remaining due on the purchase price, but, in no case can he recover any sum greater than the purchase price. In Babcock v. Trice, 18 Ill. 420, the court said that the defendant “might, in his plea of set-off, have set up the special contract and breach of the warranty; and, if he had done so, and it appeared that his damages exceeded the amount unpaid on the purchase of the com, he could have recovered the difference under his plea.” The judgment recovered by the defendant in the case at bar was within the rule as stated.

There being no error in the record the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Claude D. Stephens, Appellant, v. Anton C. Stephan and Stephens Engineering Company, Appellees.
    Gen. No. 25,577.
    1. Appeal and error, § 270

      —statutory character of right of appeal from interlocutory order. The right to appeal from an interlocutory order is wholly statutory.
    2. Injunction, § 367*—order dissolving preliminary injunction as not appealable. An order dissolving a preliminary injunction is interlocutory and not final, and no appeal will lie from such order.
    3. Injunction, § 367*—statute as not authorising appeal from order dissolving preliminary injunction. Rev. St. ch. 69, sec. 21 (J. & A. jf 6181), providing as to the effect of an appeal from a decree dissolving an injunction, applies only where a final decree is entered which dissolves an injunction, and does not authorize an appeal from an' order dissolving a preliminary injunction.
    4. Injunction, § 391a*—what statute covers practice regarding allowance of solicitor’s fees on dismissal of appeal from order dissolving preliminary injunction. The practice regarding the allowance of solicitor’s fees on the dismissal of an appeal from an order dissolving a preliminary injunction is covered' by Rev. St. ch. 69, sec. 12 (J. & A. jf 6172), not by section 123 of the Practice Act (J. & A. If 8661).
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court.
    Appeal dismissed.
    Opinion filed December 3, 1919.
    William Armstrong, for appellant.
    Francis H. McKeever, for appellees; Charles Goodman, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Complainant filed a. bill against defendants praying for an accounting and that defendants be ordered to return certain personal property to him. Afterwards a supplemental bill was filed in which the prayer was the same and included a further prayer that the complainant be decreed to be the owner of - certain real estate. The supplemental bill also prayed that a preliminary injunction be issued restraining the defendants from prosecuting a forcible detainer suit. On the recommendation of the master, the court granted the preliminary injunction. The supplemental bill was answered and on motion of defendants an order was entered dissolving the preliminary injunction. From this order an appeal was prayed and allowed.

The right to appeal from such interlocutory order is entirely statutory. An order allowing a motion to dissolve a preliminary injunction is interlocutory and not final, and no appeal will lie from such order. Lehmann v. Shimeall, 195 Ill. App. 511; section 123, ch. 110, Rev. St. (J. & A. ¶ 8661); Cahill v. Welch, 208 Ill. 57. Counsel for defendants in the argument at the bar conceded that the appeal was not authorized by section 123 of the Practice Act, but contended that it was authorized by section 21, ch. 69, Rev. St. (J. & A. ¶ 6181). This is a misapprehension of the meaning of section 21. That section provides that no appeal from a decree dissolving an injunction shall have the effect to keep the injunction in force unless the appeal is prayed at the time the decree is entered and the court shall so order, or unless it is ordered by the Appellate or Supreme Court, after the appeal is perfected, that the injunction continue in force. That section is intended to cover cases where a final decree is entered which dissolves an injunction.

Counsel for the defendants suggests that the appeal be dismissed with an allowance of reasonable solicitor’s fees to be taxed as costs, and contends that this is authorized by section 123 of the Practice Act: That section provides for the allowance of solicitor’s fees only in cases where an appeal is there authorized but for some reason has not been prosecuted according to law, and does not apply to the instant case. The practice controlling whatever rights the defendants may have in this regard is covered by section 12, ch. 69, Rev. St. (J. & A. ¶ 6172).

Since the appeal is not authorized it will be dismissed.

Appeal dismissed.


author: Mr. Justice Taylor

text:
    Ph. Glickman, Appellee, v. Crane Company, Appellant.
    Gen. No. 24,805.
    1. Automobiles and garages, § 3

      —when verdict for plaintiff in action for damage to building by automobile is not manifestly against weight of' evidence. In an action to -recover for injury to a building struck by an automobile truck, where it appears that the truck, after colliding with a touring car, after dark, about the middle of the intersection of two streets, bent or broke an iron signpost, went over the curb, injuring it in doing so, and struck plaintiff’s brick building, causing the damage complained of, and that its speed at the time of the collision was variously estimated at from 8 to 30 miles an hour, it was held that a verdict for plaintiff could not be held to be manifestly against the weight of the evidence.
    2. Damages, § 190*—when competent proof of damage to building struclc by automobile exists. In an action to recover for damage to a building struck by an automobile truck, it cannot be said there was no competent proof of damages where the only witness called on the question testified, that the ordinary and usual value, in the city where the building was located, of putting it in proper shape would be a certain sum, which sum was larger than the amount recovered, and the cross-examination to which he was subjected in no way affected or qualified his opinion.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomeb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Alden, Latham & Young, for appellant; Charles Martin, of counsel.
    William B. Bauer and Louis Bohr, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

A truck of the defendant, driven by one of its employees, having run into and damaged a building belonging to the plaintiff, the latter brought suit and obtained judgment in the sum of $205.20. On the evening of September 6,1917, between 7 and 8 o’clock, about dusk, an empty Ford truck, going south on Jefferson street, driven by one Gfroenendal, chauffeur for the defendant, collided, at about the middle of the intersection of Jefferson and DeKoven streets, with a touring car which had come east on DeKoven street and had turned to go south on Jefferson street. As a result of the collision and the speed at which the cars were going when they met, the Ford truck went on to the southeast, struck and bent or broke an iron signpost, went over the curb, somewhat destroying it, and then struck the brick building at the southeast corner, the property of the plaintiff, doing considerable damage.

The evidence is substantially as follows: Fortuna, a watchman, who stood at the time of the collision, on the northwest corner of the intersection, testified that, when he first saw the Ford truck, about half a block north of the intersection (which, according to defendant’s driver, was 70 to 75 feet), it was going 25 to 30 miles an hour; that afterwards it struck a Mg lamppost, knocked it over, turned it down and broke it; ran into the curb and damaged it and then went over the parkway and an 8-foot cement sidewalk and ran into the building; that the touring car, after the collision, went on south and stopped in the middle of the next block; that he did not hear either car blow a horn; that the driver of the truck jumped off when it was about 6 feet from the plaintiff’s building. The witness Wellik testified that the curb was smashed and the iron street signpost bent. The witness Groenendal, the driver of the Ford truck, testified that “it was kind of dark, ’ ’ that he had his -lights on; that he was going south on Jefferson to the garage; that he stopped for about 10 minutes in the middle of the block between Taylor and DeKoven streets to fix up the coils; that he was then about 70 to 75 feet from DeKoven street; that just before he stopped he had been going from 10 to 15 miles an hour; that he started up and then went about 8 miles an hour; that he blew his horn; that there were “a lot of young children around there”; that the front of his truck was in the center of De Koven street when he first saw the touring car; that he did not have much of a view west on DeKoven street on account of the building at the northwest corner; that when he first saw the touring car it was over near the north side of DeKoven street near the curb, going east; that he was then going 12 miles an hour and the touring car 25 miles an hour; that the touring car was white, had side lights lighted and blew no horn; that the touring car struck the Ford truck, when it was in the center of DeKoven street; that it struck it between the fender and the step, about 4 feet from the front of the machine; that he put on the emergency brakes; that when the truck struck the building he jumped out; that the radiator, fender and right side of the truck were broken; that there were six people in the touring’ car. On cross-examination he testified that the touring ear was only about 5 or 6 feet from him when he first saw it; that the governor on the truck was set at 15 miles.

The witness Beahan, who was standing on the northeast corner, testified that the Ford truck was going about 10 to 12 miles an hour; that the touring car came east on DeKoven street and as it got to Jefferson it went over on the north side of DeKoven, then turned south in Jefferson and struck the Ford truck; that the touring car was going from 25 to 30 miles an hour; that the touring car struck the truck and after the truck went into the building the driver jumped off; that immediately after the collision, some of the men who got out of the touring car ‘ wanted to beat up this man on the truck.”

The witness Ptaszek' was not able to tell the speed either of the truck or the touring car, although he stated that the touring car was “going at a good rate of speed” and that the truck “was not going very fast,” not as fast as the touring car.

The defendant introduced, also, the testimony of two young boys, but their evidence is of very little, if any, import.

The jury brought in a verdict for the plaintiff for $271.20. Counsel for the plaintiff remitted $66, and judgment was then entered for $205.20.

That the defendant owned the Ford truck, and employed the driver that was running it, and that it ran into and damaged the plaintiff’s building, is not disputed. But it is the theory of the defendant that the proximate cause of the injury to the plaintiff’s building was the negligence in driving the touring car and not negligence in driving the Ford truck. It does not seem to be necessary for us’to determine whether or not the plaintiff made out a prima facie case of trespass by proving (1) that he owned the building; (2) that it was damaged by the Ford truck and (3) that the defendant owned and controlled the Ford truck at the time it ran into the building. There is no doubt, according to some of the very early authorities, that it was unnecessary for the plaintiff in such a case either to plead or put in evidence of negligence. In Leslie v. Bray, 3 East 593, Grose, J., said: “Looking into all the cases from the Year Book in 21 H. 7, down to fw latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the 'immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass.” That it is not necessary to prove negligence seems to be the law in a. number of jurisdictions. Hall v. Moorman, 4 McCord (S. C.) 283; Beach v. Parmeter, 23 Pa. St. 196; Castle v. Duryee, 2 N. Y. Ct. App. 169. In the following, on the contrary, it has been held to be necessary to prove that the defendant was in some way at fault, and, therefore, guilty of negligence. Brown v. Kendall, 6 Cush. (Mass.) 292; Vincent v. Stinehour, 7 Vt. 62; Smith v. Kurruss, 31 Ill. App. 276. The more reasonable rule seems to be that which requires the proof of negligence. “The contrary rule would obviously be against public policy, because it would impose so great a restraint upon freedom of action as materially to check human enterprise.” 6 Thomp. Neg. 624.

In the instant case, however, the statement of claim affirmatively charges the defendant with negligence; and, in making out a prima facie case, the plaintiff presented evidence on that subject. Following that, the defendant then undertook, by way of exculpation, to show that he was without blame and that the proximate cause of the injury was the negligence of the driver of the other car. At the close of the evidence, the jury were instructed on the subject of negligence, and then found for the plaintiff. After a careful examination of the record, we are now of the opinion that the verdict and judgment thereon must stand.

Considering that it was after dark; that the truck was being driven, according to the testimony, from 8 to 30 miles an hour (Fortuna says 25 to 30 miles, the driver of the truck says 8 miles an hour, and Beahan, the witness for the defendant, says 10 to 12 miles an hour); that the collision occurred about the center of the intersection of two public streets about which were many buildings; that, according to the testimony of the driver of the truck, there were “a lot of young children around there ”; that under the circumstances reasonable care would involve careful attention to whatever traffic might be passing either way at the intersection; that it is highly improbable that the Ford truck going at a low rate of speed when struck by the touring car would have been driven through the signpost and over the curb, somewhat destroying the latter, and into the comer building so as to seriously damage it; that, as to judging the trustworthiness of the witnesses, the jury has a marked advantage over a court of review, we are of the opinion that the evidence does not justify us in holding that the verdict of the jury was manifestly against the weight of the evidence.

Further, it is contended by counsel for the defendant that there was no competent proof of damages. On that subject, only one witness was called. He testified that “the ordinary and usual value in the City of Chicago, at the time the building was injured, of putting it in proper shape” would be “about $300.” He was cross-examined, in detail, as to the work he did in repairing the building, but nothing was elicited that affected or qualified the opinion he had already expressed as to the total damage the building had suffered as the result of being struck by the truck. The contention, therefore, is, in our judgment, untenable.

Finding no error in the record the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice McSurely

text:
    Owen O’Brien, Appellee, v. Chicago City Railway Company and Chicago Railways Company, Appellants.
    Gen. No. 25,167.
    1. Workmen’s Compensation Act, § 5

      —-employee’s right of action under act. The provisions of the Workmen’s Compensation Act of 1913 [Call. 1916 Stat. 1f 5475(1) et seg.] are intended to apply to all employees and employers as defined thereby. There are two classes of employers: Those directly employing him and those not employing him but negligently injuring him, the second class being divided by section 29 of the act [Call. 1916 Stat. If 5475(29)] into those who have elected to be hound by the act and those who have rejected it, and, except as permitted by section 29 [Call. 1916 Stat. 1f 5475(29)], an employee is restricted in his right of action, as to employers rejecting the act, by section 6 [Call. 1916 Stat. If 5475(6)].
    2. Workmen’s Compensation Act, § 5*—what employee must allege and prove in action against third person. To entitle an employee to recover under section 29 of the Workmen’s Compensation Act of 1913 [Call. 1916 Stat. If 5475(29)] against a person other than the employer, such person having elected not to be bound by the act, he must allege and prove all of the conditions stated in the act, including that the injury was not proximately caused by the negligence of the employer nor his employee.
    3. Workmen’s Compensation Act, § 5*—when employee cannot recover in action against third person. In view of the purpose of the Workmen’s Compensation Act of 1913 [Call. 1916 Stat. If 5475(1) et seq.1 and the language of section 6 thereof [Call. 1916 Stat. If 5475(6)], an employee cannot recover in a common-law action brought under section 29 [Call. 1916 Stat. If 5475(29)] against a third person, who has elected not to be hound by the act, where the accident was caused by the concurrent negligence of plaintiff’s employer.
    4. Workmen’s Compensation Act, § 5

      —what evidence not admissible in action by employee against third person. In an action by an employee brought under section 29 of the Workmen’s Compensation Act of 1913 [Call. 1916 Stat. f 5475 (29) ] against one who had rejected the act to recover for personal injuries, it is error to permit plaintiff to introduce in evidence. a contract between him and his employer, the City of Chicago, reciting the circumstances of the injury, stating that it was not proximateiy caused by the negligence of such city but under circumstances creating a legal liability of defendants, consenting to the bringing of the suit by plaintiff and assigning to him any claim which the city might have against defendants on account of subrogation.
    Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed.
    Opinion filed December 8, 1919.
    Charles LeRoy Brown, for appellants; John R, Guilliams and John E. Kehoe, of counsel
    James C. McShane, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, bringing a suit to recover compensation for personal injuries, upon trial had a verdict for $12,500. .Judgment for this amount was entered against defendants, from which they have appealed.

The accident happened on March 23, 1917. Plaintiff was an employee of the City of Chicago, and at this time was one of a gang of six men trying to locate a leak in a water pipe by digging holes in.Ashland avenue, a north and south street in Chicago, upon which defendants operate street cars. About quitting time in the evening, plaintiff and another member of the gang were laying boards over a hole which was dug west of the street ear tracks, and which came about a foot from the outside or west rail. While plaintiff was engaged in rearranging these boards he was struck by a southbound street car and received the injuries involved in this suit.

The questions of negligence of the defendants, the contributory negligence of plaintiff, and errors upon the trial, are extensively argued, but we cannot properly discuss them in view of our conclusion that plaintiff is barred from this action by the Workmen’s Compensation Act of 1913 (Hurd’s Ill. St. 1915-16, ch. 48, p. 1272, Call. 1916 Stat. ft 5475 [1] et seq.). The particular sections'under consideration are section 6 and the .second part of section 29. These are as follows:

“6. No common law or statutory right to recover damages for injury or death sustained by any employe while engaged in the line of his duty as such employe other than the compensation herein provided shall be available to any employe who is covered by the provisions of this act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.”

“29. * * * Where the injury or death for which compensation is payable under this act was not proximately caused by the negligence of the employer or his employes, and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this act, but in such case if the action against such other person is brought by the injured employe or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employe or personal representative there shall be paid to the employer the amount of compensation paid or to be paid- by him to such employe or personal representative, provided that if the injured employe or his personal representative shall agree to receive compensation from the employer or to institute proceedings to recover the same or accept from the employer any payment on account of such compensation, such employer shall be subrogated to all the rights .of such employe, or personal representative and may maintain, or in case an action has already been instituted, may continue an action either in the name of the employe, or personal representative or in his own name against such other person for a recovery of damages to which but for this section the said employe or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employe or personal representative all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this act and all costs, attorneys’ fees and reasonable expenses incurred by such employer in making such collection and enforcing such liability. ’ ’

Plaintiff’s declaration alleged negligent operation of the car in various particulars, and also that plaintiff was injured while he was engaged in his work as an employee of the City of Chicago, and that the defendants had elected not to be bound by the provisions of the Compensation Act, and that neither of them was bound by said act at the time of the accident. Apparently this was an attempt to bring the action under the second part of section 29 above quoted, and upon the trial plaintiff claimed that this was an action under this section.

It was shown by the evidence that plaintiff and his employer, the City of Chicago, at the time of the accident were under the Compensation Act, and that the injuries arose out of and in the course of plaintiff’s employment; that he was entitled to and had received and was receiving from the city compensation for such injuries under the act; that defendants are employers but had elected not to operate under the act,

Does the Compensation Act of 1913 leave an employee to v/hom compensation is payable under the act any common-law right to sue a third person for damages on account of such injury, or is whatever right of action he may have against a third person saved to him by section 29 but dependent upon its conditions 1

In Matthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378, the court said that the Workmen’s Compensation Act “was designed as a substitute for previous rights of action of employees against employers and to cover the whole ground of the liabilities of the master, and it has been so regarded by all courts. * * * The act, in taking away existing rights of action of the employee and extending the liabilities of the employer, fixes limits to the amount to be recovered, and is sustained as a legitimate exercise of the police power for the promotion of the general welfare by covering the entire subject with fixed rules. (New York Central Railroad Co. v. White, 243 U. S. 188, 13 N. C. C. A. 943.)” Other cases to the same effect are Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413; Friebel v. Chicago City Ry. Co., 280 Ill. 76, 16 N. C. C. A. 390; Johnson v. Choate, 284 Ill. 214; Vose v. Central Illinois Public Service Co., 286 Ill. 519; Gones v. Fisher, 286 Ill. 606. The general purpose and scope of such legislation has been stated riot only in these cases but in so many others in other jurisdictions, as to make amplification unnecessary.

The .rights of an injured employee against a negligent third party are conditioned upon section 29, the first part of which concerns third parties who have elected to be bound by the act; and the second part, which is above quoted, affects those who have elected not to be bound by the act. In Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413, it was - contended that section 6 applied only to suits of an employee against his employer, and not to claims against third parties. •The court said that this claim would ha,ve much force except that in determining the meaning of section 6 the provisions of section 29 must be considered, and that the sections must be construed together, the court saying:

• “The two sections, when construed together, must be regarded as meaning that no common-law or statutory right to recover damages for any accidental injury arising out of and in the course of his employment shall be available to any employee, either against his employer or against any third person whose negligence may have occasioned the injury, where such person had also elected to be bound by the act, the employer in such case being subrogated to the right of the employee or his personal representative to recover, and the amount of the recovery being limited to the -aggregate amount of compensation payable under the act. Where, however, the injury for which compensation is payable under the act was not proximately caused by the negligence of the employer or his employees and was caused by the negligence of some other person who had elected not to be bound by the act, then the action may be brought to recover damages by the injured employee, or his personal representative, or the emnloyer, according to circumstances.”

To the same effect are the opinions in Friebel v. Chicago City Ry. Co., 280 Ill. 76, 16 N. C. C. A. 390; and Gones v. Fisher, 286 Ill. 606. We understand these cases to hold, upon the facts there considered, that the respective plaintiffs would have no right of action against the third party except as preserved by the provisions of section 29.

We do not think it is necessary at this time to determine whether or not the rights of employees against every kind or all classes of negligent third,persons are limited by sections 6 and 29. The third persons included in section 29 are either those who have elected to be bound by the Compensation Act or those who have elected not to be bound. These can be only those persons who are ■ employers as defined in section 4, and in occupations described in section 3 of the act. We are expressing no opinion as to the liability of the many persons who are not eligible to exercise any option with reference to the Compensation Act, but are considering only the instant case, where the third party alleged to be negligent is an employer within the scope of the act and who has elected not to be bound by it.

From a consideration of what is said in the opinions above cited, and the general considerations giving rise to this legislation, we are of the opinion that the provisions of the act are intended to apply to all employees and employers as defined by the act; that the classes of employers are two: (1) those directly employing the particular injured employee, and (2) those not employing him but negligently injuring him; that this second class is divided by section 29 into those (1) who have elected to be bound by the act, and (2) those who have elected not to be bound; that except as permitted under the conditions stated in the second part of section 29, an employee, as to employers refusing to be under the act, is restricted in his right of action by section 6. If this is a proper construction of the act it follows that plaintiff has no right of action against defendants, except as saved to him by section 29 and under the conditions therein stated.

Defendants argue that for plaintiff to bring himself within this saving provision he should have alleged in his declaration and proven all the conditions therein named, and that the declaration fails in this respect by omitting to allege that the injury “was not proximately caused by the negligence of the employer or his employees.” As noted above, the declaration does not allege the noneoricurrent negligence of plaintiff’s employer, the city, or its employees. It has been held definitely in this State that an employee suing to recover must in his pleadings present all the allegations necessary to show a liability on the part of the party sued. In Vose v. Central Illinois Public Service Co., 286 Ill. 519, the court specifically held as to one of the conditions named in the second part of section 29 that it must be alleged in the declaration, the court saying: “If the recovery had been sought under the second clause of said section it would have been necessary to have averred that plaintiff in error had elected not to be bound by the act.” To the same effect are Reynolds v. Chicago City Ry. Co., 287 Ill. 124, and Beveridge v. Illinois Fuel Co., 283 Ill. 31, 17 N. C. C. A. 463. This rule is restated concisely in Davis v. St. Paul Coal Co., 286 Ill. 64, where the court quoted with approval from the Beveridge case, supra: “A declaration which fails to state a fact whose existence is necessary to entitle the plaintiff to recover does not state a cause of action. Walters v. City of Ottawa, 240 Ill. 259.” In Hartray v. Chicago Rys. Co., 290 Ill. 85, opinion handed' down at the October, 1919, term of the Supreme Court, this rule was restated, the court saying: “In a statutory action like this, where the right is conditional, the plaintiff must bring himself clearly within the prescribed requirements necessary to confer the right of action.” . And at the same term of court, in Bishop v. Chicago Rys. Co., 290 Ill. 194, the same rule was applied.

We do not read the Gones case, supra, as holding that section 29 is merely a condition to the employer’s right to be subrogated. It may be this, but is also clearly more. The substance of the opinion in the Gones case is that under the conditions stated in the second part of section 29, an employee may maintain his common-law right of action; and in that case the pleadings had alleged all the statutory conditions, including, an allegation that the injuries were not proxima.tp.~ly caused by the negligence of the employers or their employees, which, as we have seen, is one of the conditions stated in the section.

We see no escape from the conclusion which logically follows from the above considerations that plaintiff failed to state in his declaration a cause of notion, and that the trial court was in error in denying defendants’ motion in arrest of judgment.

There ivas evidence tending to show that the accident was caused by the negligence of plaintiff’s employer, the city, acting through its foreman, but this was neutralized by instruction No. 5, at plaintiff’s request, which told the jury that plaintiff could recover, the other necessary elements being proved, even if the negligence of plaintiff’s employer contributed to the accident.

The record thus gives us this question: In view of the purpose of the Compensation Act and the definite language of section 6, has plaintiff a common-law right of action against defendants if the accident was caused by the concurrent negligence of plaintiff’s employer? We hold that the answer must be in the negative.

We are further of the opinion that even if plaintiff could proceed in his common-law action, yet this judgment should be reversed and the cause remanded, it was prejudicial error for plaintiff to introduce in evidence the contract which appears as “Plaintiff’s exhibit G. ’ ’ Apparently this is an agreement in writing between the plaintiff on the one hand and the City of Chicago, acting through its City Attorney, on the other. This contract is quite long. It recites the circumstances of the occurrence and the claim that plaintiff’s injuries were not proximately caused by the negligence of the city but were caused by circumstances creating a legal liability on defendants; also that plaintiff had commenced his suit against defendants to recover damages, and the claim that the city would be, were it not for this contract, subrogated to the plaintiff’s right to recover damages. The contract further purports to give the consent of the city to the plaintiff to bring the suit against the defendants and to recover damages, and the city assigned to him any claim against the companies which the city may have on account of subrogation. It contained also other provisions to the same point. The effect of this was to show to the jury that the City of Chicago sanctioned'the bringing of the suit, and that if there should be a judgment against the defendants and-favorable to plaintiff it would be to the pecuniary advantage of the city. It needs no argument to convince that the opinions and interests of outside parties as to any litigation are wholly immaterial and incompetent. The rule is stated in 11 Am. & Eng. Encyc. of Law (2nd Ed.) 509:

“It is a general rule, of great antiquity, in the common law, that no litigant shall be affected by the words or acts of others with whom he is in no way connected; res inter alios acta alteri nocere non debet.”

The introduction of this contract was prejudicial error which would require a reversal of the judgment and remanding of the cause for a new trial.

However, we prefer to base our conclusion upon the grounds first hereinabove set forth. Any further action against the defendants is barred by the statute of limitations. The judgment will be reversed without remanding.

Reversed.


text:
    Goldsmith Brothers Smelting and Refining Company, Appellee, v. The Western Union Telegraph Company, Appellant.
    Gen. No. 25,223.
    Telegraphs and telephones, § 20

      —liability of telegraph company for failure to intercept and cancel telegram sent Toy plaintiff. There can be no recovery against a telegraph company for its failure to succeed in intercepting and canceling, before its delivery to the sendee, a business telegram previously delivered to it by plaintiff for transmission.
    Appeal from the Municipal Court of Chicago; the Hon. John R Newcomer, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and judgment here.
    Opinion filed December 8, 1919.
    West & Eckhart, for appellant.
    Fox & Blumberg, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this appeal defendant seeks the reversal of a judgment against it of $99.43 in a fourth-class case tried by the court.

Plaintiff’s claim was based upon an alleged failure of the defendant to cancel, pursuant to orders, a previous telegram sent by plaintiff over defendant’s lines. Plaintiff is engaged in the business of buying, smelting and refining precious metals in the City of Chicago. On December 29, 1917, it shipped to Handy & Harman of New York City approximately 8,000 ounces of silver, accompanied by a letter. On December 31 plaintiff received a telegram from Handy & Harman referring to the letter of the 29th and bidding 91 cents for the silver, and requesting a prompt reply. At 4 o’clock of the same day, plaintiff delivered to the defendant, at a branch office in the Mailers Block, Chicago, on the usual telegraph blank, a message addressed to Handy & Harman, reading: “Accept your offer. Silver shipped last Saturday. ’ ’ Shortly thereafter, on the same day, plaintiff received an offer from another concern for this same silver a.t a slightly higher figure. Acceptance of this necessitated a withdrawal of the previous acceptance to Handy & Harman, and for this purpose plaintiff called up the branch office and requested that this latter message be recalled; afterwards plaintiff’s treasurer called in person at the telegraph office to ^effect if possible this cancellation. He there had an interview with one of the clerks of the defendant, who told plaintiff’s representative that the only way this could be canceled would be by sending a telegram to New York. Such a telegram is called a “service message.” Later on the same day plaintiff’s stenographer called up the telegraph office to ask whether the Handy & Harman message had been recalled. She testified that she was informed that this had been canceled. The clerk of the defendant with whom she talked denies this and asserts that he told her he had sent the service message to New York and could not tell until he had received an answer to it as to whether the first message had been canceled. We are of the opinion that this latter statement is entitled to the greater credence as being entirely consistent with the situation.

There is evidence, of questionable competency, that plaintiff subsequently accepted the larger offer made by the parties other than Handy & Harman. After defendant’s operator had told plaintiff’s representative that the first message would be recalled if possible, a service message was sent to New York, and also several tracers. It appears, however, that neither the service message nor the tracers caught up with the first telegram, which, was delivered to Handy & Harman in due course of business. On January 5,1918, a clerk in the employ of defendant at New York called at the office of Handy & Harman and spoke to a Mr. Gray of that office, telling him of the desire of plaintiff to recall the acceptance of December 31. Gray then stated that this would be canceled and this was communicated to the Chicago office of the defendant on the same day. Shortly thereafter Gray ’phoned the New York office of the defendant that Handy & Harman declined to allow this acceptance to be canceled. •

Plaintiff says in its brief before us that there is no case in the books involving the question of the right of a party to recover under such circumstances. We can well believe this. It seems self-evident that there can be no recovery. Defendant at most undertook to use its best endeavor to intercept the first message before delivery. The record does not show any lack in this attempt. When the first message was delivered to defendant it obligated itself to transmit and deliver the same promptly and expeditiously. Apparently this obligation was so well performed as to make it impossible for the following service message of cancellation to overtake the first. To permit plaintiff to recover for this failure would give it a right of action because of the prompt performance of the duty of defendant in the first instance. In other words, the more efficiently defendant performed its obligation with reference to the first telegram, the greater the possibility it might be liable for failure to avert the results of such efficiency. Such a contention requires no argument to demonstrate its unreasonableness.

The record discloses no cause of action, and the judgment is reversed and judgment of nil capiat is entered in this court.

Reversed and judgment here.


text:
    Caroline Myhre, Appellee, v. Chicago City Railway Company, trading as Chicago Surface Lines, Appellant.
    Gen. No. 25,253.
    1. Street railroads, § 131

      —when evidence in action for personal injuries does not show that car was traveling at excessive speed. In an action to recover for personal injuries received through being struck by a street car, where the preponderance of the evidence tends to prove that the car ran only a short distance after striking plaintiff, most of the witnesses estimating the distance at from 12 to 18 feet, it is reasonably inferable that the car was not traveling at excessive .speed.
    2. Negligence, § 79*-—when and where; person must look for danger. Where it is incumbent upon one, as an act of caution to look, he must look when and where he can act safely with reference to any danger ^bserved, else the element of caution is wanting.
    3. Street railroads, § 95*—when person approaching tracks does not discharge duty of looking for cars. If one crossing a street railway track looked for approaching cars only at the instant she was struck, she failed to look with the care and caution essential to her safety, and must be considered as having approached the track and gone into danger without looking.
    4. Street railroads, § 98*—when person passing behind car and struck by car on parallel track is guilty of contributory negligence. Where, in an action to recover for personal injuries received by one, as she passed behind the street car from which she had alighted, through being ‘struck by a car approaching from the opposite direction on the track which she was trying to cross, it appears that both of the cars were of the large pay-as-you-eiiter type, with round corners, and there was a clearance of 2 feet between them, it will be held that it was physically possible for plaintiff to have seen the approaching car while yet a sufficient distance from tier to have allowed her to act to avoid the danger, and, in passing on the track in such circumstances, she will be held to have been guilty of contributory negligence as a matter of fact.
    Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jb., Judge, presiding. Heard in this court at the March term, 1919.
    Reversed with finding of fact.
    Opinion filed December 8, 1919.

      Charles LeBoy Brown, for appellant; John B. Guilliams and John E. Kehoe, of counsel.
    Bangs, Frankhauser & Colby and Charles G. Hutchinson, for appellee; Edward P. Felker, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this appeal defendant seeks to have reversed a judgment against it of $7,000, recovered by plaintiff in an action for personal injuries. ■

The accident occurred about 7 o’clock on the evening of March 1, 1916. Plaintiff had been a passenger on one of defendant’s street cars going'west on Armitage avenue, an east and west street in Chicago. Parallel to and south of the westbound track is another track, on which run the eastbound cars. When the westbound car carrying plaintiff approached Kildare avenue, a street running north and south, it stopped, with its front end at the near crossing, which would be the east line of Kildare; there is no street car line on Kildare avenue. This would leave the rear end of the car about 50 feet east of the crossing. Plaintiff alighted from the rear platform, and while that car was standing she started to walk south behind it, on a line about 2 or 3 feet from it. She walked towards the south or parallel track, and was struck by an eastbound car running on that track. There is weighty evidence that she was not struck by the front end of the car, but walked into the side of it at the folding closed doors of the front platform, near the northeast corner of the car.

Several witnesses testified that the gong on the eastbound car was rung while passing the other car, while other witnesses testified that it was not. There is also variant evidence as to the speed. The preponderance tends to prove that the car ran, after the collision with plaintiff, only a short distance, most of the witnesses placing it 12 to 18 feet. It is reasonably inferable that there was no excessive speed under the circumstances. The headlight and other electric lights óf the eastbound car were lighted, and apparently there were no other vehicles or noise which would tend to prevent knowledge of the moving car. There is evidence that snow was falling, but not in such a way as to prevent any one seeing an approaching lighted street car if one looked towards it.

Cases having to do with similar occurrences have frequently been in the courts. To indicate all of them would make a long list; a few of them are: Brown v. Chicago City Ry. Co., 155 Ill. App. 434; Burke v. Chicago City Ry. Co., 153 Ill. App. 388; Von Holland v. Chicago City Ry. Co., 148 Ill. App. 320; Healy v. Chicago City Ry. Co., 167 Ill. App. 524; Koehler v. Chicago City Ry. Co., 166 Ill. App. 571; Ohnesorge v. Chicago City Ry. Co., 177 Ill. App. 134; Devine v. Chicago City Ry. Co., 207 Ill. App. 28; Welch v. Chicago City Ry. Co., 195 Ill. App. 146; Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 625; Stack v. East St. Louis & S. Ry. Co., 245 Ill. 308, 1 N. C. C. A. 687; Chicago City Ry. Co. v. O’Donnell, 208 Ill 267. There are also a large number of reported cases in the courts of other States. The latest statement of our own Supreme Court in a similar case is in Rainford v. Chicago City Ry. Co., 289 Ill. 427.

Plaintiff testified that two other passengers alighted from the westbound car and crossed the parallel track ahead of her, but she is uncertain as to how far ahead of her they were, placing the distance all the way from 5 to 18 or more feet. There is not sufficient evidence as to the location and movements of these men upon which to predicate any possible argument that plaintiff was misled by what they did.

She also testified, with reference to her conduct in looking for an approaching car on the parallel track, that “I was hit just as I looked. * * * Just as I turned to look toward the west the car hit me, just at the very-instant I turned to look. I didn’t see the car until just the instant it hit me. I did not even see it a fraction of a second before it hit me. The very instant I saw it, it came in contact with me.”

' The purpose of looking, as an act of caution, is to determine what one shall safely do next; ordinarily this will be to move or to stand still; hence the'looking must be done when and where one can act safely with reference to any danger observed, otherwise the act of looking is minus the element of caution. If plaintiff looked- only the instant she was struck, she failed to look with the care and caution necessary for her safety, so that she must be considered as having moved towards the, tracks and within the danger zone without looking. This would seem to be conclusive, unless it is proven by plaintiff that the approaching eastbound car was so hidden from view by the standing westbound car that there was no place from which it was possible for her to see the approaching car in time to avoid collision. Plaintiff could have moved slightly away from the standing car and thus secured a longer view up the parallel track, or she could have waited until the westbound car had moved on, leaving a wholly unobstructed view. However, the claim that it was physicially impossible under the existing circumstances to see the other car is not . supported by the facts. The cars in question were the ■ large pay-as-you-enter cars with round comers. They ’.have an overhang from the rails of 1% feet and a clearance of 2 feet between cars. From these items it is demonstrable that under the instant circumstances the approaching car could have been seen while yet a sufficient distance from the plaintiff to have allowed her to act so as to avoid any danger. She must therefore be held to have walked into the line of danger without using her sight, which if used would have saved her.

Was such conduct under such circumstances the exercise of ordinary and reasonable care and caution for one’s own safety! We hold that it was not, bnt was negligent conduct on plaintiff’s part which directly contributed to the accident in question. It is not necessary that we should determine whether she was guilty of contributory negligence as a matter of law. We are of the opinion that she was guilty of contributory negligence as a matter of fact; hence the judgment of the trial court is reversed with a finding of fact.

Reversed ivith finding of fact.

Finding of fact. We find as a fact in this case that plaintiff was guilty of negligence which directly contributed to the accident described in her declaration.


author: Mr. Justice Dever

text:
    Rose Ferguson and Anna Kowalski, Appellees, v. Frank M. McKey, Trustee, Appellant.
    Gen. No. 25,146.
    1. Assignments fob benefit of creditors, § 74

      —when direction to trustee includes lien of debtor’s landlord. Where the assignment of a debtor’s assets made to a trustee by virtue of a composition agreement between the debtor and certain of his creditors directs the trustee to provide for or pay all legal or equitable liens against the property, such direction includes the lien of the debtor’s landlord, who was not a party to the agreement, under an unrecorded lease.
    2. Assignments for benefit op creditors, § 157*—when debtor cannot be held to have been insolvent at time bankruptcy proceedings were begun. Where, after the filing of an involuntary petition of bankruptcy, 'a composition agreement is entered into between the debtor and certain of his creditors pursuant to which action is delayed on the bankruptcy petition and the assets are assigned to a trustee, such agreement providing for the full payment of the creditors’ claims wúth interest, it cannot be held in a suit in equity against the trustee to enforce a landlord’s lien that the debtor was in fact insolvent at the time the bankruptcy proceedings were begun or that, hdd no composition agreement been entered into, it would ultimately have been adjudicated a bankrupt, notwithstanding the sale of the assets by the trustee realized a sum insufficient to pay the scheduled liabilities of the debtor.
    3. Assignments fob benefit of cbeditobs—status of trustee. Where a • trustee takes under an assignment of a debtor’s assets pursuant to a composition agreement between the debtor and certain of his creditors entered into after the filing of an involuntary petition in bankruptcy against the debtor, further proceedings under which were delayed by the terms of the composition agreement, he is not to be regarded in the same light as a trustee in bankruptcy.
    4. Assignments fob benefit of cbeditobs, § 157

      -—When assign-'merit does not deprive assignor’s lessor of lien for rent. An assignment to a trustee made pursuant to an agreement between the assignor and certain of his creditors, in accordance with which the trustee occupies and uses the premises leased by the assignor, paying no consideration therefor, does not operate to deprive the assignor’s lessor of the lien fbr rent contained in the lease, such lessor not having been a party to the agreement between the assignor and the creditors, but the proceeds of the sale of property subject to the lien are subject thereto in the trustee’s hands. '
    5. Assignments fob benefit of cbeditobs, § 72*—trustee as not purchaser for value. A trustee who takes title to property of a lessor under an assignment by the lessee made pursuant to an agreement between the lessee and certain creditors, to which the lessor is not a party, is not a purchaser for value and will not be protected against the enforcement of a lien in the lease against property of the lessee subject thereto.
    6. Bankbuptcy—proceedings as superseded by composition agreement. Semble, that where, after a bankruptcy petition is filed, a composition agreement is entered into between a majority of the creditors in number and amount and the debtor pursuant to the terms of which an order is entered delaying action on the petition, the bankruptcy proceedings are superseded and the debtor is reinvested with the assets freed from any rights acquired by the creditors by the filing of the petition.
    7. Assignments fob benefit of cbeditobs, § 157*—when claim for rents entitled to priority. Where the trust agreement under which a debtor’s assets are conveyed empowers the trustee to bargain, sell, manage and otherwise deal with the trust property and provides 'that all liabilities incurred in connection with the execution of the trust by him are to be a charge upon the property and entitled to priority “over any debts now owing to said assenting creditors,” a claim for rents accruing after the trustee took possession of the debtor’s leased premises is entitled to priority.

      Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Herman Frank, for appellant.
    Bute, von Ammon & Johnston, for appellees.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook county.

The complainants were the owners of premises known as No. 2109 to No. 2127 Allport street, Chicago, which under various leases they had leased to Passow & Sons, a corporation; these leases contained the following provisions:

“Lessors should at all times have the right to dis-train for rent due and shall have a valid and first lien upon all property of said lessee, whether exempt by law or not, as security for the payment of the rent reserved in said lease. ’ ’

An involuntary. petition in bankruptcy was filed against Passow & Sons in a federal court on September 26,1917. During the pendency of the bankruptcy proceedings, which were contested by Passow & Sons, an order was entered which delayed action on the petition until it could be determined whether a proposed composition agreement would be confirmed.

The composition agreement which was proposéd by Passow & Sons offered to its creditors a settlement of their provable claims for 100 per cent of their value, to be paid in three équal instalments on or before 6, 12 and 18 months, respectively, after the date of the confirmation of the agreement by the court, together with interest thereon at 5 per cent per annum. A majority of the creditors in number and amount accepted the composition agreement and on September 21,1917, an order was entered in the District Court of the United States for the Northern District of Illinois, Eastern Division, confirming the agreement. At the time of the confirmation of this agreement Passow & Sons delivered to Frank M.° McKey, as trustee, a trust agreement dated August 20, 1917. This instrument was recorded in the recorder’s office of Cook county on September 24, 1917, and was again recorded in the same office on January 2,1918. At this time Passow & Sons were indebted, according to the schedule filed by it in the bankruptcy proceedings, in the sum of $100,000. Later the trustee, McKey, sold all of the assets of the corporation in his hands, except five lots of land, for a total sum of $50,419.94.

The trust agreement under which McKey held Pas-sow & Sons’ assets authorized the trustee, in case of default by Passow & Sons of its promises made in the composition agreement, to sell and dispose of the assets in his hands for the benefit of creditors. The complainants were not parties to the composition agreement, and it is insisted that McKey, the trustee, “took said legal title of said assets and leases purely as a voluntary trustee and subject to all claims, charges and liens, legal or equitable, against said property and assets.”

Counsel for defendant contends that the trustee is a purchaser for value; that he did not take the assets of Passow & Sons as a voluntary trustee or assignee and that complainants are not entitled to a lien for rent due them on the personal property in the hands of the trustee. It is said that the defendant stands in the position of a purchaser for a valuable consideration and that he is not affected by an alleged secret lien, which is said to have existed between the complainants and the owners of the premises. The leases in question were not recorded.

Under the leases Passow & Sons had the right to possession of a part of the premises in question from October 1,1915, to October 30,1925, at a rental of $350 per month, the balance of the premises being leased to Passow & Sons for the period from May 1, 1916, to April 30,1921, at a rental of $300 per month. The corporation, Passow & Sons, was in possession of, the premises on September 21, 1917, at which time the composition agreement was confirmed and the assignment in writing of all of its property was executed by it to the trustee.

_ Complainants in their amended bill claim a lien upon all the assets of the corporation which were on the leased premises at the time the leases were executed and also claim ownership of certain fixtures, apparatus and equipment attached to the realty and to certain personal property, consisting of worktables, benches, apparatus and utensils of various ‘sorts. In their bill complainants prayed that the fixtures, apparatus and equipment should be decreed to be a part of the real estate; for an accounting as to the amount of rent and interest due; that the personal property subject to lien or liens be sold to satisfy the amount due and that a receiver be appointed to take possession thereof.

In November, 1917, the trustee sold all the assets of Passow & Sons and it was conceded that the lien or liens of complainants; if any, for rent upon the assets located in the premises should be transferred to the proceeds of the sale, which were more than sufficient to pay the amount due complainants. The amount due complainants, $2,016.40, is for rent of the premises which accrued after the filing of the petition in the bankruptcy proceedings.

The assignment agreement provided inter alia that:

“The trustee shall, as soon as may be after his acceptance of this trust, pay in full all wages of employees and all debts owing to any person or persons whose claims are entitled to priority under the laws of the United States relating to bankruptcy.”

It further provided that

“all liabilities so incurred by him shall be a charge upon the trust property, entitled to priority over any debts now owing to the said assenting creditors, or any of them, except those holding security or having a lien, legal or equitable, upon any of said trust property.”

And also that the trustee was to

“pay to any person holding a mortgage or lien upon any part of said trust property any sum deemed proper or necessary to secure the release or discharge of said mortgage or lien, in whole or in part, * *

The assignment agreement also provided:

“The net proceeds from the said trust estate which shall remain after the payments hereinbefore, provided for, shall be applied and distributed by said trustee ratably, without preference or priority, to the payment of the debts and obligations and liabilities of said Passow & Sons, evidenced by the notes provided for and given in the composition proceedings above referred to, provided, always, that creditors holding liens, legal or equitable, shall be entitled to priority out of such proceeds, according to their respective liens.”

A decree was entered in the cause finding the equities of the cause with complainants and it directed inter alia that the defendant should pay the sum of $2,016.40 out of the proceeds of the sale of the property to complainants. We are of opinion that the decree of the trial court was correct. Under the terms of the assignment agreement the trustee was directed to provide for or pay all legal or equitable liens existing against the property in his hands, including the leases under which the trustee held possession of the property. There had been no adjudication in the federal courts of the issues presented by the petition filed by creditors of Passow & Sons and it is stipulated that the proceedings were delayed for a considerable period of time before the order confirming the composition agreement was entered in the cause. Nothing in the record before us shows that the creditors would have been successful in having Passow & Sons adjudicated a bankrupt. That question, as stated, was still pending in the federal court when the assignment was made to the defendant. It is conceded that the scheduled liabilities of Passow & Sons amounted to $100,000 and that certain assets which passed to him under the trust agreement were sold, for $50,419.94, and while it is asserted that the total assets of Passow & Sons did not amount to more than $71,000, we are unable, upon examination of the stipulations entered into at the trial, to conclude* as urged, that the total assets of the assignor were not more than this sum. What the assets of the assignor’s estate were is an undetermined question on the record. We are not authorized therefore to hold that Passow & Sons was in fact insolvent at the time the bankruptcy proceedings were begun or that, had no composition agreement been made with the creditors, it would ultimately have been' adjudicated a bankrupt. The amount for which certain of the assets were sold by the trustee is not by any means conclusive on the question of the value of such assets, or what they would or could have been sold for at a later or different time.

Passow & Sons, so far as the record shows, did not at any time concede that it was in fact insolvent. Indeed, the composition agreement provides for the payment to its creditors of a sum equal to 100 per cent of the amount of the face value of the claims, with interest at 5 per cent until payment be made. The promissory notes of Passow & Sons were accepted by its creditors for the full amount of their claims and an assignment of all of its property was made to the trustee for the evident purpose of securing the payment of these notes.

We are unable to agree with counsel for defendant that the trustee should be regarded in the same light' as a trustee in bankruptcy; he took the leases among the other assets of Passow & Sons and he occupied and used the premises in question by virtue of the rights and privileges given to the assignor under the leases. He, the trustee, paid no consideration therefor, and in the absence of compelling authority we are not willing to hold that the complainants should be deprived of so valuable a property right solely because other creditors, in an effort to obtain full payment of their own claims, had entered into an agreement which, if the contention of the defendant is upheld, would deprive the complainants, without their consent and perhaps without their knowledge, of their prior claims against the property.

It has been definitely decided that a lien created by or under the terms of a written lease is valid and enforceable against an assignee of a lessee under a voluntary assignment for the benefit of creditors. O’Hara v. Jones, 46 Ill. 288.

“It is a general rule that whenever a right in equity attaches against a person, that equitable right binds all persons claiming under or against that person who have not special liens on any of the property, and hence it follows that general creditors are in all cases bound by a particular equity.” Powell on Mortgages, 459.

Keeping in mind that the lien claimed herein arises under the terms of the leases and that the trustee took title to the property solely by act of the creditors and the lessee, we are of opinion that he is not a purchaser for value and that the complainants are entitled to enforce the lien created by the leases against the proceeds of the sale of the property in his hands.

We are inclined to agree with the contention that the composition agreement had the effect of superseding the bankruptcy proceedings and of reinvesting Passow & Sons with all of its assets freed from any rights acquired by the creditors by the filing of the petition in bankruptcy. 7 Corpus Juris 346.

We are inclined to the view also that aside from the question above discussed and whatever the law may be with reference thereto, that complainants were entitled to preferred payment of their claims as a result of the agreement under which the assignee took possession of the property. As stated, the claim is for rents which accrued after the bankruptcy petition had been filed. Under the trust agreement the trustee was given broad powers to bargain, sell, manage and otherwise deal with the. property in his hands, and it was provided therein that all of the liabilities incurred in connection with the execution of the trust agreement by him were to be a charge upon the trust property and entitled to priority ‘ ‘ over any debts now owing to said assenting creditors or any of them.”

If the trust agreement is to be given effect, and if it was intended that all of the defendant’s creditors were bound thereby, then we think that under the trust agreement itself the defendant is bound to allow the claim of complainants as a preferred claim against the moneys in his hands.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Joseph T. Delfosse, Appellee, v. City of West Hammond et al., on appeal of City of West Hammond, Appellant.
    Gen. No. 25,183.
    1. Mandamus, § 148

      —what allegations in petition against city in assessment matter not mere conclusions. On a petition for a writ of mandamus against a city by one claiming as an innocent bolder for value of certain of its special assessment bonds to compel the city board of local improvements to file an estimate of the amount of an alleged deficiency in a certain special assessment and to compel the city to cause a supplemental assessment to be levied to meet the cost of the improvement, allegations that “an assessment roll was duly filed,” “a commissioner was duly appointed,” “publication duly made,” and others in similar form, are sufficient and are not objectionable as being mere conclusions of the pleader.
    2. Mandamus, § 148*—what allegations in petition against city to compel levy of supplemental assessment are sufficient. On a' petition for a writ of mandamus against a city to compel the levy of a supplemental assessment to meet a deficiency in a specified special assessment, it is sufficient for the petitioner to allege that the proceedings resulting in the confirmation of the special assessment were in every respect regular and in conformity with the law, without stating evidentiary facts or setting out every detail of the assessment proceedings and issuance of the bonds.
    3. Mandamus, § 148

      —when petition against city to compel levy of special assessment is not defective. A petition for a writ of mandamus against a city to compel the levy of a supplemental assessment to meet a deficiency in a specified special assessment, held not defective as regards its allegations as to the filing of the certificate of completed work within the statutory time after the completion of the improvement.
    4. Mandamus, § 160*—carrying back demurrers to special pleas to petition. Where a general demurrer filed to a petition for a writ of mandamus is overruled and defendant does not stand by the demurrer but files special pleas, demurrers to such special pleas cannot be carried back to the petition.
    5. Mandamus, § 152*—what cannot be set up by plea on petition against city to compel levy of supplemental assessment. On a petition for a writ of mandamus to compel a city to levy a supplemental assessment to meet a deficiency in the payment for an improvement of which it has presumably received the benefit, the city cannot set up by plea that the judgment of confirmation in the original proceedings showed that the property affected by the assessment “would have benefited by the said improvement no more than the amount against it,” as such defense can only be presented, if at all, on the trial of the issues raised in the supplemental proceedings.
    6. Judgment, § 488*—what not res adjudícala against holder of municipal bonds seeking mandamus to compel levy of supplemental assessment. The original judgment of confirmation in the special assessment proceedings is not res adjudícala as against a holder of bonds issued therein seeking a writ of mandamus to compel the city to levy a supplemental assessment to meet a deficiency.
    7. Mandamus, § 159*—when demurrer to pleas to petition against city to compel levy of supplemental assessment is properly sustained. A demurrer is properly sustained to pleas to a petition for a writ of mandamus to compel a city to levy a supplemental assessment to meet a deficiency in the original assessment which do not allege that petitioner was a party to the contract for the improvement or had any interest therein, but merely that he was a partner of the contractor and a surety on such contractor’s bond and thereby had notice of the fact that the special assessment was confirmed for an amount less than the contract price, etc.
    8. Mandamus, § 159*—when demurrer to plea to petition against city to compel levy of supplemental assessment is properly sustained. Where the petition for a writ of mandamus to compel a city to levy a supplemental assessment to meet a deficiency in a special assessment levied therefor alleges that an order was entered that the improvement had been duly made in compliance with the ordinance, a demurrer is properly sustained to a plea which attempts to charge the petitioner with the contractor’s failure and refusal to perform the contract in accordance with the requirements of a city ordinance authorizing the assessment proceedings.
    9. Municipal corporations, § 396

      —conclusiveness of judgment approving acceptance of local improvement. A judgment of the County Court approving the acceptance by a city of a local improvement is conclusive that the work has been done in substantial compliance with the orditiance, and its conclusive effect cannot be nullified by the admission of the parties, in their pleadings or otherwise, that the work was not so done.
    10. Mandamus, § 117*—when petition against city to compel levy of supplemental assessment cannot be defended on ground of laches. On a petition by a holder of special assessment bonds of a city for a writ of mandamus to compel the city to levy a supplemental assessment to meet a deficiency in the original assessment, it was held that the defense of laches was not available where it appeared that the proceeding was instituted in March, 1918, that the petitioner acquired the bonds in 1909, recovered judgments thereon at various times against the city, and the city had paid interest on the bonds as late as 1915 and had in other ways recognized their validity.
    11. Municipal corporations, § 1221*—tohat statute of limitations applies to special assessment bonds. Special assessment bonds issued by a city are written contracts and are subject to the 10-year statute of limitations.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at tlie March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Samuel K. Markman, for appellant.
    G-eorge L. Schein and John A. Barnes, for appellee; Daniel S. Wentworth .and David B. Maloney, of counsel.

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

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

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

   Mr. Justice Dever

delivered the opinion of the court.

In á petition filed in the Superior Court of Cook county the petitioner alleged that he is an innocent purchaser and holder for value of certain unpaid special assessment bonds issued by the City of West Hammond in anticipation of the collection of a certain special assessment described as special assessment West Hammond No. 23.

In the year 1909 petitioner purchased bonds of the City of West Hammond aggregating $34,000 in amount. These bonds matured in the years 1912, 1913 and 1914. On March 22, 1918, the petitioner prayed for a writ of mandamus against the City of West Hammond and certain of its officials to compel the City Board of Local Improvements to file an estimate of the amount of an alleged deficiency in special assessment No. 23 and to compel the city by its proper officials to cause a supplemental assessment or assessments to be levied until a sufficient sum was realized to pay the full amount due for costs and expenses incurred in making the improvements. A demurrer filed to the petition was overruled and the respondents thereupon filed six pleas. A demurrer was filed to all of the pleas and was sustained to all of them except one, which charged that the petitioner was guilty of laches in urging his claim against the respondents. On a hearing of the cause the trial court found that there was due petitioner on unpaid bonds the sum of $9,295.71, and he was granted the relief prayed for in his petition. Respondents seek by this appeal to reverse this judgment.

It is argued that, the petition failed to allege the material facts necessary to support the findings and judgment in favor of the petitioner; that certain of the allegations in the petition to the effect that “an assessment roll was duly filed,” that “a commissioner was duly appointed,” that “publication duly made,” and other allegations of somewhat similar form were insufficient, being mere conclusions of the pleader. We think these allegations were sufficient. It is, of course, true that the petitioner was required to show by his petition that he was clearly entitled to the relief which lie prayed for. His claim for relief is based upon the allegation that he is an innocent holder for value of certain special assessment bonds of the City of West Hammond. If the allegations quoted above be true, then so far as they are concerned he was entitled to relief. It should be kept in mind that the issues here do not arise between a property owner, whose property is to be assessed, and the respondents. In the present case it was sufficient to allege that the proceedings which resulted in a confirmation of speciál assessment No. 23 were in every respect regular and in conformity with the law. The petitioner was not required to state evidentiary facts, nor do we believe that the law required him to allege in his petition every step and detail of the special assessment proceedings and the acts done therein which resulte^ in the issuance of bonds for the payment of the costs and expenses of the public improvement which was provided for by the original assessment.

In People v. Powell, 274 Ill. 222, the Supreme Court held that a petition for mandamus is sufficient if everything necessary to create a duty which the relator asks to have performed is either expressly averred or may be fairly implied from express allegations.

And so with reference to the contention that the petition was insufficient wherein it alleged that the Board of Local Improvements “filed in said cause its certificate and petition as to the completed work, notice of which was duly published and affidavit thereof filed in said cause, and a rule duly entered to file objections therein and thereto, and objections being filed, the said objections were duly set down for a hearing and duly disposed of on or about February 3, 1912,” and “that an order Was duly entered finding the facts stated in said certificate of completed work to be true and correct, and that said improvement had been duly made in substantial compliance with the ordinance in said matter, * *- *—all of which legal steps were in due conformity to said Local Improvements Act.” This part of the petition does not state that the certificate referred to had been filed within 30 days after the completion of the improvement as required by section 84 of the Local Improvements Act (J. & A. ft 1477). We think the petition in this particular was not defective.

A general demurrer was filed to the petition, which was overruled. Defendant did not elect to stand by the demurrer, but filed special pleas, to each of which a demurrer was filed, and this demurrer was carried back, we think erroneously, to the petition.

The decisions of the Supreme Court of this State are unanimous in holding that where a demurrer to a petition has been overruled a demurrer to pleas cannot be carried back to the petition. Town of Scott v. Artman, 237 Ill. 394, 399; People v. Powell, 274 Ill. 222. It is our opinion that the petition was not insufficient. In the case of Case v. City of Sullivan, 222 Ill. 56, relied upon by respondents, the relator failed to allege in his petition for a writ of mandamus to compel a respondent to issue improvement bonds, that a certificate had been filed by the Board of Local Improvements in the court in which the assessment had been confirmed within 30 days after the final completion and acceptance of the work or at any other time as required by section 84 of the Local Improvements Act (J. & A. ft 1477). In that case it was sought to compel the city to issue bonds to pay for the improvement. It appears here, however, that the city had in fact issued the bonds; it paid interest due thereon as late as the year 1915, and had in other ways recognized their validity; and, further, the petition here alleges that the required certificate was in fact filed; that the improvement work was completed and that the unpaid bonds were issued to pay therefor.

It is urged that the trial court erred in sustaining the demurrer to respondents’ pleas. The first of these pleas alleged that in special assessment No. 23 in the County Court of Cook county it was found that all the property assessed would not be benefited more than it was assessed. Section 59 of the Local Improvements Act (J. & A. 1449) gives the Board of Local Improvements power and makes it its duty, where it appears to the satisfaction of the board that a first assessment was insufficient to pay the costs and expenses of an improvement intended to be paid fdr by an original assessment, to make and file an estimate for the amount of the deficiency and to provide for supplemental assessments.

We do not think that the allegation of the plea that the judgment in the original proceedings showed that the property affected by the assessment “would have benefited by said improvement no more than the amount against it,” is available to the respondents. Whether the defense could be availed of by property owners, sought to be assessed in supplementary proceedings, we need not determine in this, a collateral proceeding to compel the respondents to take necessary steps to provide for a full payment for the improvement work of which the City of West Hammond has presumably received the benefit.

We are inclined to the view that under section 59 of the Act (J. & A. 1449) the defense sought to be made by the plea is not available to the respondents and can only be presented, if at all, in the trial of issues raised in supplemental proceedings. The original judgment of confirmation in the special assessment proceedings is not res judicata as against the petitioner. We think also that no error was committed in sustaining the demurrer to other pleas.

Other pleas set up the defenses that the petitioner was not entitled to the writ prayed for, for the reason that he was a partner of the contractor who performed the work for respondent city; that he was a surety on the bond furnished by the contractor for the faithful performance of the contract, and that thereby petitioner had notice of the fact that the alleged special assessment proceeding was confirmed for an amount less than the contract price, etc. These pleas did not state good defenses. It is not alleged therein that petitioner was a party to the contract, nor that he had any interest therein. And so also with reference to the plea in which it is attempted, in effect, to charge petitioner with an alleged failure and refusal on the part of the contractor to perform the contract in accordance With the requirements of a city ordinance which authorized the assessment proceedings. It was alleged in the petition that

“An order was duly entered in said cause finding the facts stated in said certificate of completed work to be true and correct and that said improvement had been duly made in substantial compliance with the ordinance,” etc.

In Martin v. McCall, 247 Ill. 484, the Supreme Court held that a judgment of the County Court approving the acceptance by a city of a local improvement was conclusive that the work had been done in substantial compliance with the ordinance and that the conclusive effect to be given to such judgment could not be nullified by the admission of the parties, in their pleadings or otherwise, that the improvement had not been constructed in substantial compliance with the ordinance.

As to the plea which sets up rthe defense of laches, we are not convinced that the trial judge erred in finding against the contention of respondents. The petitioner acquired the bonds in the year 1909. The uncontradicted evidence shows that he has recovered judgments thereon at different times against the City of West Hammond for approximately $25,000 and that there was due petitioner at the time of the hearing, if it be assumed that the bonds are valid, the sum of $9,271.09. The City of West Hammond paid interest on the bonds as late as the year 1915, and other evidence indicates that the city and its officials had in other ways recognized their validity. The bonds constituted written contracts, hence the 10-year statutory limitation period had not expired when the action was brought.

The judgment of the Superior Court is affirmed.

Affirmed.