text:
    Claude Benjamin, Appellee, v. Bankers’ Union of the World, Appellant.
    Gen. No. 16,084.
    1. Covenant—when action of lies. The action of covenant may be brought by a beneficiary to recover on a benefit certificate under seal.
    2. Pleading—amendment of verification. It is within the discretion of the trial court to deny a motion to amend an affidavit filed to verify a plea.
    3. Insurance—change in by-laws. Where the by-laws are made a part of the contract of insurance, the time stated in them for the payment of monthly dues cannot be changed without the specific consent of the assured so as to place him in default on failure to conform to the more drastic provisions of the amendment,
    4. Pleading—allegations not denied directly are admitted. Pleas to a declaration alleging waiver of proof of death of assured on the ground that defendants refused to give blanks for such proof and declared that they were not liable in any event admit the allegation of waiver where they allege only, that the constitution requires the Board of Directors to pass on death claims and that such board did not refuse to give blanks and did not declare that the defendants were not liable in any event; and that under the policy proofs of death must be made to the Supreme Lodge and were not so made.

      5. Appeals and errors—waiver. Though no cross-error is assigned by appellee to the refusal of an instruction to the effect that insured was not bound by a change in the by-laws of the insurer as to forfeiture on nonpayment of premiums, such fact is not a ground for reversal of a judgment against insured, where the entire defense was based on such a default in premiums and the Appellate Court takes the same view of the law as is stated in the refused instruction.
    6. Insurance—mortality tables. Where a certificate of insurance provides for an abatement from its face when the member shall have died without having lived out his expectancy according to the “American Experience Tables of Mortality,” the title page and a portion of another page of a book purporting to show the expectancy of life at the age of the member is properly excluded from evidence in an action on the policy, where it is not shown that the pages were from the “American Experience Tables of Mortality,” or were a correct transcript thereof.
    Appeal from the Circuit Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 7, 1912.
    John W. Burdette, for appellant.
    Samuel B. King and Jule F. Brower, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

In this case there are 75 assignments of error, 5 being for the overruling of different demurrers interposed by the defendant at various stages of the pleadings, 5 for the sustaining of different demurrers interposed by the plaintiff in the pleadings, 1 for overruling motion for a new trial, 1 for overruling motion in arrest of judgment, 1 for entering judgment against the defendant, 1 for denying motion for leave to file amended affidavit verifying a plea of non est factum, 4 for refusing to give a peremptory instruction for defendant and denying motion for such instructions, 2 for admitting the instrument in evidence on which the suit is based, 41 for other rulings on evidence (exclusion and admission), 5 for giving erroneous instructions and 9 for refusing tendered instructions other than the peremptory one.

The pleadings are exceedingly involved and contain on both sides technical errors in pleading, being circular, argumentative, indefinite and with departures, duplicities and immaterial issues. They include a declaration (in two counts), 6 pleas, 15 replications, 15 rejoinders, 18 surrejoinders, 9 rebutters and 16 demurrers. This is, of course, exclusive of similiters or joinders and of many demurrers after the sustaining of which, leave to amend the pleading demurred to was taken and- availed of. There were not 80 separate documents filed in this maze of pleadings, but it would have been easier .to analyze the issues if there had been, for in an attempt to condense them in the later stages of the pleading, the parties rejoined, surrejoined, rebutted and demurred to several prior pleadings together selected as in their opinion involving the same issue. The pleadings thus resemble a very much tangled and knotted ball of twine, which it is almost impossible to unravel. The case might well serve for an argument for a reformed system of pleading, for the facts and the respective claims of the parties are very simple.

The plaintiff was the beneficiary named in the following certificate of membership in the Bankers Union of The World:

“No. 27531; Class F; $1,000.00; Age 51; B. U. W. The Bankers Union of the World, Omaha, Nebraska, U. S. of America.

“This certifies that Emma Gr. Benjamin, having complied with all of the requirements of the Order, and in consideration of the payments of the premium and fees necessary to be paid in advance herein, is a member of Chicago Lodge No. 779, Bankers Union of the World, located at Chicago, in the State of Illinois, and is entitled to all of the rights, privileges and benefits of membership therein. That upon receipt by the Supreme Lodge at its office in the City of Omaha Nebraska, of satisfactory proofs of the death of said member, and within ninety days thereafter, there will be paid the beneficiary herein, Claude Benjamin, related to the said member as son, if then living, otherwise to the legal heirs of the said member, upon delivery of this policy the sum of one thousand dollars. That upon receipt of satisfactory proofs thereof, and within ninety days thereafter, the Supreme Lodge will pay to the said member, if entitled thereto, such additional benefits as are recited at length on the reverse side hereof. This policy is issued to and accepted by the holder hereof upon the terms and subject to the conditions set forth in the Constitution and Bylaws of this Union, and subject to the conditions and stipulations on the reverse side hereof, all of which are hereby made a part of this contract, as fully as if they were recited at length over the signature hereto affixed. In witness whereof the Bankers Union of the World has caused to be affixed hereto the signatures of its Supreme President and its Supreme Secretary at its office in the City of Omaha, Nebraska, 10th day of Sept., 1901. Member accepted and Policy delivered this.....day of....., by Subordinate Lodge No. (Seal of the Bankers Union of the World, Supreme Lodge B. U. W. Nebraska, Omaha). Signed Frank J. Rost, President. Signed E. C. Spinney Supreme President .................... Secretary. Signed M. Burdock, Acting Supreme Secretary.”

Endorsed on the reverse side of the foregoing, among other, stipulations, appears the following:

“Death Benefit. Within ninety days after receipt and approval of satisfactory proof of the death of the said member there shall be paid to the beneficiary named herein if living at the time of the death of the member, if not, then to the legal heirs of the said member aforesaid such balance, if any, of the amount payable under this policy, as may remain unpaid to the member, payable at the Supreme Office of the Order in the City of Omaha, Nebraska, upon the surrender and cancellation of this Policy. _ Should said member die before having lived out his expectancy of life, based on his age at entry, according to the American Experience Tables of Mortality, there shall be deducted from the Death Benefit hereunder a sum equal to the amount of one payment (at the rate paid by the member) for each month of the unexpired period of such life expectancy. Accident and disability benefits payable hereunder shall be subject to proportionate deductions. All deductions, as provided above, shall remain in the Benefit Fund, in accordance with the Constitution and By-laws of the Order."

Emma G. Benjamin died on the 13th day of October, 1904.

The defendant not having paid the plaintiff the $1,000 he began suit in the County Court of Cook County in “ covenant" Nov. 3, 1904, and on the verdict of a jury recovered judgment against the defendant for $1,000 on May 8, 1909.

In his declaration the plaintiff alleged that he had requested blanks from the defendant to make proofs of death, and the defendant had refused, saying it was not liable, and had thereby waived such proofs.

The defendant says that the suit of the plaintiff must fail because brought in covenant, and argues that assumpsit only will lie; says the seal on the certificate is surplusage, and the attestation clause gives no authority to attach it, and that the beneficiary can not recover in covenant in any event, 1st, because there was no covenant made with him, and, 2nd, because no covenant with him is averred in the declaration.

This defense, defendant says, was good on the motion in arrest of judgment, and affects also an instruction offered and refused.

The plaintiff says that covenant will lie; that there is an implication in the certificate of a contract with the plaintiff. - These contentions may be considered as raising the first question in this case. We may dispose of it at once by saying that we sustain the position of the plaintiff therein. We think that the argument in its favor is sound and sustained by the reasoning of the Supreme Court in Hartford Ins. Co. v. Olcott, 97 Ill. 439. This court tentatively expressed itself in the same general sense in Huebner v. Metropolitan Life Ins. Co., 140 Ill. App. 282.

The defendant filed pleas setting up its further defenses. These six pleas, after amendment, set up the defenses following:

The first plea is, that the policy is not its deed. This it attempted to verify by affidavit of the President of the Association, which would have put the plaintiff to proof of the execution. But the jurat is before a notary public of Nebraska, without any certificate that such notary had power to administer oaths. The court ruled on this—following Smith v. Lyons, 80 Ill. 600— that there was no affidavit, and the plaintiff was not obliged to prove execution. The defendant apparently does not claim the affidavit or jurat is good, but at the trial proposed to “amend” the affidavit, which the court refused it permission to do, as not under the circumstances “in furtherance of justice,” and this ruling is complained of, and may be said to raise the second question in the case. In this matter also we agree with the position of the plaintiff and the ruling of the trial court. The court, in our opinion, properly denied the motion to “amend” the affidavit. We do not understand exactly what “amending” an affidavit may mean, but even if the motion is to be construed as one for leave to file a new affidavit, it was fairly within the discretion of the trial court to deny it.

The second plea set up that the policy was subject to the by-laws of the defendant, and that from the date of the policy, Sept. 10,1901, to October 13, 1904, being the date of death, there was a by-law which made all the monthly dues from members payable in advance on the 1st day of the month and automatically suspending a member who was in default and making his policy void, and that when Emma Gr. Benjamin died she was in default for $1.40 due on October 1,1904.

The third plea set up the same thing, except that the amount due is alleged to be $1.85.

On these pleas the pleadings ran to great length and complexity.

The facts seem to be as shown by the evidence, that the by-law in question requiring payment in advance was not in force on September 10, 1901, but was adopted in 1904. The plaintiff claims that under the terms of the certificate an amendment to the by-laws, or a new by-law made after the date of the certificate, does not affect it. Under the by-laws as they existed in 1901 the insured was not in default on October 13, 1904, as she had the month of October to pay in.

The court in instructing the jury took the view of defendant that the certificate was subject to amendments or changes made in the by-laws at any time before October 13, 1904; but plaintiff insists that it was not, and also claims that the defendant having falsely pleaded the by-laws as in force Sept. 10, 1901, and that having been traversed by him, no subsequently passed by-law was pleaded or could be considered. The question whether the by-law in the terms pleaded, having been passed in 1904, could affect this policy may be considered the third question in the case. If it should be decided in favor of the plaintiff, it leaves the defendant no defense on these pleas 2 and 3, and the further pleadings growing out of them may be disregarded.

If it should be decided in favor of the defendant, however, as held by the court below, other questions arise from the answers thereto made by the plaintiff, which are the subject of the subsequent pleadings.

Thus, the law of Nebraska requires that amendments to by-laws of an association of this kind to be valid must be filed in the office of the Auditor of Public Accounts of the State of Nebraska. Issues were made whether the by-law in question was an amendment and whether it was filed or not in the Auditor’s office before October 13,1904; and the court by its instructions, while holding that the by-law whenever passed was binding on the insured, if valid, held that default by the insured under it, even if not waived, would not be a defense or work a forfeiture if the jury found that the by-law was adopted by way of amendment to its by-laws and was not filed with the Auditor of Public Accounts prior to the 13th day of October, 1904 (the date of the death). Questions Nos. 4 and 5 therefore may be considered to be: Was this by-law enacted by way of amendment? And was it filed with the Auditor of Public Accounts of Nebraska prior to October 13, 1904? Or at least, should we disturb the implications of the verdict of the jury on these points?

Further, it was claimed by the plaintiff and set up in the pleadings, that the directors who adopted this bylaw were usurpers and had been so adjudged by the Supreme Court of Nebraska, and that in consequence the by-law could not be valid; but the record of the Supreme Court was excluded when offered’ by the plaintiff, and although the defendant complains of the exclusion of certain evidence bearing on it, it admits that as the record was excluded the effect of any adverse ruling to it on the subject was neutralized, but says that ‘ ‘ Should a second trial be ordered, the question would become material.” Questions, however, on the pleadings and rulings on evidence arising from this contention can hardly be considered as existing in this case.

But under these pleas 2 and 3 questions concerning the alleged waiver of the suspension or forfeiture provided for by the by-law were raised on subsequent pleadings, which pleadings were carried to unnecessary length. The essential point made by the plaintiff in this branch of the case was that the defendant had on divers occasions received dues from the insured after they became due without insisting on a forfeiture, and thus had led the insured by its course of conduct to believe that her policy would not be forfeited by delay, and waived the by-law. The defendant claims that there is no evidence that the insured ever paid anything after she became delinquent, and if the amended or changed by-law is held to affect the policy, this question of fact may be considered the sixth question in the case.

But further, the defendant claims that under another by-law found on page 25 of the abstract, it is expressly provided that in accepting and receipting for any moneys from suspended members, the secretaries of subordinate lodges are acting merely as agents for the Supreme Lodge (the defendant here) to obtain reinstatement, and that such secretaries must make a separate report of such payment to the Supreme Lodge, giving date and amount and name; that if any delinquent dues were paid by the insured in this ease, they were received by the Secretary of a subordinate lodge, who did not make any such report to the Supreme Lodge; that the Supreme Lodge had no knowledge of any such payment of delinquent dues, and therefore cannot be held to have waived anything. The court held in instruction 3, given at request of plaintiff, that if the defendant had received delinquent dues from the insured without claim or forfeiture, and that such conduct misled the insured, etc., the defendant had waived the right of forfeiture, if it existed. It refused instructions which the defendant tendered to the effect that the defendant could limit and had limited the powers of the local lodge as its agent, so that unless the Supreme Lodge had knowledge of the receipt of prior delinquent dues without claim of forfeiture, it had not waived the forfeiture on October 1, 1904, because of such receipt by the local lodge. Taken together, as related to the pleadings, the evidence and the instructions in the case, question 7 in the cause might seem to be this (were it decided that the insured was delinquent on the date of her death and had previously paid dues when delinquent, which had been received by the Secretary of the local lodge without protest): “Did, under the bylaws of the Union and the law of this State, the receipt of such dues by the local secretary, under the facts proven, constitute a waiver by the defendant of the right to claim a forfeiture in this case, and did the court rule correctly on the evidence and instructions about this matter?”

It is not necessary for us to go into the question of the rulings on the pleadings by which the question was raised. The view of the court can be seen from the instructions and rulings on evidence.

The fourth plea was framed to meet the averments of the declaration excusing the proofs of death. The declaration says the defendant in answer to a request of the plaintiff for blanks for proofs refused to give them, declaring that the defendant was not. liable in any event. The plea says that among the terms of the constitution which were conditions of the policy was one that the Board of Directors should pass on death claims, and that the Board of Directors did not refuse to give blanks or say that the defendant was not in any event liable. To this the plaintiff demurred generally and the demurrer was sustained; the court taking the view that the averment of the declaration that the defendant refused blanks and refused to pay, and thereby waived the proofs, was not met by the statement of the plea that the Directors have not done so.

The fifth plea merely set up that under the policy proofs of death must be made to the Supreme Lodge and were not so made. A demurrer was sustained to this plea also.

The court held that it did not meet the allegation that the defendant had waived proofs, and therefore admitted said allegation and was no defense. The court therefore instructed the jury that it was not necessary for plaintiff to prove the death or the allegation that defendant had waived the requirements respecting proofs, “because the allegations made by the plaintiff upon those points stand admitted by the pleadings.” Whether this view of the fourth and fifth pleas is correct may be, therefore, considered question 8 in the cause.

The sixth plea is of the avoidance of the policy by the default of the insured on October 1, 1904, but alleges in addition to the allegations of the 2nd and 3rd pleas that the application provides that neglect to make any payments when due, unless extension had been made in writing by the Supreme President or Secretary, shall make the policy void. The questions raised by the pleadings relating to and subsequent to this sixth plea are the same as those mentioned under the second and third pleas, and do not need individual mention. If the by-law is held not to affect this policy or certificate, there was no default and no further question under this plea. If it should not be so held, the questions are the same as those under Pleas 2 and 3.

There are many particular points raised in the assignments of error on the admission and exclusion of offered testimony and on the instructions given and refused, but they can hardly be considered independent questions in the case. One question, however, on the .admission of evidence, which may be noted as question 9, is of great importance.

The defendant claimed that if liable at all, it was liable according to the terms of the certificate only for $1,000, less a certain sum, to be calculated on the basis of the-following clause in the printing on the reverse of the certificate: h

“Should said member die before having lived out his expectancy of life, based on his age at entry according to the American Experience Table of Mortality, there shall be deducted from the Death Benefit hereunder a sum equal to the amount of one payment at the rate paid by the member for each month of the unexpired period of such life expectancy.”

To prove that there was a deduction due under this provision, the defendant offered in evidence a certain publication. It was excluded by the court (on various grounds, as the defendant says in his argument), and the court having excluded it instructed the jury that if the plaintiff recovered his damages must be $1,000, less such arrearages as might be due in the payment of premiums. The question of whether this exclusion and this instruction as to damages were correct is argued by the respective parties in their briefs.

The actual primary questions in this case seem to us only nine in any view. All others are subordinate. But these nine questions, on the first two of which we have already expressed our views, are reduced, in our opinion, to five by a view of the matter which, although it did not apparently commend itself to the court below, seems quite plain to us. It is involved in our answer to the third question recited in the above analysis, viz: Did the by-law passed in 1904 affect the policy in question here, issued in September, 1901, so as to place the assured in default because the advance payment of premium for October, 1904, was not made before her death? We do not think it did. The express terms of the policy or “certificate of membership” are:

“This policy is issued to and accepted by the holder hereof upon the terms and subject to the conditions set forth in the Constitution and By-laws of this Union, and subject to the conditions and stipulations on the reverse side hereof, all of which are hereby made a part of this contract, as fully as if they were recited at length over the signature hereto affixed.”

This was as binding on the Association as it was on the member, and we do not think that in so important a matter as the time given by the by-laws then in existence for the payment of monthly dues a change could be made without the specific consent of the assured, which should place her in default because she did not conform to the more drastic provisions of the amendment.

We think that this view is justified by the reasoning of the opinions of the Supreme Court in Covenant Mutual Life Association v. Kentner, 188 Ill. 431, and Peterson v. Gibson, 191 Ill. 365.

This view on our part renders it unnecessary for us to pass on the questions we have listed as 4, 5, 6 and 7.

It is true that an instruction asked hy the plaintiff stating the law on this point as we hold it was refused by the trial court and no cross-error has been assigned but this does not render it the less obvious that if there was no default in the payment of premiums there was no defense made which should work a reversal of this judgment under pleas based entirely on the allegation of such default.

The answer to the eighth question is not difficult. The trial court was plainly right in sustaining the demurrer to the two pleas and in holding the allegation of a waiver by the defendant of proofs of death admitted by the pleadings.

The ninth question concerns, as before stated, the exclusion from evidence of the title page and a portion of another page of a certain book purporting to show the expectancy of life at 51, the age at which the assured in this case became a member of the society and obtained the certificate.

The essential part of the title page offered was, as it appears in the Transcript of the Becord:

“Tables for ascertaining the Present Value of Vested and Contingent Bights of Dower, Curtesy, Annuities and of other Life Estates, Damages for Death or Injury by Wrongful Act, Negligence or Default, based chiefly upon the Carlisle Table of Mortality computed and compiled by Florien Giauque, A. M. * * * and Henry B. McClure, A. M., members of the Cincinnati Bar.
_Cincinnati.
Robert Clarke & Co. 1894.
Copyright 1882
By Robert Clarke & Co.
Copyright 1894
By Robert Clarke & Co,”

The further matter in this book offered in evidence was a portion of the 191st page of the same, as follows :

“Table.
Table of Expectancy of Life as shown by the following tables of mortality.
Explanation. The names at the heads of the respective columns are the names of various tables of mortality, that is the Carlisle Table of Mortality, the Combined Experience Table of Mortality, etc. For further explanation see Pages 1-8-185-190 and preface this work.
Age.
American Experience.
51
20.91
54
18.09”

In connection with this the defendant offered to show by the testimony of the President of the Order that “upon a computation of the deduction from the face of the certificate of membership provided for by the condition on the reverse of the policy in case the member dies before having lived out the expectancy of life at the time of death, that the unexpired portion of the life expectancy of the assured in the certificate in question was 18.09 years, and that the amount due on this policy or certificate of membership would be only $390.95.

This printed matter and this offer were both excluded by the court on the grounds (a) that the declaration in covenant alleging that the defendant would pay to the plaintiff the sum of one thousand dollars, and the defendant not having specially pleaded in denial of this, no evidence was admissible to show the covenant to be for a less sum; and (b) that the essential part of the evidence offered, without which the rest would be irrelevant, was a mere printed statement in a book not shown to be standard, or authorized, and not verified in any manner to state the truth.

The condition found on the back of the policy or certificate is certainly a peculiar one, reducing it in effect from insurance to a savings deposit, and it was not unreasonable to hold that it should be strictly proved if it was to be held valid.

We do not feel called on to pass definitely on the soundness of ground (a), for we think the point (b) was well taken. We do not think that the matter offered was shown to be from, or that there was any sufficient offer to prove that it was from, the “American Experience Tables of Mortality” specified in the certificate, or that it was a correct transcript thereof. We do not feel justified in holding the trial court was wrong in its exclusion. Without it there was no basis for the proposed deduction shown, and the further evidence and the instruction on the subject tendered by the defendant were properly refused.

The judgment of the County Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Jacob Doppelt, Appellee, v. David Geliebter, Samuel Woskow and Samuel Rusnak, Appellants.
    Gen. No. 16,404.
    1. Vendor and purchases—failure to record United States Patent in County does not matte title defective. It is no objection to the title of a vendor of property in Cook county that a patent from the United States for the property has not been recorded in such county.
    2. Vendor and purchaser—that incumbrance assumed is due later than time stated in contract is not a defect in title. Where a contract of sale provides that the buyer shall assume an incumbrance due in about four years, it is not a valid objection to the vendor’s title that the incumbrance is due in five years.
    3. Vendor and purchaser—when nonpayment of instalments of special assessments does not affect title. Where land is sold subject to any unpaid taxes or special assessments for improvements not yet completed, and to unpaid instalments “which fall due after —,” levied for improvements completed, the clause is to be construed as though the quoted words were omitted, and an objection to the title that two instalments of a special assessment have not been paid, is untenable when there is no showing that the improvement had been completed.
    4. Vendor and purchaser—what must be shown to render possession of another a defect in title. An objection stating that, a seller’s title is “subject to the rights, not shown of record, of anyone in the actual possession of the property,” not stating that any one is in possession thereof claiming any right therein, fails to state any defect in the title.
    5. Vendor and purchaser—seller not required, to furnish more than contract requires. Where a contract of sale does not provide that the seller shall furnish a survey of the land, the buyer cannot refuse to perform on the ground that a survey should be furnished.
    6. Trusts—when purchaser of trust property is not put on inquiry. That a trustee held certain property in trust for his son, and held other property in trust for the daughter of the creator of both trusts, does not put a purchaser of the property held in trust for the son on inquiry to ascertain whether the trustee had wrongfully used the money or property held in trust for the daughter for the purchase of the property held in trust for his son.
    7. Vendor and purchaser—what evidence of title need not he furnished hy the vendor. Where a vendor acquired title from a trust beneficiary whose trustee also held property in trust for the trust donor’s daughter, such vendor is not required to furnish evidence that the daughter and her heirs had no interest in the land.
    Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the March term, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed October 7, 1912.
    Rehearing denied October 21, 1912.
    Thompson, Clark & Boot and Henry Roth, for appellee; E. F. Thompson, of counsel.
    Thomas M. Headen, for appellants.
   Mr. Justice Baker

delivered the opinion of the court.

January 25, 1909, appellee, Doppelt, entered into two contracts in writing with appellant Rusnak, by one of which Doppelt agreed to buy and Rusnak to sell for $11,000 the premises 380 West North Avenue, and by the other Doppelt agreed to buy and Rusnak to sell for $8,000 the premises 694 North Paulina street in the city of Chicago. Each contract contained a provision that the purchase was subject: “to any unpaid special taxes or assessments levied for improvements not yet completed and tó unpaid instalments of special assessments which fall due after-for improvements completed;” that the buyer should “assume and pay taxes for 1908; that the buyer had paid to the seller $300 as earnest money; that the seller should furnish an abstract of title, and the buyer should within ten days after receiving the abstract deliver to the seller a memorandum in writing, stating in detail the objections made to the title, if any, and in case material defects be found in said title and so reported, then if such defects were not cured within sixty days the contracts should, at the purchaser’s option, become null and void and said earnest money returned; that said contracts and earnest money should be held by appellants Geliebter and Woskow for the mutual benefit of the parties concerned, and that if the purchaser failed to perform the contract on his part, the earnest money should be retained by the vendor as liquidated damages and the contract become null and void. The contract as to the North Avenue lot provided that the buyer should assume an incumbrance of $6,000 due in about four years with interest at five per cent; that for the Paulina street lot provided that the buyer should assume an incumbrance of $4,000 due in about four years with interest at five per cent. January 28th the checks were presented to the bank for certification by Geliebter and certified. The same day the payment of the checks was stopped by Doppelt. February 5th abstracts were delivered by the seller to the buyer for examination, which were returned February 11th with the opinions of the buyer’s solicitors. The opinions stated that in the opinion of said solicitors the title to said lots was good in Rusnak, subject to certain objections. No attempt to cure the alleged defects was made by the seller and the buyer gave notice April 17th that he elected to treat said contracts as void and demanded the return of said checks. The checks were not returned, and May 17th Geliebter and Woskow brought suit on the checks against the bank on which the checks were drawn. The bill in this case was then filed by Doppelt against the bank, Eusnak, Geliebter and Woskow and a temporary injunction issued restraining Geliebter and Woskow from further prosecuting said suit. After answer the cause was referred to a master, who by his report recommended that a decree be entered in accordance with the prayer of the bill. On the hearing the exceptions to the report were overruled and a decree entered restraining the defendants other than the bank from prosecuting said suit or transferring said checks. No relief was granted against the bank. From said decree the defendants other than the bank prosecute this appeal.

We shall consider only the question whether the written opinions of the buyer’s solicitors point out any material defects in said titles. In the opinion as to the title to the premises 380 West North Avenue, the first objection alleged is that the patent from the United States for the property in question, and other property, had not been recorded in Cook County. It was not necessary that said patent should have been so recorded. Lomax v. Lomax, 165 Ill. 431. The second objection is that the lot is subject to a trust deed for $6,000 dated June 2,1908, and payable in five years with interest at five per cent. The contract provided for the assumption of this trust deed by the buyer, and as to him it was not a defect in the title.

The third objection is as follows:

“3. Unpaid taxes and special assessments. Assessments (warrant No. 33382) for curbing, grading and paving West North Avenue, confirmed March 29, 1905, amounts on above lot, as reduced by rebate, to $101.07, payable in five annual installments. The first three installments are paid.”

Under the terms of the contract the lot was. sold subject to (1) “any unpaid special taxes or special assessments for improvements not yet completed,’’and (2) “to unpaid installments which fall due after-levied for improvements completed.” The opinion does not state that the improvement had been completed and there is no proof that it had been. The failure to insert a date in clause 2 of the provision under consideration renders the words “which fall due after-” meaningless, and the clause is to be construed as though those words were omitted and the clause read, subject “to unpaid installments levied for improvements completed.” The opinion in question fails to state an objection to the title to said lot on the ground of unpaid instalment of special assessments which Doppelt was entitled to make under the contract.

The fourth objection only states that the seller’s title is “subject to the rights, not shown of record, of any one in the actual possession of the property, and does not state that any one is in possession thereof claiming any right therein, and fails to state any defect in the title.

The fifth objection is that “a survey of the property should be furnished.” It is a sufficient answer to this objection that the contract does not provide that the seller should furnish a survey.

What has been said disposes of four of the five objections made to the title to the lot 694 North Paulina street. The first is based on an incumbrance which the contract provided the buyer should assume. The third relates to an assessment for improving Julian street, confirmed in 1898 and payable in five instalments. The contract for the purchase of this lot contains the same provisions as to special assessments as are contained in the contract for the purchase of 380 West North Avenue. The opinion does not state that the improvement had been completed. Objections four and five are the same as objections four and five in the opinion as to the other lot.

Objection two is as follows:

“2. The will of Orville M. Anderson recorded March 26, 1885, gives certain property in Kentucky to his Executor, W. George Anderson, in trust for said Executor’s eldest son when the latter shall become of age. Testator devises all the rest of his property to said Executor in trust for the use of Testator’s daughter Mary. By deed datéd March 21, 1885, and recorded March 26,1885, said executor conveys the property in question to his son Thomas Anderson. Evidence should be furnished that Testator’s said daughter Mary, or her minor heirs, have no interest in the property in question.”

The fact that W. George Anderson held certain property in trust for his son and held other property in trust for Mary Anderson, the daughter of the creator of both trusts, did not put a purchaser of the property held in trust for the son on inquiry to ascertain whether the trustee had wrongfully used the money or property held by him in trust for Mary Anderson for the purchase of the property held by him in trust for his son. A trustee is presumed to act rightfully, and in the absence of facts putting purchasers on inquiry they are not bound to presume wrongful conduct on his part. Robbins v. Moore, 129 Ill. 30.

Orville M. Anderson of Meade County, Kentucky, by his will made in 1855 devised certain property to W. George Anderson to hold the same from September 18, 1873, in trust for his eldest son, if at that time he had a son living, until such eldest son came of age, at which time the trust should cease and said property belong to such son. Thomas Anderson was the eldest son of W. George Anderson living September 18, 1873. The property in question was conveyed to W. George Anderson November 21, 1871, on the same trusts that the property devised to him in trust for the benefit of his eldest son was devised. A decree of the Circuit Court of Meade County entered at its March term, 1885, recites that Thomas Anderson became of age April 5,1884, was still living and entitled to said trust estate in fee simple. It orders said trustee and executor to convey said property to Thomas Anderson and the same was so conveyed by deed reciting that it was made pursuant to said decree. It was under this conveyance that Rusnak acquired title. The seller was not required to furnish evidence that testator’s daughter Mary or her heirs had no interest in said property.

We find in this record no fact, either averred or proved, with respect to the title of either of said lots which entitles the complainant to relief in equity. Appellee, without any sufficient excuse, failed to perform either contract on his part, and in that case, by the express terms of the contracts, he was to forfeit the $600 which he paid as liquidated damages.

The decree will be reversed and the cause remanded with directions to dismiss the bill for want of equity.

Reversed cmd remanded with directions.


author: Mr. Justice Brown

text:
    The People of the State of Illinois, Defendant in Error, v. William H. Flury, Plaintiff in Error.
    Gen. No. 16,427.
    1. Husband and wife—wife abandonment. A proceeding under the act approved May 13, 1903, providing that one who, without cause, abandons and neglects and refuses to provide for his wife or minor children, is guilty of a misdemeanor and liable to fine and imprisonment, is criminal, notwithstanding the court has power to direct the fine to be paid to the wife.
    2. Conflict of laws—where abandonment of wife takes place. A husband who left his wife in New York and came to Illinois cannot be prosecuted under the act approved May 13, 1903, making abandonment and failure to provide for the wife or children, without cause, punishable criminally, since the offense was committed in New York, and not in this state.
    3. Husband and wife—abandonment not continuing offense. Under the Act approved May 13, 1903, making the offense of abandonment coupled with neglect and refusal to provide for the wife or minor children punishable criminally, the offense is not a continuing one.
    4. Husband and wife—what is not abandonment. Where a husband abandoned his wife in New York and came to Illinois, and subsequently, on demand in Illinois, refused to resume marital relations, he is not punishable under the Act approved May 13, 1903, relating to abandonment and refusal to provide for the wife or minor children.
    Prosecution for wife abandonment. Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed October 7, 1912.
    Alonzo M. Guffen, for plaintiff in error.
    John E. W. Wayman, for defendant in error; George J. Crane, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in error, William H. Flury, was tried before the Municipal Court sitting without a jury—he having formally waived a jury trial—for wife abandonment. The prosecution was under the Act approved May 13, 1903, the essential parts of which are as follows:

“Be it enacted, etc. That every person who shall, without good cause, abandon his wife and neglect and refuse to maintain and provide for her, or who shall abandon his or her minor child or children under the age of twelve years in destitute or necessitous circumstances and wilfully neglect or refuse to maintain and provide for such child or children, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one hundred dollars or more than five hundred dollars, or by imprisonment,” etc., “* * * and should a fine be imposed, it may be directed by the court to be paid in whole or in part to the wife.” * * *

The information charged that William H. Flury “heretofore, to-wit, on the 14th day of December, A. D. 1909, at the City of Chicago in said County of Cook in the State of Illinois aforesaid, being then and there the lawful husband of Permelia Flury, and she, the said Permelia Flury, then and there being the lawful wife of him, the said William H. Flury, and they, the said Permelia Flury and said William H. Flury having before and up to said time lived and cohabited together as husband and wife, he, the said William H. Flury, did then and there wrongfully and unlawfully and without good cause abandon and neglect and refuse to maintain and provide for his said wife, the said Permelia Flury, contrary to the statute in such case made and provided and against the peace and dignity of the people of the State of Illinois.”

The facts developed at the trial, so far as it is necessary for us to state them in the view we take of the law, were that the plaintiff in error was living with his wife and daughter in Brooklyn, New York, before and on November 15,1903. On that day, in consequence of marital differences not necessary to specify, he left his wife and daughter and came away from the State of New York. Mrs. Flury took possession of a store which the defendant had in Brooklyn, and after managing it for a time sold it. She also, whether with or without the voluntary action of her husband, obtained the proceeds of other property to which he fell heir after the desertion. The daughter died in 1908. Before her death the plaintiff in error occasionally sent her money and after her death contributed to the funeral expenses. But he has never lived with his wife after leaving her in Brooklyn in 1903.

On December 14, 1909, the plaintiff in error was living and employed in Chicago. Mrs. Flury came to Chicago on that day and sought an interview with her husband and made a demand that he should live with her, which he refused to do.

The finding of the court was that the defendant was guilty in manner and form as charged in the information, and the judgment was that he pay a fine of $364 in weekly instalments of $7 per week for one year for the use of his wife.

To reverse this judgment Flury sued out this writ of error. We think it must be reversed. It is to be borne in mind that notwithstanding the form of judgment which the statute authorizes, and which was used in this case, the proceeding is not a civil one brought by the wife, hut a criminal one for an offense against the peace and dignity of the people of the State of Illinois.

But if there were such an offense in this case as the statute under which the prosecution was brought defines—an abandonment coupled with neglect and refusal to maintain and provide for a wife without good cause—it was not committed in this state, was not against the peace and dignity of this state and cannot he successfully prosecuted in this state. The abandonment or desertion which is of the gist of the offense took place in the State of New York. It was not a continning offense. In the language of Judge Gilbert of the Supreme Court of New York on a similar statute, “The offense is complete when the abandonment takes place, and it is only one offense whether the separation be long or short.” Bayne v. The People, 14 Hun, 181.

Nor is a constructive abandonment, such as it is contended that the refusal on December 14,1909, to resume marital relations constituted, in our opinion the offense defined by the statute.

We note by the transcript of the record that the learned judge who tried the case below was of a contrary opinion and expressed his belief that cases of authority in other states could be found to sustain the position that “wife abandonment was a continuing offense taking place wherever the wife makes a demand on her husband to .live with her as husband and wife, and that at that time a new offense takes place as though the original abandonment had taken place.”

We have made a search, without success, for cases holding this, since there appears no decision of our own Supreme Court to control us. But we find numerous decisions on similar statutes which hold expressly or by implication the contrary.

Besides Bayne v. People, 14 Hun, 181, previously alluded to, there may be cited: Milbourne v. State, 161 Ind. 364; People v. Neyer, 79 N. Y. Supp. 367; People v. Allen, 153 N. Y. 629; Jemmerson v. The State, 80 Ga. 111; State v. Justus, 85 Minn. 114; State v. Shuey, 101 Mo. App. 438; People v. Crouse, 83 N. Y. Supp. 812. And to the same effect is the summing up of the authorities in 21 Cyc. 1613.

Language used by Judge Paxson of Pennsylvania in Commonwealth v. Bailey, 2 Legal Gazette (Philadelphia), 394, Dec. 16, 1870, although of an inferior court is pertinent enough to quote. After stating that the scope of the Act invoked by the State in that case implied that the desertion must take place within the State, and that the commission of the offense within the State was necessary to give jurisdiction in any criminal case, he proceeds:

“Applying these views of the law to this case we are brought to the inquiry, did the defendant desert his wife within our jurisdiction. The uncontradicted evidence is that the desertion took place in Massachusetts in January, A. D. 1869. The parties have never lived together since. The wife meeting her husband in a railroad ear at Wilmington on his way to join the army in a distant territory, follows or rather accompanies him to this city, and procures his arrest while stopping over night at the Continental Hotel. He refuses to see her upon their arrival in this city, and it is argued that this amounts to a desertion here. We cannot assent to this view of the case. The desertion is a single act. It was complete in January, 1869, and was., committed out of this State. To hold that where a man deserted his wife nearly two years ago in another State, he may be arrested in any county or state in which his wife may happen to meet him in transitu, would make the way of a matrimonial transgressor hard indeed. Suppose the desertion were an indictable offense. Could the defendant be convicted for daily desertions covering two years or twenty years ? Would not the plea of autrefois convict or autrefois acquit be a flat bar to a subsequent indictment for the same desertion, no matter how long it may have been con-tinned? And if so, why should we split up this offense into as many different offenses as there are days during, the continuance of the alleged desertion?”

The judgment of the Municipal Court in this cause is reversed.

Reversed.


text:
    Max Fritzsch, Appellee, v. Clara Pritikin, Appellant.
    Gen. No. 16,429.
    1. Contracts—for electrical work. Where a contract provides for electrical work on the first story of certain premises, the contractor, on filing a bill to enforce a mechanic’s lien, cannot be charged with the cost of extending the supply wires to the premises in question.
    2. Contracts—how construed. It is the duty of the court, in construing a contract, to discover and give effect to the intention of the parties, and greater regard should be had to the clear intent than to any particular words.
    3. Contracts—what considered in construing. To determine the meaning of a contract, the facts and circumstances attending its execution should be considered, including the relations of the parties, the nature and situation of the subject-matter, and the apparent purpose of the instrument.
    4. Contracts—for basement and mason work construed. Where a contract is entered into for mason work on a building, and subsequently a contract is made for the construction of a basement, providing “center wall to be common brick instead of Rubble Stone, also that all basement piers to be omitted,” it was the intention of the parties that the walls provided for in the original contract should be extended to construct a basement, and the price agreed on included the extension.
    5. Costs—who must pay on appeal. On appeal from decrees on a bill and on a cross-bill by an intervening complainant, to enforce mechanic’s liens, where the decree on the bill is affirmed, and the decree on the cross-bill is reversed, the appellant must pay the costs of the appeal from the decree on the original bill, and the cross-complainant must pay the costs on the appeal from the decree on the cross-bill.

      Mechanic’s lien. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed October 7, 1912.
    Rehearing denied October 21, 1912.
    Parker & Hagan, for appellee.
    Simon Straus and Ira E. Straus, for appellant.
   Mr. Justice Baker

delivered the opinion of the court.

Max Fritzsch filed his bill against Clara Pritikin to enforce a mechanic’s lien on the building, 409 South Halsted street. He entered into a written contract with Mrs. Pritikin, by which he agreed to do the electrical work on the first story of said building for $175, according to certain plans, etc., which are not in the record. The Edison Company had stated that it would bring the service supply wires to 409 South Halsted street, but in fact only brought them to 411. Mrs. Pritikin had the supply wires extended from 411 to 409 at a cost to her of $40, and her contention is that she should be allowed that sum as a credit on her contract with Fritzsch.

The contract only required Fritzsch to do the electrical work “on premises known as 409 South Halsted street.” The extension of the service supply wires beyond the premises 409 was work outside of the contract and Mrs. Pritikin was not entitled to charge Fritzsch with its cost.

The decree in favor of complainant Fritzsch is affirmed.

Appellee Leafgreen obtained leave to intervene and file a cross-bill. He filed a cross-bill against Mrs. Pritikin to enforce a mechanic’s lien on the premises 409 and 411 South Halsted street. April 27, 1908, he entered into a written contract with her to. furnish material and labor for the mason work for a two-story building to be erected on said premises according to certain plans, etc., for the sum of $3,200. The mason’s specifications provided that he should excavate “one foot larger than the entire surface of the building,” that he should “dig trenches for the footings of all walls, areas and columns in basement,” that the basement walls should be 17 inches thick, built of rubble limestone and carried up to grade. Under the original contract there was to be no excavation for a basement. The south wall was to extend ten feet below the first floor; the other outside walls and the center wall only four feet, and there was to be a large number of basement piers. May 19, 1908, the parties entered into the following contract:

“Chicago, Illinois, May 19,1908.
Messrs. Leafgreen Construction Co.,
145 La Salle Street, City:
I hereby wish to authorize you to excavate the basement at 409-411 South Halsted street, 7' 4" below sidewalk, for which I agree to pay you the sum of Eleven Hundred and 00/100 Dollars. Center wall to be common brick instead of Bubble Stone, also that all basement piers to be omitted.
Yours very truly,
P. Pritikin,
For Clara Pritikin.”
“Accepted May 19, 1908.
Leafgreen Construction Co.
By B. A. Leafgreen.”

Because of the lowering of the center wall the basement piers were not required and they were omitted.

In construing a contract it is the duty of the court, where it is practicable to do so, to discover and give effect to the intention of the parties, so that the performance of the contract may be enforced according to the sense in which it was made, and greater regard is to be had to the clear intent, where ascertained, than to any particular words which may have been used in the expression of that intent. In interpreting a writing the court, in order to determine its meaning, will consider all the facts and circumstances attending its execution. Among the circumstances so considered are the relations of the parties, the nature and situation of the subject matter, and the apparent purpose of mating the instrument in question. ’ When the contract of May 19th was made there was a contract in existence between the parties, whereby Leafgreen was to do the mason work of the building to be erected on the premises 409-41Í South Halsted street. The new contract provided for the excavation for a basement under said building. By the original contract Leafgreen was required to erect the walls of the: height required by the plans. The manifest purpose of the parties in mating the second contract was to construct a basement under the building and this required the extension of the walls other than the south wall. We think that the intention of the parties was that such walls should be extended by Leaf-green and that the compensation agreed on included the extension of the walls. This view finds support in the provision that the center wall should be of brick in place of stone, and that the basement piers should be omitted. To hold that the contract did not require Leafgreen, the mason contractor, to extend the walls would be to hold that Leafgreen was only bound to carry the walls down the depth required by the original contract, and that the owner was to erect so much of the walls as was required by the second contract. This construction is not warranted even by a literal reading of the second contract, and certainly not by its plain meaning as gathered from a. consideration of the whole instrument in the light of the circumstances surrounding the parties at the time it was made and of the objects which they evidently had in view. The decree allows to Leafgreen $334.30 for rubble stone work in basement and $114.14 for brick in basement, and said sums form a part of the decree for $1,454.57 in favor of Leaf-green, from which Mrs. Pritikin appealed. The other allowances made to Leafgreen by the decree were proper, as was the allowance of credits to Mrs. Pritikin.

The decree on the cross-bill in favor of Leafgreen will be reversed and the cause remanded to the Circuit Court, with directions to that Court to disallow Leafgreen’s claims for $334.30 extras for rubble stone work in basement, and for $114.14 for brick in basement, and enter a decree in favor of Leafgreen for $984.13 with interest at five per cent from September 10, 1909.

The costs in this court on the appeal from the decree on the original bill will be paid by appellant Pritikin, and the costs on the appeal from the decree on the cross-bill will be paid by appellee Leafgreen.

Reversed cmd remanded with directions.


text:
    Richard G. Schmid, Appellee, v. C. E. Heath et al., Appellants.
    Gen. No. 16,442.
    1. Insurance—automobile. An insurance policy on an automobile providing that “loss by theft, robbery or pilferage, by persons not in the employment, service or household of the assured, is covered” covers theft by an employee of a public garagekeeper at whose garage the car was kept.
    2. Master and servant—who is servant or employee. A servant or employee is one who is employed to perform personal service.
    3. Master and servant—contractors. A contractor is one who engages to do a particular thing, and the idea of personal service is not a necessary element in the bargain.
    4. Insurance—when employee of garageheeper in service of automobile owner within policy. An employee of garagekeeper, to be in the service or employment of the assured, within the meaning of a policy covering an automobile, providing “that loss by theft, robbery or pilferage, by persons not in the employment, service or household of the assured is covered,” must be subject to the control and direction of the assured, and bound to render personal service to him.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed October 7, 1912.

      Joseph E. Paden and Oscar A. Kroff, for appellants.
    S. S. Gregory and C. H. Poppenhusen, for appellee; J. L. McNab, of counsel.
   Mr. Justice Baker

delivered the opinion( of the court.

The defendants, appellants here, issued to the plaintiff, appellee here, an insurance policy covering his automobile. Plaintiff placed his car in a public garage kept by one LiBal and paid LiBal for the care and keeping thereof eighteen dollars per month. LiBal had in his employ in the garage Harry A. Collier and Robert Cole. Collier, with the aid of another man, induced Cole, by means of a fictitious message and false statement, to leave the garage, and while he was absent Collier stole and drove away plaintiff’s car. Plaintiff brought suit on the policy, the cause was submitted to the court on an agreed statement of facts, the court gave judgment for the plaintiff and the defendants appealed.

The only question presented is whether, under the terms and conditions of the policy, the defendants are liable to plaintiff for the damages caused by the theft of his car by Collier. Leaving out the provisions which do not apply to the question here presented, the defendants by said policy insured the plaintiff “only against risks of fire, explosion, self-ignition, lightning, salvage, theft, robbery or pilferage as below,” and below in the contract it is provided that “Loss * * * by theft, robbery or pilferage by persons not in the employment, service or household of the assured is covered.” Collier was not in the household of the assured. The defendants were liable for the theft of the car by Collier unless he was in the “employment or service” of the assured within the meaning of those terms as used in the policy. It is stipulated that Collier was in the employ of LiBal. LiBal was bound only to produce or cause to be produced a certain result, and was free to dispose of his own time and personal efforts according to his pleasure without responsibility to the assured. A servant or employee is one who is employed to perform personal service; and a contractor, one who engages to do a particular thing, the idea of personal service not being a necessary element in the bargain. To be in the service or employment of the assured, within the meaning of the policy, Collier must have been subject to the control and direction of the assured and bound to render personal service to him; but he was employed, not by the assured, but by LiBal, and was not subject to the control of the assured nor bound to render to him any personal service.

We concur in the conclusion reached by the learned trial judge, that Collier was not in the employment or service of the assured, and therefore that the defendants were liable to the assured under the terms of the policy for the theft of his car by Collier.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Charles Yon, Plaintiff in Error.
    Gen. No. 16,872.
    1. Municipal court—jurisdiction where punishment is try fine and imprisonment. The decision in People v. Dada, 141 Ill. App. 557, holding that the Municipal Court, before the amendment of 1907 to the Municipal Court Act, § 3, had no jurisdiction of an offense, where the punishment must be by fine and imprisonment, is controlled by People v. Glowacki, 236 Ill. 612, which holds that such court has jurisdiction to try on information, violation of criminal laws punishable by fine or imprisonment otherwise than in the penitentiary, or by both.
    2. Municipal court—jurisdiction to try charge of pandering. The Municipal Court has jurisdiction to try on information a charge

      of pandering, though the punishment therefor is fine and imprisonment.
    3. Municipal court—what information for pandering gives jurisdiction. A prosecution by information in the Municipal Court of Chicago, for pandering, which sets forth the offense in the language of the statute, is sufficient to give jurisdiction, though the act relating to such court provides that criminal offenses must be set forth with reasonable certainty.
    4. Pandering—remedy if information not specific. Where an information in the Municipal Court of Chicago, sets forth the offense of pandering, in the language of the statute, if the defendant is unable to identify the occurrence, he has his remedy by suitable motion in the trial court.
    5. Pandering—requirements of information. An information charging pandering, need not show on its face that the court examined the person presenting it; and required other evidence, but it is sufficient if the order granting leave to file, and the endorsement on the information recite that the judge examined the information and was satisfied that there was probable cause for filing it.
    6. Pandering—hearing of evidence before filing information charging is discretionary. After the judge examines an information charging the offense of pandering, and is satisfied that there is probable cause for filing it, further examination or hearing of evidence is discretionary under the Municipal Court Act.
    Prosecution for pandering. Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed October 7, 1912.
    W. G. Anderson, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in error, Charles Ton, was prosecuted by information in the Municipal Court of Chicago for procuring by certain means recited in said information one Ruby Roser, the affiant, a female person, to then and there enter a certain place in which prostitution was then and there encouraged and allowed, the said place being then and there located in the City of Chicago, etc. The complaint was made and leave to file the information prayed by Ruby Roser in the name of the People before one of the judges of said Municipal Court on August 4, 1910. Having examined the proposed information and being satisfied by evidence heard that there was probable cause for filing the same, the judge so endorsed the same and ordered that leave be granted. Yon was arrested and held to bail, signed a formal waiver of a jury trial, and was tried by the court without a jury. The court found him guilty “in manner and form as charged in the information,” and it was “considered and adjudged by the court that said defendant, Charles Yon, is guilty of the criminal offense of Pandering on said finding of guilty.” He was sentenced to confinement at labor in the House of Correction and to pay a fine of $300. He sued out a writ of error from this court, and claims by his assignments of error that the Municipal Court had no jurisdiction of the offense because the punishment therefor is fine and imprisonment, and this court decided in People v. Dada, 141 Ill. App. 557, that in such cases the Municipal Court Act, before the amendment of section 3 in 1907, had no jurisdiction. Our decision was carefully limited, but our opinion expressed with mistaken confidence. The Supreme Court in People v. Glowacki, 236 Ill. 612, although the case was not on all fours with the Dada case, meant, we feel sure, from the language employed, to express a view of the matter different from ours. That view, so expressed, of course controls and governs ours as efficiently as if it were essential to the decision, independently of the fact that the amendment of 1907 made applicable former cases, and long acquiescence by the profession in a construction of the Constitution which the Dada case did not involve. "We can not hold good, therefore, this objection of the defendant to the jurisdiction of the court.

Another point made by the defendant is that the information is materially and substantially defective, and is therefore void. It sets forth ah offense in the language of the statute, as the defendant admits. But he contends that he was entitled to know with particularity the nature of the means used for the procurement, and the particular house of prostitution involved.

But there is nothing in the record here which shows or tends to show that he did not so know before he went to trial, or that he complained before the Municipal Court at any time of any lack of certainty or particularity in the information. As the State’s Attorney points out, “no bill of particulars was requested, no motion to quash was interposed, and no motion for a new trial or in arrest was made.”

It is true that the Act says that the information shall set forth the offense with reasonable certainty, and we consider that as a matter of policy and legal administration greater particularity in the present case would have been better; but if the defendant were in the dark or unable to identify the occurrence which gave rise to the charge, he had his remedy below by suitable motion, and did not avail himself of it. The information was sufficient to give jurisdiction.

A third point made by the defendant is that “the information does not show on its face that the Court examined the person presenting the same and required other evidence.”

There is no requirement that it should. The order, however, granting leave to file, does recite, as does the endorsement on the information, that the Judge examined the information and was satisfied that there was probable cause for filing the same. This is all that is necessary.

The further examination or hearing of evidence is discretionary under the Act. The order, however, recites an examination of the person presenting the information and the hearing of evidence.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    People of the State of Illinois, Defendant in Error, v. Albert Oldfield, Plaintiff in Error.
    Gen. No. 18,218.
    1. Husband and wife—abandonment. A verdict of guilty of a charge that defendant “wrongfully and unlawfully and without good cause” abandoned and refused to support his wife, will be sustained where the evidence, though conflicting, tends to show that he left, her against her wishes and entreaties, after an unhappy series of quarrels, and refused to return.
    2. Criminal law—remarks by prosecuting attorney. Flippant remarks and attempts at joking, by the prosecuting attorney, although out of place are not ground for reversal, where not objected to by counsel, and where the jury has not been influenced thereby.
    3. Husband and wife—prosecution for abandonment. On a prosecution of a husband for abandoning his wife without good cause, the answer filed by him to a divorce bill brought by his wife, is properly excluded from the evidence, where the same is self-serving and he is present in court and able to testify to anything contained therein.
    4. Husband and wife—prosecution for abandonment. In a prosecution for wife abandonment, a divorce bill brought by the wife is competent evidence, when offered by defendant, as showing the admissions of the complaining witness, but it is not competent when offered by the state.
    5. Criminal law—evidence. In a prosecution for wife abandonment, an offer by the defendant to admit in evidence a divorce bill, brought by the wife, does not make competent the answer thereto, to explain or contradict the bill.
    6. Criminal law—saving question for review. The Appellate Court will not pass on the question of the competency of character evidence, where no objections were raised in the trial court, and where the opposing counsel cross-examined some of the character witnesses.
    7. Husband and wife—abandonment. In a prosecution for wife abandonment, a judgment ordering the husband to pay his wife eight dollars a week for one year, is not excessive.
    Prosecution for wife abandonment. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.

      P. J. O’Shea, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

August 30, 1911, an information was filed in the Municipal Court of Chicago against the plaintiff in error (defendant below), Albert Oldfield, charging him with having in January, 1911, “wrongfully and unlawfully and without good cause” abandoned and neglected and refused to maintain and provide for his wife, Georgia W. Oldfield, contrary to the statute in such case made and provided.

The cause was submitted to a jury, who found the defendant guilty. A motion for a new trial was made by him and denied by the court, who thereupon “having heard the evidence introduced, on the trial touching the circumstances and financial ability of said defendant, and having duly regarded said circumstances and financial ability,” ordered that “said defendant be * * * directed and ordered to pay to Georgia W. Oldfield, the wife of said defendant, for the use of said wife, the sum of eight dollars * * * for and during the period of one year from and after” the date of the judgment.

This was in accordance with the power given the court by the Act of May 13, 1903, under which the information was filed. The court in its order, as further empowered by that Act, directed that the defendant be released from custody on probation for the space of one year on entering into a recognizance to be conditioned according to law in cases of this character.

Subsequently the plaintiff in error sued out this writ of error from this court, and in his assignment of errors alleged that the verdict and judgment were against the law and the evidence; that the court should have taken the cause from the jury; that improper instructions were given by the court; that the court erred in permitting counsel to make remarks in the presence of the jury prejudicial to the defendant; that the court excluded proper evidence offered in behalf of the defendant and admitted improper evidence on behalf of the State.

As the instructions given by the court nowhere appear in the transcript of the record brought here, the assignment of error concerning them must of course be disregarded.

Those assignments based on the position that the verdict was clearly against the weight of the evidence, and that in consequence the jury should have been instructed to acquit or a new trial should have been granted, are not well founded.

There is an abundance of testimony to the effect that after an unhappy series of quarrels and difficulties the defendant in January, 1911, in a fit of ill temper or ill founded jealousy abandoned his wife for the last time, against his wife’s wish and entreaties, and has refused in spite of them to return to her or to support her. If the testimony of the complaining witness, Mrs. Oldfield, corroborated by her mother and, to some extent, by others, is to be believed, both the abandonment and the “want of good cause” were shown.

It is quite true that specific denials of this testimony were made by the defendant and the assertion made by him that he did not voluntarily leave his wife, but was driven from home, and further, that if he is to be held to have voluntarily deserted Ids wife, he was justified by her imprudent and improper and probably immoral actions. His testimony to this effect was also to some extent corroborated.

Whom to believe in this direct conflict of testimony was a question for the jury and the judge, who had the witnesses before them. It is not worth while for us to speculate on what might have been our decision on the credibility of the conflicting witnesses, had it been onr duty to pass on it. It was not our duty, but that of the jury and the judge in the Municipal Court, and we do not hold that the decision at which they arrived was against the clear weight of the evidence.

We have made a careful study of the record in this case with reference to the charges made in the assignments of error that the court permitted prejudicial remarks of the prosecuting counsel during the. trial and ruled on evidence erroneously. We can not find from the record itself any definite ruling which seems to us fatally erroneous, nor any general theory of evidence adhered to which would justify us in believing that anything so prejudicial to the defendant as to vitiate the verdict took place.

Improper and flippant remarks were made by the counsel for the People. They were not objected to and could not be said to have been permitted by the court. They would seem to have been for the most part poor attempts at joking, undignified and out of place, but not tending or likely to inflame the passions of the jury against the defendant. If objection had been made, the court would probably have admonished counsel to be more serious and confine himself to proper speech.

The plaintiff in error contends that the court erroneously excluded testimony concerning improper actions of Mrs. Oldfield before a certain date, at which a reconciliation had taken place after one of the recurring marital quarrels. But examination of the record rather than of the abstract shows no definite ruling on this matter which even on the theory of the plaintiff in error could have been prejudicial. At certain points in the trial questions in certain^, forms were objected to and excluded, but eventually everything which it would have been proper to admit under any theory concerning “condonation” was admitted. The jury heard it all.

The answer filed by the defendant to a divorce bill brought by his wife was properly excluded. It was a self-serving declaration and he was present in court, able to testify to anything which was contained in that answer which was material or relevant to this •controversy.

The bill was competent when offered by the defendant simply as showing the admissions of the complaining witness. It would not have been competent if offered by the State. Nor did the offer of it by the defendant—an offer which he was not obliged to make and could have withdrawn had he chosen when he found the answer would be excluded—make competent the answer to explain or contradict the bill. An entirely different question as to the answer is presented when a bill in chancery is competent evidence for the complainant and offered by him, or when the pleadings of parties foreign to the suit are competent and offered. The cases cited by counsel in his brief are not in point on the ruling here.

A more plausible ground for holding that erroneous rulings were made on evidence might be presented by the objection to the testimony on the reputation of Mrs. Oldfield for chastity and moral conduct, if it were not made for the first time in this court.

The counsel for the State proposed to call witnesses to this point, and the court assented in default of any objection made by the defendant’s counsel, who in some eases cross-examined them. We are not called on, under such circumstances, to pass on any doubtful question of law as to the competency of this character evidence had it been admitted over objection. There was certainly no fatal error in ruling on the offer. There was no ruling made.

Assuming the correctness of the judgment otherwise, the amount in which the defendant was mulcted for the benefit of his abandoned wife does not appear to us excessive as a punishment or as a provision.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Per Curiam.

text:
    Moritz Rosenthal et al., Appellees, v. Jacob Doppelt, et al., on appeal of Jacob Doppelt, Appellant.
    Gen. No. 18,973.
    Appeal bond—all parties in a joint appeal must sign. In a joint appeal, all' the parties joining therein must sign the appeal bond, or, on motion, the appeal will be dismissed.
    Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Appeal dismissed.
    Opinion filed October 28, 1912.
    Thompson, Clark & Root, for appellant.
    Moses, Rosenthal & Kennedy, for appellees.
   Per Curiam.

The defendants below, Jacob Doppelt, Mrs. Jacob Doppelt and the Foreman Bros. Banking Company, prayed and were allowed an appeal from a decree of the Circuit Court of Cook county on the filing of a bond in the penal sum of two hundred dollars. The defendant Jacob Doppelt filed a bond, the other defendants not joining therein, and alone comes here on appeal to this the October term of the court. The appellees move to dismiss the appeal.

In The First Congregational Church of Harvard v. Page, 255 Ill. 267, the court holds that where the appeal is joint, all joining therein must sign the appeal bond or on motion the appeal will be dismissed. This authority is controlling. The appeal in the case at bar was joint, and the bond being signed by only one of the appellants, the appeal is dismissed.

Appeal dismissed. ■


text:
    The People of the State of Illinois, Defendant in Error, v. William Kanouse, Plaintiff in Error.
    Gen. No. 17,216.
    1. Criminal law—information first attacked on appeal. Where a person pleads guilty to a charge of pandering, and the question of the sufficiency of the information is raised for the first time on appeal, the judgment of the lower court will not be disturbed, where the information is sufficiently definite to inform the defendant with reasonable certainty with what offense he was charged.
    2. Criminal law—when sufficiency of affidavit to an information cannot he urged. The sufficiency of an affidavit to an information cannot be raised on appeal, where the defendant' pleaded guilty in the trial court.
    3. Informations—affidavit. An affidavit to an information which, omitting certain words, states that affiant “being duly sworn on oath deposes * * * that the foregoing information * * * is true,” is sufficient.
    Prosecution for pandering. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed October 7, 1912.
    J. Gray Lucas, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

■ Judge Gemmill, sitting in the Municipal Court of Chicago, on June 21, 1910, granted leave to one Timothy A. O’Connor to file in the name of the People an information against the plaintiff in error, William Kanouse, in the following terms:

“Timothy A. O’Connor, a resident of the City of Chicago in the State aforesaid, in his own proper person comes now here into court and in the name and by the authority of The People of the State of Illinois gives the Court to be informed and understand that William Kanouse, late of the City of Chicago, heretofore, to-wit, on the 20th day of June, A. D. 1910, at the City of Chicago aforesaid, did then and there wilfully and unlawfully persuade, encourage, solicit and abet a female to enter as an inmate in a house of ill fame or place resorted to for the purpose of prostitution, and did aid and encourage the said female, known as Myrtle Kanouse, to become a prostitute, and did aid and abet in procuring a place for said female, Myrtle Kanouse, for the purpose of practicing prostitution in violation of Section 37Gr. Chapter 38 R. S., contrary to the form of the statute in such case made and provided and against the Peace and Dignity of The People of the State of Illinois.
Timothy A. O’Connor.
State of Illinois, County of Cook, City of Chicago.
)) ss.
Timothy A. O’Connor being first duly sworn on ... oath deposes and says that........is a resident of the City of Chicago, that ...... has read the foregoing information by...... subscribed and that the same is true.
Timothy A. O’Connor,
Subscribed and sworn to before me this 21 day of June, A. D. 1910.
Homer K. Galpin,
(Seal)
Clerk of the Municipal Court of Chicago.”

Kanouse was arrested and brought before the Court and being arraigned waived a jury and plead guilty to this information.

The judgment ordered recites that then “being duly advised by the court as to effect and consequences of said plea, said defendant is still persisting therein,” and that the court orders said plea to be accepted and entered of record against said defendant. The order then proceeds:

“The State’s Attorney now here moves the court for final judgment on the plea of guilty herein, and the said defendant not saying anything further why the judgment of the court should not now he pronounced against him on the plea of guilty entered in this cause, the court finds that it has jurisdiction of the subject matter of this cause and of the parties hereto, and it is considered and adjudged by the court that said defendant is' guilty of the criminal offense-of Pandering on said plea of guilty.”

Kanouse was sentenced to one year in the House of Correction and fined $300. Notwithstanding his entire lack of contest in the court below he has sued out a writ of error from this court, and claims .that the information was insufficient in law and charged no offense ; that the plea of guilty to it confessed therefore no offense and warranted no judgment.

We cannot agree with this contention. What led the informant so to go out of his way by a superabundance of words in charging the offense as to make possible the raising of this question, we cannot well imagine. More particularity as to the place for which the female was procured and less superfluity of verbs in describing the actions of the defendant in the procuring would have been better; but we have no doubt the defendant knew with reasonable certainty with what offense under the statute he was charged by the terms of the information. He chose not to question its sufficiency, but to plead guilty to it after being advised of the consequences.

There is no ground, therefore, we think, for our interference now.

It is urged that the affidavit to the information is insufficient. This is of no importance whatever, since the defendant pleaded guilty; but we may note that the affidavit contains, omitting certain words, the statement that “O’Connor being duly sworn on oath deposes * * * that * * * the foregoing * * * information is true.” That is sufficient in any event, we think, even had the question been raised on a motion to quash.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Morris Goldstein, Defendant in Error, v. Israel Muller, Plaintiff in Error.
    Gen. No. 18,313.
    Appeals and ekroes—motion to dismiss. A motion to dismiss a writ of error, sued out more than thirty days after the judgment, will he granted.
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the March term, 1912.
    Writ of error dismissed.
    Opinion filed December 9, 1912.
    Blum & Blum, for plaintiff in error.
    Kaplan & Kaplan, for defendant in error.
   Per Curiam.

June 24, 1912, we reserved until the hearing a motion made by the defendant in error to dismiss the writ of error in this cause because sued out more than thirty days after the judgment. We have now taken the cause into consideration and determined that we must grant the motion, for the reasons set forth in the opinion in Novelty Tufting Machinery Company v. The Peters & Roberts Furniture Company, 170 Ill. App. 134. The writ of error is therefore dismissed.

Writ of error dismissed.