author: Mr. Presiding Justice Taylor Mr. Justice Thomson

text:
    Cecilia Miller et al., on appeal of Cecilia Miller, Appellant, v. Peter Miller, Appellee.
    Gen. No. 25,309.
    Continuance, § 29

      —when cause is continued 6y operation of taw. A petition for rehearing in an equity case filed during the term in which the decree was rendered and thereafter, by order, continued to a specific date in the same term is continued to succeeding terms by operation of law under Hurd’s Rev. St. ch. 37, sec. 21 (J. & A. 1f 3019), where it was undisposed of at the end of the term in which it was filed.
    Thomson, J., dissenting.

      Appeal from the Circuit Court of Coolc county; the Hon. Thomas G. Wihdes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remahded.
    Opinion filed October 6, 1920.
    Cantwell, Smith & Cantwell, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On June 28, 1915, the complainants filed a bill of complaint in the circuit court claiming that a certain deed purporting to be executed by Michael Miller, the husband of the complainant, Cecilia Miller, who died intestate on October 16,1914, was a forgery and claiming that the complainant, Katherine Miller, owned a half interest in certain real estate subject to the dower of the complainant, Cecilia Miller, and praying for a partition of said real estate between the complainants on the one hand and the defendant, Peter Miller, on the other.

The defendant demurred to the bill of complaint and on January 3, 1916, his demurrer was overruled and he was given leave to answer, and on January 12, 1916, filed his answer, in which he admitted that Michael Miller, the husband of the complainant, Cecilia Miller, died intestate on October 16, 1914, but denying that the complainants or either of them had any interest in the real estate mentioned in the bill of complaint. The answer further set up that Michael Miller and his wife, the complainant, Cecilia Miller, on January 13, 1910, executed a warranty deed to the property in question conveying a one-half interest in the property in question to the defendant, and that, therefore, the complainant is not entitled to the relief prayed for.

On June 29, 1916, there was filed in the office of the clerk of the court a stipulation by and between counsel for the complainants and the defendant that the cause be continued generally and placed on the next chancery calendar of the circuit court of Cook county. A similar stipulation was filed on June 29, 1916, and on November 22, 1916', an order was entered dismissing the bill of complainant for want of prosecution.

On November 24, 1916, there was filed a stipulation signed by counsel for the parties and providing that the order dismissing the cause for want of prosecution should be vacated and set aside, and on the same day an order was entered vacating and setting aside, the prior order of dismissal.

On March 10, 1917, counsel for the complainants filed a notice, a copy of which had been served upon counsel for the defendant, that on March 10, 1917, they would ask that the cause be placed on trial at the earliest convenience of ,the court. On May 10, 1917, the chancellor, Hon. Thomas Gr. Windes, entered a decree in said cause. That decree recited that after a hearing and a consideration of proofs and argument of counsel ft was adjudged that the document purported to be signed by Michael Miller and the complainant, Cecilia Miller, was a valid warranty deed and was delivered to Peter. Miller as their free and voluntary act, and that complainants’ bill is without equity and that it.be accordingly dismissed.

On May 15, 1917, the solicitors for the complainants filed a notice, a copy of which had been served on O’Donnell & Toolen, the solicitors for the defendant, to the effect that they would appear before the chancellor, Hon. Thomas G-. Windes, and ask leave to file a certain petition, a copy of which was attached, and ask that the disposition of the petition should be set down for May 19, 1917." On the same date the petition was filed. That set up, among other things, that the complainant, Cecilia Miller, being confident that she had not signed the deed in question, and being of the opinion that the signature of Michael Miller to said document was not Ms signature, “and not believing that it would be testified to that she had signed any such document she proceeded with the trial of the said cause”; that she believes that if handwriting experts are produced they will testify that the signatures are not genuine; that in view of the fact that one of the complainants is a minor child the court should permit the introduction of additional evidence, to wit, that of handwriting experts; that she is ready and able to produce at least two handwriting experts and will agree to produce a third who may be named by the court. The petition prayed that the cause be set down for a rehearing on the question of admitting additional evidence.

On May 15, 1917, an order was entered reciting that the “complainants motion for a rehearing in the above entitled cause is hereby entered and continued until May 26, 1917, at 9:30 o’clock a. m.” Upon that order appeared the following: Entered 15th day of May, 1917, Thomas G. Windes, Judge. Entered. Judge.”

On November 14,1917, the solicitors for the complainants filed a notice, a copy of which had been served upon the solicitors for the defendant, reciting that they would appear before Judge Windes and ask that the petition for review be set down for hearing.

On December 11, 1917, a similar notice was filed stating that on Tuesday, December 11, 1917, they would ask Judge Windes to set the petition down for a hearing. Attached to the latter notice when it was filed was what purports to be an affidavit by one F. G. Smith.

On December 15, 1917, there was filed with the clerk of the court an affidavit by Patrick H. 0 ’Donnell, one of the solicitors for the defendant. On December 15, 1917, a motion was filed by the solicitors for the complainants, which motion requested the court to set down complainants’ petition for a rehearing of the decree.

On the same day an order was entered reciting that the court had lost jurisdiction of the . petition and that the petition should he dismissed and that the complainants’ motion to have petition set down for a hearing should be denied. That .order is as follows :

“On motion of solicitors for complainants, their motion to have the petition heretofore filed herein by said complainants, asking for a rehearing of the above entitled cause, which said petition was filed at the same term of court as the decree heretofore entered herein, set down for hearing by said court, and this last said motion to have hearing on said petition set, now coming on for hearing, said defendant appearing by counsel, and the court having read the affidavits filed for and on behalf of both said complainants and said defendant, and arguments of counsel now being fully adyised in the premises, finds that said petition for rehearing was filed at the same term óf court at which the decree herein was entered, leave of court to file said petition having first been obtained; that hearing on the said petition was set for May 26th, 1916, the next term of this court, to-wit; the May term thereof, and the. court further finds that on said last day and date said motion appeared on the contested motion calendar of said court, and was on said day and date by agreement of parties, continued one week to June 2nd, 1917.
“The court further finds that on said June 2nd, 1917, said petition for rehearing appeared again on the contested motion calendar, and was again by agreement of counsel for- both parties, passed one week "to x June 9th, 1917, on which said date, it was again continued by agreement to June 23rd, 1917, on which said last day and date it appeared on the contested motion calendar, which was in the June term of this court; that on said last day and date, it Was again continued to July 7th,. 1917.
“The court further finds that all of said continuances were by agreement'; that -on the last day and date mentioned, his Honor, Judge Thomas Gr. Windes, by whom said decree had been entered herein, before whom said petition for rehearing had been filed, and on whose calendar said petition had been continued from time to time, as aforesaid, was sick and' confined to his home; was unable to be present at his court, and did not appear in court on said last day and date.
“The court further finds that on said July 7th, 1917, this court did not decide said motion or make any disposition thereof; that no hearing has been had on said petition for rehearing, down to this day and date, nor has the same been disposed of in any manner, nor has there been any order entered, or any record made of any disposition of the said petition for rehearing, filed as hereinbefore set out.
“The court further finds, that it has lost jurisdiction of said petition, and for said reason finds that the petition should be dismissed.
“It is therefore, ordered, adjudged and decreed, that complainants’ motion filed herewith in writing, to have the said petition heretofore filed herein, as aforesaid, set down for hearing, be, and the same is hereby denied.”

It is contended on behalf of the complainants that inasmuch as the motion to hear the petition, which had already been entered, was set by the chancellor for May 26, 1916, in the May term of the court, that it was automatically continued from month to month pursuant to the statute and that when on December 15, 1917, counsel for the complainants moved the chancellor for a rehearing of the motion, it should then have been heard and not denied.

It is provided in section 21, chapter 37, Hurd’s Revised Statutes 1915-16, p. 784 (J. & A. 3019), as follows :

“All causes and proceedings pending and undisposed of in any of said courts at the end of the term shall stand continued until the next term of the court.”

In Updike v. Armstrong, 4 Ill. 564, where a cause was submitted to the court for trial and a jury waived and the judge took it under advisement until the next term of court and then resigned and another judge was appointed in his place, it was held proper that the new judge should try the cause when reached in its order on the docket. The first trial occurred at the September term of 1841 and the second trial, which was objected to, at the August term of 1842. Mr. Justice Catón in the opinion in that case said: “It was objected that no order for a continuance appears to have been entered. If any such order was necessary to continue the jurisdiction of the court, we will presume that either a general or special order was entered. But no such order was indispensably necessary. If from any cause such an order be omitted, all causes undisposed of are continued, by operation of law, to the next term, by the adjournment of the court.”

In Seiter’s Estate v. Mowe, 182 Ill. 351, it was held that a motion “undisposed of at the end of the July term would, with the adjournment of that term, be continued by operation of law.”

In Bennett v. Bradford, 132 Ill. 269, the court said: “The orders made continued the motion until its decision by the chancellor,.and, even without those orders, the adjournment of the court without a decision of the motion would have carried the motion over to the next term.” Citing Rev. St. 1874, ch. 37, sec. 38.

In Wentworth v. Treat, 89 Ill. App. 214, the court said: “The motion entered in the February term and the order for continuing it retained the cause in court until such motion was disposed of. * * * The statute provides that all causes and proceedings pending and undisposed of at the end of a term shall stand continued to the next term. Rev. St. ch. 37, sec. 56. The cause being continued, the court retains jurisdiction.” Hearson v. Graudine, 87 Ill. 115.

In Watson v. Le Grand Roller Skating Rink Co., 177 Ill. 203, where on August 12, 1892, a decree was entered dissolving a corporation and appointing a receiver, and on August 16, 1898, that decree was vacated, Mr. Justice Wilkin said: “While, in form, the decree of August 12, 1892, may have been final, the filing by the defendant of its petition for a rehearing at the same term at which the decree was rendered, and the cause being continued to a, subsequent term upon that petition, had the effect of suspending the operation of the decree and of retaining jurisdiction over the subject-matter at the subsequent term, and the court had the power, at the latter term, to amend, alter, modify or vacate the decree. ’ ’

Shannahan v. Stevens, 139 Ill. 428. In that case at the February term, 1884, the court dismissed the bill of complaint of one Bridget! Shannahan and at the same term an oral motion was made by her husband, Patrick Shannahan, to set aside the decree of dismissal and to allow him to intervene as a cocomplainant. No decision of that motion was made and the entry of it remained upon the docket without any order being made in regard to it until the May term, 1886, when in that term, he, with others, presented a petition setting up certain facts as to whether the court had jurisdiction. The Supreme Court said: “The motion not having -been decided by the court at the term when made, was continued by operation of law from term to term until decided.” Citing section 38 of the statute, supra.

Inasmuch as in the instant case the original motion was made and the petition for a rehearing was filed in the term at which the decree was entered, we are of the opinion that the decree was then stayed, and, pursuant to section 21 supra, that the trial court, on December 15, 1917, still had jurisdiction of the motion for a rehearing.

The order of the chancellor is reversed and the cause remanded.

Reversed and remanded.

O’Connor, J., concurs.

Thomson, J., dissenting.

Mr. Justice Thomson

dissenting: I am unable to concur in the foregoing decision. Whereas an order of court entering a motion or petition for a rehearing and providing that the hearing on the same be continued, will, by operation of the statute referred to in the majority opinion, have the effect of continuing the matter beyond the term, where it is not disposed of within the term in which the order ’is entered, in my opinion, where the order is that the matter be continued to a stated term or a specific date and such term or the term including such specific date expires, without any further order in the case, the court has lost jurisdiction.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Chicago Railways Company, Appellee, v. R. F. Conway Company, Appellant.
    Gen. No. 25,169.
    1. CoNTBiBUTiorr, § 1

      —when joint tort-feasor is entitled to contribution. In an action for indemnity by one tort-feasor against another where it appeared that plaintiff, a street car company, was by agreement with the city required to make repair between its tracks and having obtained a permit to do so employed defendant contractor to do the work, giving him complete charge, the street car company and the contractor are not in pari delicto as to a person injured by running into "an unprotected excavation made by the contractor in the prosecution of his work, the street car company being only technically liable and the contractor the real party at fault.
    2. Contkcbtjtion, § 1*—what is effect of tort malum prohibitum as to right of contribution. Where the offense of joint tort-feasors is merely malum prohibitum, and does not involve moral delinquency or turpitude, the law will' inquire into the relative delinquency of the' parties and administer justice between them, although both parties are wrongdoers.
    3. Contribution, § 1

      —when right will be denied. It is a general and long-established rule of law that neither contribution nor indemnity will be given to one of several joint tort-feasors against the others, but this rule is only applied to cases of intentional or conscious wrongdoing.
    4. Contribution, § 1*—what is effect of violation of ordinance as to right to contribution. In an action over to indemnify one of two joint tort-feasors in a personal injury accident, the defendant who satisfied the judgment is not precluded from maintaining an action for indemnity against his codefendant, where it appears that the plaintiff in the action to indemnify had, in the personal injury action, been charged and found guilty of the violation' of an ordinance.
    5. Contribution, § 2*—when judgment is not res adjudicata. In an action over to indemnify one of two joint tort-feasors in a personal injury action, the judgment in the personal injury case is not res adjudicata where the record in the said case shows that the primary cause of the plaintiff’s injuries was the negligence of one of the defendants and that the other defendant was only technically guilty.
    Appeal from the Superior Court of Cook county; the Hon. Joseph Sabatji. Judge, presiding. Heard in the Branch Appellate Court at the Ma. h term, 1919.
    Affirmed.
    Opinion filed October 6, 1920.
    Edmund S. Cummings, for appellant.
    Frank L. Kriete and William H. Symmes, for appellee; J. R. G-uilliams and C. L. Mahony, of counsel.

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

      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.

Chicago Railways Company brought this action against the R. F. Conway Company to recover the amount of a judgment and costs which judgment was rendered against both plaintiff and defendant in a suit for personal injuries brought by one Zientek. Plaintiff having been compelled to pay the judgment in the persona] injury case brings this action over for indemnity.

The case was tried without a jury and there was a finding and judgment in plaintiff’s favor for the amount of its claim, viz., $1,930.30, to reverse which defendant prosecutes this appeal.

The record discloses that plaintiff owns and operates a street car system in Chicago and that defendant is engaged in the paving business; that plaintiff under its agreement with the City of Chicago was required to make certain repairs in Ogden avenue and that it employed defendant to do the work; that in the prosecution of the work defendant removed a portion of the pavement of the street near the track and while the work was in progress Zientek, a motorcycle policeman, was riding his motorcycle in or across Ogden avenue in the nighttime and ran into the excavation and was injured. He afterwards brought suit against plaintiff and defendant -here to recover for the injuries suffered and after the trial there was a verdict and judgment in his favor against both defendants. An execution was issued in that case and a demand made by the sheriff upon plaintiff for payment and it was compelled to and did pay the judgment. In the instant case plaintiff claims that it was only technically guilty of negligence in the Zientek case and that the party really at fault was the defendant. On the other hand, defendant’s position is that since in the personal injury case plaintiff was charged with | the violation of a city ordinance which provided that! every person engaged in digging in any street should, = where the work was dangerous, erect a fence or rail-' ing at such excavation and maintain suitable lights | during the nighttime so as to prevent danger to persons traveling the streets, and since plaintiff was j found guilty of that charge, this conclusively established the fact that it was more than technically guilty in that case—that the judgment in that case is res judicata of that fact and, therefore, plaintiff and defendant were joint tort-feasors, in which case an action for indemnity will not lie.

It is a general and long-established rule of law that neither contribution nor indemnity will be given to one of several joint tort-feasors against the others. This rule is only applied to cases of intentional or conscious wrongdoing. Wanack v. Michels, 215 Ill. 87. But this rule is qualified as stated by the Supreme Court of Massachusetts in the case of Lowell v. Boston & L. R. Corporation, 23 Pick. 24, and which is quoted with approval by the Supreme Court of the United States in the case of Washington Gas Light Co. v. District of Columbia, 161 U. S. 316: “Our law, however, does not in every case disallow an action, by one wrongdoer against another, to recover damages incurred in consequence of their joint offense. The rule is, in pari delicto potior est conditio defendentis. If the parties are not' equally criminal, the principal delinquent may be held responsible to his codelinquent for damages incurred by their joint offense. In respect to offenses, in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offense is merely maVum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties and to administer justice between them, although both parties are wrongdoers.”

And while it seems to be conceded by both parties that this is -a correct statement of the law, they arrive at opposite conclusions in applying it to the instant case. Defendant argues not only that the judgment in the personal injury case is res judicata as before stated, but that as a matter of fact plaintiff here was more guilty in the personal injury case than the defendant. The record made in the personal injury case is in evidence here and it appears that a permit to do the work was issued to the plaintiff by the city and that after this permit was obtained the defendant Conway Company was employed to do the work and was in complete charge of it; that in the prosecution of the work defendant cut and removed some of the asphalt alongside of the track and “went down three or four inches”; that this excavation or ditch was temporarily filled up when the men quit work in the afternoon. There was further evidence introduced that employees of the Conway Company put up red lights at the place in question to warn people of the danger in the street. From this it clearly appears? that in the personal injury case the Conway Company* itself took the position that it was its duty to see that , the opening in the street was properly guarded and' protected. Of course, there was evidence also that no lights were put up* and that the ditch or excavation was not filled and as a result Zientek was injured. These questions, however, were finally determined in the personal injury case in favor of the plaintiff there, and it is clear, therefore, that the negligence or fault ft was solely that of the Conway' Company. Of course, the plaintiff Railways Company was technically guilty and liable to the policeman and for that reason the judgment went against it as well as the Conway Company. We think it clear, therefore, that plaintiff and defendant here were not in pari delicto in the personal injury suit and defendant being guilty of the greater wrong, the plaintiff having paid the judgment is entitled to indemnity.

To the contention made by defendant that because in the personal injury case plaintiff was charged with the violation of an ordinance and found guilty of such charge, and, therefore, that judgment is res judicata and plaintiff is such a tort-feasor as cannot maintain an action for indemnity, it may be said that in a case f of negligence where there is more than one defendant and a recovery is had against all, such defendants are always found guilty of the violation of some provision of either common law, statute or ordinance applying to the particular case, and, of course, this fact does not preclude one of such defendants in a proper case from maintaining an action for indemnity against? his codefendants. The judgment in the personal injury ease was not res judicata, since upon an examination of the' entire record in that case it clearly appears that the primary cause of the policeman’s injuries was the negligence of the Conway Company and that the Railways Company was only technically guilty. The parties not being in pari delicto, defendant here being the principal offender is liable over to plaintiff.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Taylor, P. J. and.Thomson, J., concur.


text:
    In the Matter of Sidney Heller, a dependent child. Jacob Allan Cohen, Appellant, v. Board of Commissioners of Cook County and Bessie Heller, Appellees.
    Gen. No. 25,210.

      1. Statutes, § 196

      —what is object of construction of statute. The object of construing a statute is to arrive at the purpose of the Legislature.
    2. Pabent and child, § 4*—when mother is not entitled to pension. On a petition to provide partial support for a mother pursuant to Hurd’s Rev. St. 1917, p. 281 et seq. [Callaghan’s 1916 Stat. If 3416(1) et seq.] held that subd. 6, sec. 11 [Callaghan’s 1920 Stat. f 3416(11)] of said statute does not entitle a widow to a decree awarding her aid thereunder, where her equity does not exceed $1,000, said statute providing in effect that a mother of minor children is to receive support upon the decease of her husband, but that such relief shall not be extended where the widow is owner of real or personal property other than household goods, provided that the relief is not to be denied if the widow is the holder of or entitled to a homestead, under the exemption law of Illinois, or if said widow is entitled to a dower right in real estate, the fair cash market value of which does not exceed $1,000, where it appears that husband and wife had joined in a mortgage releasing right of homestead; that said mortgage incumbered their property, which had a fair market value of $5,500, to the extent of $5,300; that said mortgage had not been foreclosed; and that the widow was entitled to possession under the Homestead Act.
    3. Homestead, § 11*-—what is extent of- homestead. The estate of homestead is an estate in land, and is the right of a widow to occupy real estate of the deceased husband not to exceed $1,000 in value.
    4. Infants, § 4*—what is effect of release of homestead as to pension. On a petition to obtain support of a mother, pursuant to Hurd’s Rev. St. 1917, p. 281 et seq. [Callaghan’s 1916 Stat. 1f 3416(1) et seq.], which provides for such support where the husband is dead and where there are children under 14. years of age, held that the release in a mortgage or trust deed of a widow’s right of homestead did not affect her right to occupy the property as a homestead as long as the mortgage was not foreclosed, where it appeared that husband and wife had owned real estate to the value of $5,500; that same had been incumbered to the extent of $5,300; that the wife had released her right of homestead in said instrument; that said mortgage had never been foreclosed; and that the relief in question was asked for on the ground that the widow’s equity was less than $1,000.
    Appeal from the Circuit Court of Cook county; the Hon. Victor P. Arnold, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed October 6, 1920.
    And at,mah & Coheh, for ■ appellant.
    Maolay Hoyhe, for appellee Board of Commissioners; Robert E. Hogan and Joel C. Carlson, 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.

Jacob Allan Cohen, a resident of Cook county, filed a petition in the circuit (juvenile) court of that county in accordance with the provisions of an act to provide for the partial support of mothers whose husbands are dead and who have children under 14 years of age, etc. (Hurd’s Rev. St. 1917, p. 281 et seq.), and praying that the Board of Commissioners of Cook County be directed to provide and furnish aid to the mother of Sidney Heller. The case was heard upon a stipulation of facts, the relief denied and the petition dismissed, to reverse which this appeal is prosecuted.

It is agreed by counsel for both parties that the question to be determined is the construction of subdivision 6, sec. 11 of the Act above referred to (Laws of 1917, p. 221 [Callaghan’s 1920 Stat. ff 3416(11)]), which is as follows: (6) a mother shall not receive such relief who is the owner of real property or personal property other than the household goods, but no mother who shall be the holder of, or entitled to, a homestead under the exemption laws of this State, or who is the holder of, or entitled to a dower right in real estate, provided the' fair cash market value of said real estate is not more than one thousand ($1,000) dollars, shall be denied relief under the provisions of this act.” The facts as stipulated, so far as material, are these: Bessie Heller is a widow and has resided for more than 3 yeárs continuously prior to the death of her husband, Meyer Heller, in Cook county; that she is a citizen of the United States and the mother of Sidney Heller, - who was 10 years old at the time of filing of the petition; that the child resides with his mother and that it is for his welfare and best interest that he continue to do so; that there are three other children in the family, Henry aged 12, Robert 5, and Jacob 3; that unless relief is given as prayed for, the mother will be required to work regularly away from her home and from her children; that she is a proper person mentally, morally and physically to have the custody of them; that it is necessary that relief be granted to save the children from neglect; that she is not the owner of any real estate or personal property other than the household goods; that prior to the time of her husband’s death he owned a piece of real estate in Cook county worth $5,500 and that he and- his wife executed a mortgage or trust deed on said property to secure an indebtedness which amounts to $5,300; that in and by the mortgage or trust deed the dower and homestead rights were waived; that the mortgage has not been paid and that the widow has no money or property with which to pay it; that the holder “of the lien indebtedness * * * is now in possession of said real estate,” and that the widow is in receipt of no moneys, rents, issues or profits from the real estate, It is further stipulated that the widow “is entitled to a dower and homestead right” in the real estate; that the fair cash market value of the real estate at the time of the husband’s death was $5,500 and that it was incumbered for $5,300, leaving an equity of but $200.'

The object of construing a statute is to arrive at the purpose of the Legislature. “It is the intention of the lawmakers that makes the law.” Hoyne v. Danisch, 264 Ill. 467; People v. Fox, 269 Ill. 300. The purpose of the act as stated in its title is to provide for the partial support of mothers whose husbands are dead when such mothers are citizens of the United States, residents of the county in which the application is made and have children that are under 14 years of age. Counsel for petitioner contends that the meaning of subdivision 6, sec. 11, is that where a widow applies for aid and the conditions required by the statute are present, she is entitled to a decree awarding her the aid where her equity in real estate does not exceed $1,000. We cannot agree with this contention, nor can we agree with the contention of the respondents, viz., that the statute is “clear, plain and unambiguous.” We think the provision in question is very badly drawn. It provides that a widow who comes within the statute shall not receive any relief where she owns real estate and this, too, regardless of the value of it. This act was passed in 1913 and amended in 1917 by adding that no mother should be denied relief who is entitled to a homestead estate or who is the holder of or entitled to a dower right in real estate provided the fair cash market value of the real estate does not exceed $1,000. In this State the estate of homestead is an estate in land and is the right of a widow to occupy, after the death of her husband, real estate as a homestead not to exceed in value $1,000. Garwood v. Garwood, 244 Ill. 580. In the instant case it is stipulated that the real estate in which the widow has a homestead is worth $5,500, and the fact that she released her right of homestead in the mortgage or trust deed does not affect her right to occupy the property as a homestead until the mortgage is foreclosed. There is no intimation that the mortgage has been foreclosed, but it is stipulated that the mortgagee is in possession. How he came to be in possession does not appear. We, therefore, hold that under the statute the mother having an estate of homestead in property worth $5,500 is not entitled to the relief prayed for. Furthermore, she has a dower interest in the same real estate and the statute says that where real estate in which the widow has a dower interest is worth more than $1,000, no relief can be had.

Since the relief prayed for cannot be awarded under the statute, the court properly dismissed the petition and the judgment of the circuit court of Cook county is affirmed.

Affirmed.

Taylor, P. J. and Thomson, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Samuel Marcofsky, Plaintiff in Error.
    Gen. No. 25,294.
    1. Witnesses, § 168

      —when communication to attorney is not privileged. In a prosecution by a wife against her husband on the charge of pandering, where the prosecutrix before she filed the information had retained an attorney in a divorce proceeding to which she was ¿. party, and had stated to him that she would start proceedings charging her husband with the crime of pandering unless he gave back to her her diamond earrings, and also stated that she had not given her husband any money which she had earned practicing prostitution, such statements were not made to him for the purpose of obtaining his advice or opinion in ¿he divorce case or engaging him in the conduct of any professional business, but were mere “gratis dictum” and not privileged.
    2. Witnesses, § 164*-—what is nature of privilege between attorney and client. Professional communications between attorney and client are privileged communications which the law excludes on the ground of public policy.

      3. XymrossES, § 167

      —who is entitled to benefit of privilege. The privilege as to communication between attorney and client is that of the client and not of the attorney.
    4. Witnesses, § 167^^—what communications of client to attorney are privileged. A communication to be privileged must be made to the legal adviser to obtain his opinion in matters of law.
    Error to the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in the Branch Appellate Court at the October "term, 1919.
    Reversed and remanded.
    Opinion filed October 6, 1920.
    Max M. Korshax, for plaintiff in error; George L. Beker, of counsel.
    MaclAy Hoyne and Edward E. Wilson, for defendant in error.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

On January 31, 1919, Jett Marcofsky, wife of the defendant, Samuel Marcofsky, by leave of court, filed an information in the municipal court of Chicago charging that on the 6th day of December, 1918, her husband, the defendant, had received from her $12 which she had earned in the practice of prostitution and, therefore, he was guilty of the crime of pandering. The defendant pleaded not guilty and waived trial by jury. The court after hearing the evidence found him guilty and imposed a sentence of 6 months in the House of Correction and a fine of $500, to reverse which he prosecutes this writ of error.

The. only point' which we deem necessary to consider is whether the court erred in refusing to permit the witness Charone to testify.

The record discloses that defendant’s wife in the early part of December, 1918, and before she filed the information, was in the office of Charone whom she had retained to represent her as her attorney in a divorce proceeding to which she was a party. She testified for the People and on cross-examination was asked whether she did not tell Charone in his office that she was going to start a prosecution against her husband for pandering because he had received from her $12, the proceeds of her practice of prostitution, unless the defendant returned to her her diamond earrings which he then had, and also, if she had not stated to Charone that she had not given the $12. She answered that she had not stated any of these matters to Charone. Defendant then called Charone and offered to show that Mrs. Marcofsky at the time mentioned had stated to him that she would start proceedings against her husband charging him with the crime of pandering unless he gave back to her her diamond earrings, and that she also told him that she had not given her husband any money which she had earned practicing prostitution. It was claimed by Charone and Mrs. Marcofsky that this conversation was privileged. The court sustained this contention and refused to permit the witness to testify. In this we think there was error. Greenleaf on Evidence (13th Ed.), sec. 240 ; Hatton v. Robinson, 31 Mass. (14 Pick.) 416; DeWolf v. Strader, 26 Ill. 225.

Professional communications between attorney and client are privileged communications which the law on the ground of public policy excludes for the reason that greater mischiefs would result from permitting their admission than from rejecting them. These communications are excluded not on account of any particular importance which the law attributes to the business of legal professors, but out of regard to the interests of justice which cannot go on without the aid of men skilled in the law. If they were not excluded no one would dare consult the professional adviser. G-reenleaf on Evidence, sec. 238. This privilege is that of the client and not of the attorney. People v. Barker, 56 Ill. 299; Wood v. Thornly, 58 Ill. 464; Lanum, v. Petterson, 151 Ill. App. 36; Hatton v. Robinson, supra. But such communication to be privileged must be made to the legal adviser to obtain his opinion in matters of law, and unless it is so made it is not privileged. Hatton v. Robinson, supra; DeWolf v. Strader, supra. In the instant case it is clear that if Charone was retained by Mrs. Marcofsky to represent her in a divorce proceeding and if she told him that she was going to prosecute her husband for pandering unless he returned her diamond earrings, this matter was not disclosed to him for the purpose of obtaining his advice or opinion in the divorce case or engaging him in the conduct of any professional business. For aught that appears, it was, as stated by Mr. Chief Justice Shaw in the Hatton case, “a mere gratis dictum.”

The evidence of Charone should have been admitted, and since in our opinion it was very material, the judgment of the municipal court of Chicago must be reversed and the cause remanded.

Reversed and remanded.

Taylor, P. J. and Thomson, J., concur.


author: Mr. Justice O’Connor Mr. Justice Thomson

text:
    The People of the State of Illinois ex rel. Thomas H. Lally, Appellee, v. Charles E. Frazier et al., Civil Service Commissioners of City of Chicago, Appellants.
    Gen. No. 25,635.
    1. Mandamus, § 6

      —what is necessary to show right to writ. A writ o£ mandamus will not be awarded unless the petitioner shows a clear legal right thereto and a corresponding legal duty on the part of the respondent to perform the act sought to be compelled by the writ.
    2. Civil sebvice, § 27*—when mandamus is available. A writ of mandamus will be awarded against the Civil Service Commissioners where the relator has established a clear legal right to participate in a promotional examination and such participation has been denied by the Commissioners. - .
    3. Civil sebvice, § 4*—who is eligible to take promotional examination. Under the Civil Service Act, sec. 9 (J. & A. | 1807), providing that “all examinations for promotion shall be competitive among such members of the next lower rank,” an applicant for the position of foreman of a department, who held a position in the department not in the next lower rank, was not entitled to take the promotional examination.
    4. Civil sebvice, § 4*—when eligible list must be prepared. On mandamus to compel the Civil Service Commission to make a proper certification of eligibles for a vacancy, the relator is entitled to have the Commissioners make a correct eligible list and certify, when requested, the names of the three persons who passed examination at the head of the list.
    Thomson, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jb., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed October 6, 1920.
    Samuel A. Ettelson, for appellants; Morton S. Cressy, Boy S. G-askill and Adolph Eadnitzer, of counsel.

      Busch, Leesman & Roemer, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the respondents, the Civil Service Commissioners of the City of Chicago, seek to reverse a judgment of the circuit court of Cook county awarding a writ of mandamus commanding that they strike the name of Edward K. Manning from the list of eligibles for the position of foreman of water pipe construction in the Water Pipe Extension Division of the Bureau of Engineering of the Department of Public Works of Chicago, and commanding them to revoke the certification of Manning theretofore made by them to the Commissioner of Public Works, and that they certify to the Commissioner of Public Works the names of the three persons standing highest on the list of eligibles.

The respondents demurred to the petition. The demurrer was overruled; they elected to "stand by it and judgment was entered as prayed for, so that the question here turns on the sufficiency of the petition.

The petition briefly set up that the relator, Thomas H. Daily, was employed as assistant foreman in the Water Pipe Extension or Water Pipe Construction' Department of the City, the terms being used interchangeably, which was under the Department of Public Works; that he was a civil service employee; that there was to be held a promotional examination for the position of foreman in the Water Pipe Construction Department; that the relator’s position as classified by the Civil Service Commissioners was Grade 2 in Class K; that Manning was also a civil service employee and his position or employment was classified as Grade 3 in Class H. The petition further sets up that relator protested to the Commissioners for permitting Manning to take the examination; that the Commissioners stated they would permit Manning to take the -examination and, if he passed, they would determine whether under the law he was entitled to take the examination; that the examination was held and that Manning passed second and the relator fourth; that thereupon relator again protested to the Commissioners that Manning was ineligible to take the examination and that his name should be stricken from the list-, of eligibles; that the Commissioners put off the relator from time to time stating that they would pass on the question later, and shortly afterwards, upon request of the Commissioner of Public Works, they certified three names including that of Manning to the Commissioners, and that Manning was thereupon appointed to the position of foreman in the Water Pipe Construction Department. The petition further set up the amount appropriated for the years 1916, 1917 and 1918 for the position of assistant foreman and water pipe inspector; that for 1918 the appropriation for assistant foreman was $1,800 per year, and for water pipe inspection $145 per month, or $1,740 per year. It is further averred that the duties of assistant foreman and water pipe inspector are different.

Of course, it is conceded that a writ of mandamus will not be awarded unless the petitioner shows a clear legal right thereto and a corresponding legal duty on the part of the respondent to perform the act sought to be compelled by the writ. People ex rel. Younger v. City of Chicago, 280 Ill. 576. But where the relator has established a clear legal right to participate in a promotional examination and such participation has been denied by the Civil Service Commissioners, the writ will be awarded. People v. Reinberg, 263 Ill. 543; People v. Errant, 229 Ill. 56.

Section 9 of the Civil Service Act (J. & A. 1807) provides for promotion in the classified service on the basis of ascertained merit and seniority in the service, and that where it is practicable, vacancies shall be filled by promotion, and that “all examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to such examination.” The respondents contend that Manning was entitled to take the examination because the work he did as water pipe inspector was in the same line and character of work as that of foreman in the Water Pipe Construction Department. The argument is that the sole test to be applied in determining Manning’s right to take the examination was whether the duties performed by him as water pipe inspector were of the same character as the duties required to be performed by the foreman in the Water Pipe Construction Department. The respondents argue that if the duties were in the same line and similar in character, Manning was entitled to take the examination. In support of this the case of People ex rel. Loftus v. Frazier, 214 Ill. App. 664, Abst., is cited. In that ease, however, the person seeking to take the promotional examination was in the next lower grade but it was argued that his duties were not of a similar character. The court, however, held that the duties to be performed by persons in both grades were of the same character and said: “By placing the relator and other detective sergeants in Grade 2 the respondents rendered them eligible to take the promotional examination for vacancies in Grade 3, the next higher position.” In the instant case no argument is made that the rank or grade of foreman is next higher than that of water pipe inspector, nor is any point made that the classification as made by the Commissioners is not in all respects proper. In the classification as made by the Civil Service Commissioners, assistant foreman was the next lower grade to that of foreman. Foremen were in Class K, Grade 3, and the next lower grade or rank was assistant foreman, Class K, Grade 2. Manning was not in this class at all. He was in Class H, Grade 3, and, therefore, was not in the next lower rank or grade. We hold that to entitle a person to take a promotional examination such person must be in the next lower grade and his duties must be of a character similar to those of the position contemplated by the next higher grade. It follows that Manning was not entitled to take the promotional examination since he was not in the same class or grade at all.

The respondents also contend that the writ was improperly awarded for the reason that Manning was not on the eligible list since he had been certified and was working in the Department of Public Works and that the Commissioner of Public Works should have. been made a party. We think the relator was entitled to have the Commissioners make a correct eligible list and certify, when requested, the names of those three persons who passed at the head of the list. People ex rel. Laist v. Lower, 251 Ill. 527; People ex rel. Loftus v. Frazier, 214 Ill. App. 664.

The judgment of the circuit court of Cook county is affirmed.

Affirmed.

Taylor, P. J., concurs.

Thomson, J., dissenting.

Mr. Justice Thomson

dissenting:—I am unable to concur in the foregoing opinion. It was .held by our Supreme Court in People ex rel. Laist v. Lower, 251 Ill. 527, that the Civil Service Commission has no power to appoint to any office or position in the classified service but that power is in the head of the department or office in which the position is and that where the Civil Service Commission has certified one for appointment to a given position under the classified service and, before the appointment has been made to the position by the head of the department, the' Commission discovers that for some reason the certification in question should. hot have been made, it is within the power of the Commission to correct its mistake by withdrawing the certificate. That is not this case, for here there was an examination duly held, and based upon that examination an eligible list was made up and posted, and pursuant to the request of the Commissioner of Public Works, for a certification from that list for appointment ‘to a vacancy, the first three names on the list, which included that of Manning, were certified and Manning was duly appointed to the position and now occupies it, and after the completion of all these steps, the petitioner filed his petition, asking that a writ of mandamus issue to the Civil Service Commission commanding it: “ (1) To strike the name of Edward K. Manning from the list of eligibles for the position in question; (2) to cancel and revoke the certification of said Edward K. Manning, heretofore made by them to the Commissioner of Public Works; (3) to certify to the Commissioner of Public Works the names of the three persons standing highest upon said register of eligibles for the office, excluding the name of Edward K. Manning.” In my opinion, the Civil Service Commission is wholly powerless to take such action after the head of the department has duly made an, appointment, pursuant to the certificate furnished him by the Commission, for after- such appointment has been made, the Commission has no control whatever over the appointee unless written charges are duly preferred against him; pursuant to the provisions of the statute. As was said by our Supreme Court in People eoo rel. Laist v. Lower, supra: “An appointment is complete when the last act required of the appointing power has been performed, and the authority to make the appointment has then been exhausted. In such a case the appointing power cannot revoke the appointment, and the one appointed can only be removed by lawful authority.”

If the writ of mandamus issues, as prayed for by the petitioner herein, and the Civil Service Commission accordingly does the things therein directed to be done, it will, of course, have the result of removing Manning from the position he now holds under the classified service. That result is inevitable. That situation is not altered by the fact, as petitioner argues, that this is merely a proceeding requiring the Civil Service Commission to perform certain ministerial acts in relation to the list of eligibles and in relation to the certification of that list. That the granting of the prayer of the petition will necessarily result in the removal of a civil service employee from the position he now holds cannot be denied and, in my opinion, it is equally certain that such action would be contrary to the express provision of our statutes to the effect that: “No officer or employee in the classified civil service of any city, who shall have been appointed under said rules and after said examination, shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense.” Illinois Statutes, J. & A. par. 1811. There is nothing in the record from which it would appear that the appointment involved was probationary. That Manning was appointed “under said rules and after said examination,” admits of no doubt. The petitioner’s contention that Manning was not certified and appointed acóording to the provisions of said rules, in my opinion, cannot be determined in a mandamus proceeding directed against the Commission after his appointment has been completed.


author: Mr. Justice Thomson Mr. Presiding Justice Taylor,

text:
    William E. Murawska, Appellant, v. William F. Boeger, Appellee.
    Gen. No. 25,185.
    1. Brokebs, § 40

      —when hrolcer is not entitled to compensation. In an action to recover a broker’s commission for the sale of real estate, held that in order to be entitled to a commission, the broker was bound to produce one who was ready, willing and financially able to make the purchase on the terms named by the owner of the property, and that he was not entitled to claim his commission by virtue of a contract between the owner and a third person, where it appeared that the broker had introduced such third person to the owner, that such third person had entered into an option contract with the owner, whereby he might buy in the property, or act as agent in securing a purchaser, who could and would consummate the transaction; and that said third person was instrumental in finding such purchaser to whom the property was subsequently sold, but on terms which varied materially from those originally submitted to the broker.
    2. Brokers, § 34*—what is essential to entitle hrolcer to commission. Commissions for procuring a purchaser of real estate cannot be recovered where plaintiff is not the efficient and procuring cause of the sale as it is finally consummated.
    3. Brokers, § 34*—when sale is not effected hy hrolcer. In an action to recover a broker’s commission for the sale of real estate, held that a broker cannot recover a commission from the owner of real estate where said property was subsequently sold to a person under a contract with which the broker had no direct or proximate connection, where it appeared that said purchaser was introduced to the owner by a third person, whom the plaintiff broker had introduced to the owner; that such purchaser had been introduced to said third person by a second broker; and that said purchaser and second broker had no knowledge of the plaintiff broker.
    4. Brokers, § 34*—what is proximate cause of act. The proximate cause of an act is that which produces it without the interposition of an independent agency, which is not the probable result of the first cause. It is the proximate cause of which the law takes notice and not the causa causarum. ■
    5. Brokers, § 34*—when sale of property is not effected by hrolcer. In an action to recover a broker’s commission for the sale of real estate, held that a broker cannot recover on a contract with the owner of real estate where the property in question is subsequently sold under an agreement, different in many respects from the one under which he testified he was employed to ■ perform, where it appeared that the broker was to receive a commission of 10 per cent if he secured the sale of the property in question at a price of $295,000, and that the person who finally agreed to take title had not been introduced by the broker to the owner and had agreed to pay $280,500.
    6. Brokers, § 42

      —what is effect of sale under different terms as to broker's compensation. Commission for procuring a purchaser for real estate cannot be recovered where the contract finally consummated is different from the one plaintiff was employed to accomplish.
    Taylor, P. J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Mastín M. Gbidley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed October 6, 1920.
    Rehearing denied October 19, 1920.
    Rice, Lowes & O’Neil, for appellant; Francis M. Lowes, of counsel.
    Charles M. Haft, for appellee.

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

This action was brought by the plaintiff, Murawska, against the defendant, Boeger, to recover a commission which the plaintiff claimed was due him on the sale of a cemetery known as the Oak Ridge Cemetery of Chicago. The cemetery was owned by a corporation, all the stock of which was owned by the defendant, his father and other members of the family. The down-town office of the cemetery company was in the National Life Building in Chicago. One Kirmse occupied an office with the cemetery company. The plaintiff, who was Kirmse’s son-in-law, was frequently in the offices to see him and on one.occasion, while the plaintiff was there, the defendant asked him if he wanted to make some money, "and in that connection he told him that the cemetery was for sale and suggested that he find a purchaser, in which case there “would be a good piece of money in it” for him. Shortly thereafter the plaintiff found one Reynolds, who said he was interested in buying the cemetery, and he subsequently introduced Reynolds to the defendant. The defendant told the plaintiff that the price of the cemetery had been fixed at $295,000. Reynolds had some negotiations with the defendant. He testified that he was wholly unable to malte the purchase himself and he entered into the negotiations without any thought of doing so but with the idea of securing an option on the cemetery by means of a small payment and thereafter finding a purchaser. The outcome of the negotiations between Reynolds and the defendant was the execution of .an option contract which recited the payment of $2,000 in cash by Reynolds. He testified, however, that the payment consisted of securities. Under the contract, Reynolds was given an option to buy the capital stock of the cemetery company and certain land adjoining the cemetery for $295,000, $2,000 in cash, $50,000 on January 1, 1918, and the balance in semiannual payments of $12,500 each. Under the terms of this contract the option was to become an agreement of sale and purchase and the stock was to be deposited in escrow, and the land referred to was to be conveyed to the cemetery company by the then owners, when the $50,000 payment was made, and also it was provided that payments made were to be forfeited if the succeeding payments were not made as agreed. The plaintiff testified that the defendant agreed to pay him a commission of 10 per cent and- Reynolds testified that in defendant’s presence the plaintiff told him that their arrangement was that he Vas to have a 10 per cent commission. Reynolds further testified that he and the plaintiff had an agreement whereby the plaintiff- was to share his commission with him,-— an arrangement of which the defendant had knowledge.

After Reynolds had signed his contract with the Boeger family, the plaintiff demanded payment of his commission of the defendant but the latter said that he could not afford to pay a commission of $29,500 on a contract under which only $2,000 had been paid. He offered to pay the plaintiff $200, which the latter declined, saying that he wanted his full commission whenever the contract was “closed up,” whereupon, the plaintiff testified, the defendant assured him that when the deal was closed up he would get his money. Later on the plaintiff again went to the defendant, saying that he understood that the sale of the cemetery had been consummated and demanded his commission, whereupon the defendant told him that he owed him no commission as the cemetery had been sold to one Anderson and not to Reynolds.

It was shown by the testimony of Reynolds, that after he closed his option contract with the Boeger family, he made an arrangement with the cemetery company whereby he became its sales manager and he then moved into the cemetery offices and went to work promoting the sale of cemetery lots. Anderson also testified for the plaintiff to the effect that he never met the plaintiff until some time after he purchased this cemetery; that he was introduced to Reynolds by one Stewart, a real estate broker, and that through Reynolds he met the defendant and as a result of that meeting he entered into negotiations for the purchase of the cemetery, which were finally consummated. The contract which Anderson entered into with the Boegers was for the purchase of the stock of the cemetery company and the land referred to and also a^l real and personal property of the cemetery company, for the sum of $280,500. It provided that $168,000 was to be paid in cash, and two tracts of land in Kane county, Illinois, were to be conveyed by Anderson on a valuation of $100,000; and he was to transfer to the Boegers $25,000 worth of stock in a new cemetery corporation to be formed by him. It was provided in the contract that if Anderson found a bona fide purchaser for the Kane county farms within a year, at a price of $112,500, he should have the option to buy the farms back at that figure, and in that event, upon payment of $12,500 with interest at 5 per cent from the date of the contract, the 25,000 shares of stock of the new company, above referred to, should be assigned to Anderson. The Reynolds option contract was dated September 5, 1916, and was a contract between the Boegers, as parties of the first part, and Reynolds as party of the second part. The Anderson contract was dated February 10, 1917, and was a contract between the cemetery company, party of the first part, the Boegers, individually, as parties of the second part and Anderson as party of the third part.

Before the execution of the Anderson contract, namely, on January 20, 1917, Anderson and Reynolds executed an agreement in writing wherein it was recited that whereas Reynolds had an interest in the option contract with the owners of the stock of the cemetery company and desired to turn over to Anderson any interest he might have in that contract for the purpose of enabling Anderson to deal direct with the stockholders of the cemetery for the purchase of its assets, therefore it was agreed that when Anderson should have finally consummated this purchase he would pay Reynolds $5,000, and transfer to him 2,500 shares of the stock of the new company; and further it was agreed that Reynolds would be appointed manager of the new company for a period of one year at a stipulated salary and also that he should be elected a director and vice president" of the company. This contract did not include any agreement on the part of Reynolds to assign any interest to Anderson which he might have under the option contract, nor did it contain any such assignment, and no such assignment was ever made. After the execution of the contract between Anderson, the Boegers and .the cemetery company, namely, on March 15, 1917, Reynolds executed an agreement; whereby he released the Boegers from any and all obligations or claims growing out of his previous contract with them.

These facts were all brought out by the plaintiff’s witnesses, consisting of Reynolds and Anderson in addition to himself. The suit was originally brought against all of the Boegers but at the close of the plaintiff’s case it was dismissed as to all of them except the appellee, to whom we have referred as the defendant. At the close of the plaintiff’s case the court allowed the defendant’s motion to instruct the jury to return a verdict in his favor and upon such verdict judgment was duly entered, from which the plaintiff has perfected this appeal.

In our opinion the action of the trial court in granting the defendant’s motion for a peremptory' instruction was proper. Under the arrangement which the plaintiff claimed he had with the defendant he ivas to receive the commission referred to in case he found a purchaser of the cemetery at the price of $295,000. It is clearly demonstrated by the evidence that the. plaintiff never found such a purchaser. He could not claim his commission, by virtue .of the contract ben tween the Boegers and .Reynolds.' To entitle him to a commission, the plaintiff was bound to produce one who was ready, willing and financially able to make the purchase on the terms named by the defendant. Marcy v. Whallon, 115 Ill. App. 437. He could not claim a commission under his arrangement with the defendant, upon producing Reynolds, whó merely entered into-, an option contract whereby he might purchase if he chose or, on the other hail'd, if he preferred, he might forfeit his initial payment and elect not to exercise his option. Lawrence v. Rhodes, 188 Ill. 96.

The plaintiff cannot recover a commission from the defendant on the basis of the Anderson contract for it was not made by the plaintiff and it is clear from the evidence that he was not the efficient and procuring cause of the deal between the Boegers and Anderson as it was finally consummated. West End Dry Goods Store v. Maun, 133 Ill. App. 544. The only thing the plaintiff did was to find Reynolds, who contracted for the option with the Boegers. Thereafter, another broker, Stewart, with whom it was not shown that the plaintiff had any connection, introduced Anderson, who says he knew nothing whatever of the plaintiff, to Reynolds and through Reynolds, Anderson was introduced to the Boegers. Under such a situation it is clear that the plaintiff was not the proximate cause of the consummation of the Anderson contract. The proximate cause of an act is that which produced it without the interposition of an independent agency not the probable result of the first cause. Baumgartel v. Hoyne, 54 Ill. App. 497. It can make no difference that it may be said that the plaintiff, in bringing Reynolds into contact with the defendant, furnished a cause which ultimately resulted' in Anderson getting into touch with the defendant through Reynolds, by means of Stewart, which may be said to be the proximate cause of the ultimate sale of the property. As was said in the latter case: “It is the proximate cause of which the law takes notice and not the causa causarum.” It was neither the plaintiff nor Reynolds that brought Anderson into this deal but Stewart, who had no connection with the plaintiff. If it had not been for Stewart, the sale to Anderson would never have been consummated. It can make' no difference that Anderson, through his broker Stewart, approached the defendant through Reynolds, rather than directly. A case very similar to the'one at bar is Peek v. Slifer, 122 Ill. App. 21, where it was held that the plaintiff could not recover the commission claimed.

A further reason why the plaintiff cannot recover in this case is to be found in the fact that the contract finally consummated with Anderson was different in many respects from the one which he testifies he was employed to accomplish. According to the plaintiff’s testimony he was to receive a commission of 10 per cent if he accomplished the sale of the property in question at a price of $295,000. The contract with Reynolds was not a sale contract but an option contract and, furthermore, it was never consummated. The Anderson contract was one involving the exchange of land on a valuation of $280,500. In this respect the facts involved were similar to those involved in Tooker v. Duckworth, 107 Mo. App. 231, where it was held that the plaintiff could not recover the commission for which he brought suit.

We have carefully examined Henry v. Stewart, 185 Ill. 448, and other.cases to which the defendant has called our attention, but in our opinion they are not in point. In Henry v. Stewart, supra, the sale of the property involved was made by the defendant directly to the party who was introduced „to the defendant by the plaintiff, and it was held to be immaterial that such party was acting for others. That, of course, is not the situation in the case at bar. It is of course true, as held in some of the cases to which the defendant has called our attention, that it is not necessary that the purchaser be actually introduced to the owner by the broker, provided it affirmatively appears that the purchaser was induced to apply to the owner, through the instrumentality of the broker or through means employed by him. Carter v. Webster, 79 Ill. 435; Hafner v. Herron, 165 Ill. 242. That proposition also was not involved here.

For the reasons stated the judgment of the superior court is affirmed.

Affirmed.

O’Connor, J., concurs.

Taylor, P. J., dissenting.

Mr. Presiding Justice Taylor,

dissenting: Anderson testified that he was introduced to the defendant, Boeger, by Reynolds and that before that time he knew practically nothing of the Oak Ridge Cemetery; from which it follows that all that took place subsequent to his meeting Reynolds was the result of the plaintiff having gotten Reynolds to take an option contract on the property in question. Everything that was done through Reynolds by Anderson may be said to have been done as the result of the complainant’s services in producing Reynolds and having the option contract obtained from the defendant. Anderson knew nothing of the matter save what he got through Reynolds, and Reynolds as a prospective purchaser was a creation of the complainant. The fact that Anderson was introduced to Reynolds by one Stewart is immaterial and entirely irrelevant. If Stewart had introduced Anderson to Boeger and at that time Boeger had the right to sell the property it would be an entirely.different situation, but as the option was outstanding and owned by Reynolds, and Anderson first became connected with the matter through Reynolds, it is obvious that whatever transpired thereafter was fundamentally dependent upon the services of the plaintiff in producing Reynolds. Without Reynolds, Anderson never would have come in contact with the defendant and as everything that was done through Reynolds was the same as though it were done through the plaintiff, it is quite obvious that the services of the plaintiff were the actual cause of the ultimate sale to Anderson. If the services of the plaintiff and Reynolds are stricken out there is a Matus. Anderson wdnld not even have known Boeger.

The contract of January 20, 1917, between Anderson and Reynolds, which was made prior to the contract between Anderson and the defendant, shows that Anderson received from Reynolds the option right without which he could not have purchased the property from the defendant. As, therefore, the actual, ultimate sale of the property was based in its inception, as far as Anderson and Boeger were concerned, upon the option given by the defendant to Reynolds as a result of the services of the plaintiff— and as a practical matter was the ripening of Reynolds’ option into a sale—it follows that in the eyes of the law the plaintiff must be considered the moving, procuring cause of the sale, and entitled to a commission. Strong evidence that the Reynolds’ option was basic is the fact that the very $2,000 he paid down when he got it was credited on the ultimate purchase price.

Believing that the evidence overwhelmingly demonstrates that .Reynolds, the creature of the plaintiff, was the conduit through which Anderson did reach, and could only reach, the defendant in order that the sale might take place, I am constrained to dissent.

That the terms of the sale were changed somewhat from what they were as expressed in the option contract, of course, was immaterial. Henry v. Stewart, 185 Ill. 448.