author: Mr. Justice Baume

text:
    Harry L. Hollister, Appellant, v. Marie L. Sobra, Appellee.
    Gen. No. 16,031.
    1. Judgments—equitable relief. It is not error to dismiss a bill for want of equity where relief is sought against the enforcement of a judgment on a note entered by default about eleven years before, where no fraud is imputed to the defendant in procuring the judgment and no lack of jurisdiction is alleged, but the bill affirmatively shows that when the judgment was entered every essential fact necessary to a defense was either a matter of record or could have been ascertained by slight diligence.
    2. Judgments—equitable relief. In general, fraud to be available for relief against a judgment at law must relate to the procuring of the judgment.
    3. Injunction—assessment of damages. Where no suggestion as to the nature and amount of damages occasioned by the issuancb of an injunction is filed and the defendant abides by the chancellor’s action in overruling a motion to dissolve and proceeds to a hearing on the merits, it is error to assess the damages at the value of the solicitor’s services in preparing the case for hearing and in the hearing.
    Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed in part and reversed in part, on rehearing.
    Opinion filed August 12, 1912.
    Elmer D. Brothers, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Emil A. Meyer, for appellee; Edward F. Dunne, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

On December 20,1907, appellant, Harry L. Hollister, filed his bill in equity against the appellee, Marie L. Sobra, in the Superior Court, alleging, in substance that on June 28, 1895, he entered into an agreement with appellee, which agreement was negotiated by Jos. B. Putnam & Co., as agents for appellee, by certain letters addressed to appellant and appellee, and accepted by them, as follows:

Chicago, June 28, 1895.

Mr. H. L. Hollister,

Chicago.

Dear Sir: We are authorized to make you the following proposition for the exchange of properties, to-wit: We will give you the premises at No. 1907 Michigan Avenue (residence) clear of all encumbrances, except an existing mortgage of Twenty-two Thousand Dollars ($22,000.00), and taxes of 1895. You to give her 50 lots in the city of Des Moines, subject to a mortgage of $2,500.00, and the taxes of 1895, and $6,000.00 (Six Thousand Dollars), in cash.

Yours truly,

Jos. B. Putham & Co.

I accept the offer.

H. L. Hollister.”

“Chicago, June 28, 1895.

Mrs. L. Sobra,

Dear Madam: We are authorized to make you the following proposition in exchange for your premises known as No. 1907 Michigan Avenue, viz: We will give you fifty (50) lots in the city of Des Moines, Iowa, subject to a mortgage of $2,500.00 at 5% per year, running five years from the date; also will give you $5,000.00 in cash, and assume the mortgage of $22,000.00 on the premises No. 1907 Michigan Avenue —each party will assume the taxes of 1895 upon the property received by each.

Very resp.,

Joseph B. Putham & Co.

I accept the above offer.

Marie Leoote Sobra.”

The bill further alleges that at the time of making said agreement appellant was a resident of Lansing, Michigan, and was not the owner of the fifty lots in the city of Des Moines, mentioned in said agreement, but had a bond for a deed for the title to said lots, and was negotiating the closing of an agreement for the purchase of the same, with the belief and expectation that within a reasonable time he would be able to convey the same to appellee, in accordance with, and within a reasonable time after said agreement was made; that appellant then stated said facts to appellee and to her said agents, and they then well knew and were fully informed by appellant that he could not immediately consummate said agreement, but that some time would necessarily elapse and that considerable time might elapse before he would be able to convey said lots; and that he was not informed or advised that there was any occasion for a speedy consummation of said agreement; that at the time of entering into said agreement appellee stated to appellant and to her said agents, that she was the owner in fee simple of the property at No. 1907 Michigan avenue, subject only to an encumbrance of $22,000.00, and that there were no other or further encumbrances thereon; that appellant relying on said statements and believing them to be true, and hot then and there having any knowledge or means of knowledge of their falsity, entered into said agreement; that within a few days after the making of said agreement, to-wit: In July, 1895, appellee stated to appellant that she had deposited with said Jos. E. Putnam & Co., in escrow, a good and sufficient deed of conveyance, conveying the fee simple title to the said property at 1907 Michigan avenue to him, and that said deed would be held by said Putnam & Co., to be delivered to appellant ■ as soon as he should place with said Putnam & Co., a like deed of conveyance of the said fifty lots in Des Moines to appellee, and frequently from time to time thereafter appellee demanded that appellant carry out said agreement, but appellant was unable to comply therewith by reason of the contemplated delays in procuring title to said lots; that by reason of said delay, on November 20,1895, appellee still alleging she was able, ready and willing to perform her part of the agreement, and that said deed was still in the hands of her said agents ready to be delivered to appellant, which said deed would convey to him fee simple title to No. 1907 Michigan avenue, subject only to an encumbrance of $22,000.00, claimed and pretended that she was damaged by reason of the alleged unreasonable delay, in the sum of more than $10,000.00, and then and there threatened to sue appellant to recover the said damages, but finally offered to compromise, as she called it, her alleged damages with appellant by giving appellant six months’ additional time in which to carry out his part of said contract, she in the meantime leaving said deed to appellant in escrow with said Putnam & Co., to be delivered to appellant as soon as and when he delivered a good and sufficient deed to her conveying said fifty lots in Des Moines, provided appellant would execute and deliver to said Putnam & Co., in escrow, the promissory note of appellant for $10,000.00, payable to the order of appellee due six months after date, to be returned to appellant on delivery of a good and sufficient deed from him to appellee of said fifty lots in Des Moines, at any time before the maturity of said note, and on default therein by appellant said note to be delivered by said Putnam & Co., to appellee on the maturity thereof, as liquidated damages alleged to have been sustained and to be sustained by appellee; and finally in acceptance of said offer, appellant still being unable to acquire title to the said lots in Des Moines, and fearing suit by appellee to recover said alleged damages, did then and there on November 26, 1895, make and execute his certain promissory note for $10,000.00, payable to the order of appellee, due six months after date, with interest at the rate of 6 per cent, per annum after due; and did then and there deposit the same with said Putnam & Co., to be held by them and delivered at the maturity thereof to appellee, in liquidation of her alleged damages sustained and to be sustained, provided appellant had not in the meantime been able to make the conveyance of said fifty lots to appellee; that the said note was executed by appellant in good faith and upon the representations of appellee that she had complied with the agreement of June 28,1895, and that she was then and there ready, able and willing to convey to appellant the fee simple title to said premises at No. 1907 Michigan avenue, in accordance with said agreement. The bill further alleges that when said note matured appellant was unable to convey the said fifty lots to appellee, and thereupon over the objections of appellant, said Putnam & Co., on May 28,1896, delivered said note to appellee, and then and there, stated to appellant that appellee had complied with and performed, and was then and there, and at all times had been ready and willing to comply with and perform, and then and there pretended to offer to appellant to comply with and perform her part of said agreement, and then and there pretended to tender and offer to appellant the said deed of said premises No. 1907 Michigan avenue; that all of these statements and representations made by the said appellee and said Putnam & Co., appellant believed, relied upon and accepted as being made honestly and in good faith; that the said Putnam & Co. were the agents of appellee and not the agents of appellant and no fee or com- ■ mission of any kind was paid or promised by appellant to the said Putnam & Co. The bill further alleges that appellant having failed to pay said note . at maturity, appellee, on June 26, 1896, brought suit thereon in the Superior Court of Cook County, Illinois, and appellant, believing that appellee had complied with her part of the said agreement of June 28, 1895, and relying on her statements in that behalf, did not defend said suit, but allowed the same to go by default, and on July 26, 1896, judgment was entered against appellant and in favor of appellee for $10,075.00 and costs of suit; that appellant was unable to pay said judgment at that time, or any part thereof, ■ and after an execution had been issued and returned unsatisfied, appellee filed a creditor’s bill based upon said judgment against appellant and others; that during the year 1902 appellant still believing that appellee had always acted in good faith, made several payments aggregating $530.00 on account of said judgment ; that thereafter appellee filed two several credit- or’s bills against appellant and others; that a period of seven years having elapsed since the entry of said judgment and appellant having only been able to make the payments on account of said judgment as aforesaid, and nothing having been realized thereon through said creditor’s bills, appellee, on April 30, 1904, started suit in the Superior Court to revive said judgment; that appellant, not knowing of the facts hereinafter alleged was not able successfully to defend said suit to revive said judgment, and on January 23, 1906, a judgment of revivor was entered in said court in favor of appellee and against appellant; that on July 23, 1906, appellee filed in the said Superior Court a fourth creditor’s bill against appellant and others, based upon said judgment, which said creditor’s bill is still pending and undetermined in said court; that ' since the last creditor’s bill, appellant, during the year 1907, made several payments aggregating $2,200.00 on account of said judgment. The bill further alleges that on or about November 1, 1907, through a suit brought by appellee against Jos. E. Putnam, concerning, the dealings between appellee and said Putnam with reference to the agreement of June 28, 1895, appellant discovered and learned for the first time that all of the acts and doings of appellee and all her material statements in connection with said agreement were deceitful and fraudulent, and that appellee then knew and ever since had known that the same were deceitful and fraudulent, and that it was then and since the purpose of appellee to obtain the money of appellant through deceit and fraud. The bill then alleges the facts so coming to his knowledge on November 1, 1907, and which were previously unknown to him, as follows: That appellee did not make, execute and deliver a good and sufficient deed of conveyance of said premises at No. 1907 Michigan avenue, and place the same with said Putnam & Co., within a few days after June 28, 1895, as she stated and represented to appellant she had done, but that said alleged deed of conveyance was not delivered to said Putnam & Co. until on or about August 26, 1895; that when said alleged deed of conveyance was delivered to said Putnam & Co., on or about August 26, 1895, the same showed that there was an encumbrance on the said premises at No. 1907 Michigan avenue, amounting to at least $6,120.34 in excess of the said sum of $22,000.00, which said appellee had represented to appellant was the sole and only encumbrance thereon; that on June 28, 1895, when appellant entered into the said agreement with appellee, the premises at No. 1907 Michigan avenue had been foreclosed for an indebtedness of appellee, and the time for redemption by appellee had almost expired and did expire on July 24, 1895; and that at the time when appellee executed said alleged deed of conveyance and delivered the same to Putnam & Co., on or about August 26, 1895, she had no right, title or interest whatsoever in said premises at No. 1907 Michigan avenue.

The bill further alleges that appellee is wholly insolvent, and prays that she may be perpetually enjoined from collecting said judgment from appellant, and from having any execution issued thereon and from taking any steps of any kind or nature whatsoever toward the collection of the said judgment; that the said judgment may be set aside, cancelled and set at naught, and declared null and void; that appellee may be perpetually enjoined from further prosecuting the said creditor’s bill pending in the Superior Court; that appellee may be ordered, adjudged and decreed to pay to appellant the sums of money so paid by him to her on account of said judgment, with interest at the rate of 5 per cent, per annum on each of said payments from the time the same was made, etc. An injunction was awarded appellant in accordance with the prayer of the bill. Thereafter appellee interposed a demurrer to the bill, and also filed her motion to dissolve the injunction. The demurrer to the bill was overruled and the motion to dissolve the injunction was denied. Appellee then answered the bill, denying its material allegations, and to such answer appellant filed his general replication. Appellee then further filed her suggestion of damages for wrongfully suing out the injunction. The cause having been heard by the chancellor upon the pleadings and proofs, a decree was entered wherein it was ordered and adjudged: (1) that the injunction was wrongfully sued out, and the same be dissolved; (2) that appellee had sustained damages thereby in the sum of $1,250.00 which she should recover from appellant, and (3) that the bill be dismissed for want of equity.

The decree is predicated solely upon a finding by the chancellor that as the records were open to appellant whereby he might have ascertained the condition of. the title to the premises known as No. 1907 Michigan avenue, at the. time judgment was entered against him upon the note, he should have presented his defense at that time; and that his failure to then present his defense constituted a bar to the relief sought by the bill.

Although the evidence relating to the allegations of fraud in the bill is conflicting, it may be conceded upon this appeal that the material allegations of the bill are true.

If the present proceeding was one instituted in apt time to cancel and rescind the note for $10,000.00 executed by appellant, upon the ground that the same was procured by fraud, the authorities relied upon by appellant in support of his contention that the facts alleged and established warranted the interposition of a court of equity, would be in point, but the only relief sought by the bill relates to the enforcement of a judgment by default in a suit upon said note, in a court of competent jurisdiction. No facts are alleged in the bill, which impute any fraud to appellee in procuring the judgment, and it is not claimed that the Superior Court did not have jurisdiction of the person of appellant in the suit wherein said judgment was obtained. It affirmatively appears from the allegations of the bill that at. the time the judgment was entered every essential fact necessary to a defense by appellant against said note, was either a matter of record, or could have been ascertained by him by the exercise of the slightest diligence on his part.

In Kretschmar v. Ruprecht, 230 Ill. 492, it is said:

“Equity will not relieve against a judgment at law, except in case of fraud, accident or mistake, and then only where the party applying for relief is free from all negligence.” “It is not enough that the judgment is unjust; it must have been obtained without negligence on the part of the appellant to entitle to relief. ’ ’

Generally speaking, fraud, to be available as a ground for relief against a judgment at law, must relate to the procuring of the judgment.

In considering the class of cases wherein the fraud of the prevailing party is relied upon for relief against a judgment at law, Mr. Freeman says: “The fraud for which a judgment may be vacated or enjoined in equity must be in the procurement of the judgment. If the cause of action be vitiated by fraud, this is a defense which must be interposed, and unless its interposition be prevented by fraud, it cannot be asserted against the judgment. Freeman on Judgments, Sec. 489.

The chancellor did not err in dismissing the bill for want of equity.

Following the dismissal of the bill upon the hearing on the merits, the injunction was continued in force pending the final disposition of the case on appeal. Appellee filed no suggestions as to the nature and amount of her damages occasioned by the issuance of the injunction, but acting upon the theory that an award of damages not exceeding 10 per cent, of the amount of the judgment enjoined, was imperative under the provisions of Section 8, Chapter 69, of the Revised Statutes relating to the award of damages on the dissolution of an injunction to enjoin a judgment, the chancellor proceeded to hear evidence as to the reasonable value of appellee’s solicitors’ fees for their entire services in preparing for the hearing of the case and in the hearing of the same upon its merits, and fixed the amount of appellee’s damages therefor at $1,250.00. This was error.

In Fry v. Radzinski, 219 Ill. 526, relied upon by appellee in support of the procedure adopted, the damages awarded covered merely the services of counsel in procuring a dissolution of the injunction upon motion. In the case at bar the motion interposed by appellee to dissolve the injunction was overruled, and appellee abided the action of the chancellor in that regard, and proceeded to the hearing of the case upon its merits.

Expressions in Smith v. Powell, 50 Ill. 21, and in Shaffer v. Sutton, 49 Ill. 506, and in Forth v. Town of Xenia, 54 Ill. 210, cited by appellee, to the effect that damages may be assessed under Section 8 without regard to the pleadings and evidence, and that no suggestion as to the damages sustained on the basis of compensation is necessary, are expressly disapproved in Reed v. New York Exchange Bank, 230 Ill. 50.

That portion of the decree dismissing the bill for want of equity is affirmed, and that portion of the decree awarding damages of $1,250.00 to appellee is reversed.

Decree affirmed in part and reversed in part.

Affirmed m part and reversed in part.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    The American Trust & Savings Bank, Trustee in Bankruptcy, Appellant, v. The Lantry Contracting Company, Appellee.
    Gen. No. 16,333.
    1. Compromise—effect. Where a compromise agreement concerning disputed matters pending litigation is entered into in good faith, neither party can go back of the agreement and inquire into the merits of the original controversy.
    2. Compromise—validity. In an action on a bill of exchange given pursuant to a compromise agreement concerning the amount due, the fact that prior to the compromise an agent of one of the parties had directed an agent of the other to apply part of a certain draft to the credit of an account covered by the agreement is not conclusive as to the invalidity of the agreement.
    3. Corporations—notice of order by agent. A company is chargeable with notice of an. order given by an officer and agent thereof to another company.
    4. Compromise—when valid. A bill of exchange given pursuant to a compromise as to money due is valid if the compromise was entered into without actual or constructive fraud though the claim could not have been enforced.
    5. Compromise—fraud. No fraud invalidating a compromise of a disputed amount due on account can be predicated upon the' contention by one party that it had not been directed to apply a certain payment to the account where the other party at the time of the settlement knew of such contention and knew that the application had not keen made.
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed with finding of fact.
    Opinion filed May 15, 1912.
    Frank T. Murray and William A. Bither, for appellant.
    Helmer, Moulton, Whitman & Whitman, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit in attachment, wherein the Atchison, Topeka & Santa Fe Railway Company was summoned as garnishee, instituted in the Municipal Court by the American Trust and Savings Bank, trustee in bankruptcy for the Contractors Supply & Equipment Company, against The Lantry Contracting Company, to recover the amount of a bill of exchange, as follows:

“The Lantry Contracting Co.,
Paola, Kansas, Aug. 29, 1908.
C. A. Morse, Chiee Engineer,
Topeka, Kansas.
Dear Sir:
Please pay to The Contractors Supply & Equipment Company, Thirty-Eight Hundred Seventeen 69/100 Dollars, same being in full of all claims against The Lantry Contracting Company, and charge to our account.
It is understood that the garnishment suit brought by said Contractors Supply & Equipment Company is to be dismissed at Cost of said Company.
The Lantry Contracting Company,
By T. T. Kelly,
Secretary and Treasurer.”

Upon a trial by jury there was a verdict for defendant and judgment against the plaintiff for costs, to reverse which judgment it prosecutes this appeal.

The declaration consists of the common counts and a special count on the instrument sued on. Appellee pleaded the general issue, and special pleas of set-off, and that the debt evidenced by the bill of exchange had been paid before the same was given, and that The Contractors Supply & Equipment Company had' then fraudulently concealed from appellee the fact of such payment.

In 1907 and thereafter the Contractors Supply & Equipment Company (hereinafter called the Supply Company) was engaged in the manufacture and sále of supplies and machinery for use by general contractors. During the same time appellee, The Lantry Contracting Company, a corporation (hereinafter called the Contracting Company) was engaged in doing certain work for the Atchison, Topeka & Santa Fe Railway Company at Lynn, New Mexico, and The Lantry Construction Company, a corporation (hereinafter called the Construction Company) was engaged in doing certain work at Duluth, Minnesota. Charles J. Lantry, who was president and general manager of both of said corporations, was, during the same time, personally engaged in performing a contract at Pembroke, Virginia, for the Tidewater Construction Company. At the place last named Lantry was doing business as the Lantry Ballast Company (hereinafter called the Ballast Company). From time to time the Contracting Company, the Construction Company and the Ballast Company placed orders with the Supply Company for supplies and machinery to be shipped to the several points where work was being done, and all such shipments were charged on the books of the Supply Company to the Contracting Company, and memoranda made as to the place of shipment of each item charged. The amount charged for supplies and machinery shipped to the Construction Company at Duluth was paid to the Supply Company by said Construction Company, and is not here involved. On September 21, 1907, orders for supplies and machinery had been placed by Lantry with the Supply Company for shipment to the Ballast Company at Pembroke, Virginia, amounting to over $9,000, but only shipments to the amount of $649.50 had then been made, and all the shipments thereafter were made upon a credit of thirty days. There was also then due to the Supply Company approximately $4,399.60, for supplies and machinery theretofore shipped to Lynn, New Mexico. On that day the Supply Company, at the direction of Lantry, made its draft, on the Tidewater Construction Company for $9,300, and credited said amount generally to the account of the Contracting Company, which account then showed a credit balance in favor of the Contracting Company of $2,725. Shortly thereafter* the Supply Company, without apparent authority so to do, turned over $627 of the amount standing to the credit of the Contracting Company to the Interstate Equipment & Engineering Company, a corporation controlled by the officers and stockholders of the Supply Company, in payment for some supplies shipped by said Interstate Equipment Company to the Ballast Company. On October 8, 1907, after the payment of $9,300 by the Tidewater Construction Company to the . Supply Company, the Contracting Company sent to Lantry a draft for $4,399.60 in payment of the balance then due from the Contracting Company to the Supply Company, the proceeds of said draft being retained by Lantry. The controversy here involved relates solely to this item of $4,399.60.

On February 1, 1908, the Supply Company sent to the Contracting Company a statement of account, wherein it was made to appear that the Contracting Company was indebted to the Supply Company in the sum of $10,407.78, which amount included said item of $4,399.60; also items aggregating about $2,000 for supplies and machinery shipped to the Construction Company at Duluth, Minn., and also items aggregating about $4,000 for supplies and machinery shipped to the Ballast Company at Pembroke, Ya. At that time Lantry was financially embarrassed. His official relations with the Contracting Company and the Construction Company had ceased, and he was ill in a sanitarium and unable to transact business. After the receipt of the above statement by the Contracting Company, and in response to repeated demands by the Supply Company for a settlement, John A. Maley, acting for the Contracting Company, had several interviews with George C. Marsh, the general manager of the Supply Company, wherein Maley claimed that the Contracting Company had paid the sum of $4,399.60 to the Supply Company through Lantry, and that Lantry had informed the officers of the Contracting Company that he had paid said amount to the Supply Company on September 21, 1907. Marsh denied that such payment was made by Lantry, and as the draft for that amount did not come into the possession of the Supply Company, it was assumed that Lantry had wrongfully converted the amount to his own use. Suit in attachment had been instituted by the Supply Company against the Contracting Company, and the Atchison, Topeka & Santa Fe Railway Company had been summoned as garnishee and answered that it was indebted to the Contracting Company in a sum exceeding $6,000. This suit was dismissed May 18, 1909, prior to the commencement of the present suit.

On August 28, 1908, while negotiations for a settlement of the claim of the Supply Company against the Contracting Company were pending between Marsh and Maley, Marsh severed his connection with the Supply Company, and on the following day negotiations for a settlement of the claim were resumed by Maley with George D. Smith, who succeeded Marsh. On behalf of the Contracting Company, Maley claimed certain charges were improperly made, and that the Contracting Company was entitled to certain deductions. After concessions made by each, Maley and Smith, without reference to said item of $4,399.60, it was finally agreed that there was due from the Contracting Company to the Supply Company the sum of $3,817.09. Immediately thereafter, on the same day, Maley wired T. T. Kelly, the secretary and treasurer of the Contracting Company, to mail to the Supply Company an order upon the chief engineer of the Atchison, Topeka & Santa Fe Railway Company for said sum of $3,817.69, and in response to such wire Kelly made out and mailed the said order to the Supply Company. On September 1st, following, Maley located Lantry, and upon being informed by the latter that he had paid the Supply Company $4,399.60 on September 21, 1907, Maley wired Kelly to stop payment on the order. Payment on the order was stopped by Kelly and this suit upon the order followed.

Lantry testified that all of his business transactions with the appellant, Supply Company, were conducted through Marsh, the general manager of said company. He further testified that on September 21, 1907, when he instructed Marsh to draw upon the Tidewater Construction Company for $9,300, he directed Marsh to place $4,399.60 of the amount realized upon said draft to the credit of the account of the Contracting Company, in payment of the amount due for the previous month; that immediately thereafter he notified the Contracting Company he had paid said amount to the Supply Company, and the Contracting Company reimbursed him for such payment.

Marsh, called as a witness for appellant, testified that he did not remember any specific conversation in which Lantry told him to credit said amount upon the account of the Contracting Company, and that he did not remember having instructed any one to have it done. On cross examination he testified that he could not state from present recollection that Lantry did not tell him to place the $4,399.60 on the account of the Contracting Company; that Lantry probably said to credit it to the accounts.

If the controlling question in the case was whether or not Lantry in fact directed Marsh to apply $4,399.60 of the draft for $9,300 to the credit of the appellee, Contracting Company, the verdict of the jury might well be held to be conclusive against appellant, but that question is not controlling.

It is conceded that the bill of exchange or order sued on was given in pursuance of the compromise agreement with reference to disputed matters pending litigation between the parties, and it is well settled that where such compromise agreement has been entered into in good faith, it is not permissible for either party to go back of such agreement and inquire into the merits of the original controversy. Dyrenforth v. Palmer Tire Co., 240 Ill. 25; Bingham v. Browning, 197 Ill. 122.

Appellee insists that it was induced to make said bill of exchange by the fraud perpetrated upon it by appellant, and that as the debt which said bill of exchange was given to liquidate had in fact been paid to appellant, the bill of exchange was without consideration. While the item of $4,399.60 was the main subject of controversy between the parties, it was not the only matter in dispute that was covered by the compromise agreement. We shall not, however, discuss this latter phase of the controversy, but will only consider the questions of fraud and want of consideration.

On September 21, 1907, when Lantry claims to have directed appellant to credit the account of appellee with $4,399.60, he was the president and general man- • ager of appellee, and as appellee could only act through its officers and agents, it was then chargeable with actual knowledge that such direction had- been given. The written statements sent by appellant to appellee February 1,1908, and May 1, 1908, show that said amount had not in fact been credited to the separate account of appellee for supplies and machinery shipped to it, but had been credited to the general ' account of all shipments kept in the name of appellee. A controversy then immediately arose as to said item of $4,399.60, and such controversy continued until, and was directly involved in, the compromise agreement of August 29, 1908, when the bill of exchange was given. The only ground for imputing any fraud to appellant is that it persistently insisted that it had not been directed by Lantry to credit appellee’s separate account with $4,399.60. The separate account of appellee had not been so credited, and it had long since been so advised. Appellee did not claim that the draft for $4,399.60, sent by it to Lantry, had been turned over to appellant.

It is manifest from this record that the persistent insistence on the part of appellant that it had not been directed by Lantry to credit appellee’s separate account with $4,399.60 was made in entire good faith. The controversy related to a pure question of fact asserted by appellee and denied by appellant with equal good faith.

There is no pretense that appellant was responsible for the inability of appellee to communicate with Lantry with reference to the matter in controversy, and the evidence discloses that when Maley saw Lantry on September 1, 1908, the latter merely reiterated his statement made to appellee on September 21, 1907, that he had paid the amount in controversy by directing Marsh to apply so much of the draft for $9,300 to the credit of appellee’s separate account. At the time the compromise agreement was entered into the parties stood upon equal ground. There was no known concealment by appellant of any material fact within its knowledge.

In Walker v. Shepard, 210 Ill. 100, it is said:

“Where a claim is asserted by one party against another, if the party making the claim.honestly supposes that he has a good cause of action, compromise and satisfaction of the right asserted is a sufficient consideration to uphold a contract fairly entered into, even if, in fact, his claim could not have been enforced, either in whole or in part, at law or in equity. ‘The compromise of a doubtful right, where there is neither actual nor constructive fraud and the parties act in good faith, is a sufficient consideration to support a promise.’ McKinley v. Watkins, 13 Ill. 140; Honeyman v. Jarvis, 79 Ill. 318; Adams v. Crown Coal & Tow Co., 198 Ill. 445. Where a compromise has been entered into in good faith, a court will refuse to regard the merits of the controversy upon which the compromise was effected, as being open for litigation between the parties. Adams v. Crown Coal & Tow Co., supra. Where the compromise agreement is attacked, however, and it appears that the claim which has been settled was not made in good faith, but was asserted as a mere pretense to extort money or induce the conveyance of property, the transaction will not be upheld. 8 Cyc. 509; 6 Am. & Eng. Encyc. of Law (2nd Ed.) 714; Knotts v. Preble, 50 Ill. 226; Adams v. Crown Coal & Tow Co., supra.”

The doctrine announced in the Walker case is peculiarly applicable to the facts disclosed by this record and is conclusive of the right of appellant to recover upon the instrument sued on.

Appellant’s motion at the close of all the evidence to instruct the jury to find the issues for it and to assess its damages at the amount due upon the bill of exchange should have been allowed and the peremptory instruction tendered with such motion should have been given.

The judgment of the Municipal Court will be reversed with a finding of facts to be incorporated in the judgment of this court, and final judgment will be entered in this court in favor of appellant and against appellee for $4,517.53, together with costs, and also judgment for the like amount, together with said costs, in favor of appellee for the use of appellant against the Atchison, Topeka & Santa Fe Railway Company, garnishee; and as to the residue of the sum of $6,000 due from said garnishee to appellee that appellee have judgment against said garnishee therefor.

Judgment reversed with finding of facts and final judgment in this court.

Finding op Facts: We find as ultimate facts that appellee is indebted to appellant in the sum of $4,517.53 for principal and -interest upon the bill of exchange sued on; that the Atchison, Topeka & Santa Fe Railway Company, as garnishee herein, is indebted to appellee in the sum of $6,000; that appellant was not guilty of any fraud whereby appellee was induced to enter into the compromise agreement wherein the bill of exchange sued on was given by appellee, and that said compromise agreement constitutes a good and sufficient consideration for said bill of exchange.


text:
    The Delta & Pine Land Co. v. Henry P. Benton et al. On Appeal of Clarence A. Tuttle, Executor, Appellant, v. Charles W. Ward and Harriott S. Ward, Appellees.
    Gen. No. 16,407.
    1. Tbusts—when precise words creating not significant. The precise words used to express manifest intention to create a trust are of minor significance when the donor’s son-in-law is the trustee and the beneficiary is his granddaughter.
    2. Tbusts—when no implication that do not take effect in praenenti. Even if a donor of stock in trust reserved the right to the dividends during his lifetime, that fact raises no implication that the gift was not to take effect in praesenti, hut emphasizes the intention that the gift should be absolute.
    3. Tbusts—when trust in praesenti created. A trust in praesenti is created where the language employed does not suggest that a gift of stock was other than absolute and to become effective immediately, the certificates were delivered and transferred on the books and the subject-matter and the immaturity of the beneficiary suggest that the gift should properly be in trust.
    4. Tbusts—when gift is inter vivos. A gift in trust is inter vivos though made in contemplation of death if the donor manifests an intention that the gift shall be absolute and effective in praesenti.

    5. Tbusts—when gift not causa mortis. A gift of stock in trust is not causa mortis where the language of the donor shows an intention that the gift shall be absolute and effective in praesenti' and where the certificates are delivered and transferred on the books though such gift was made “in contemplation of death.”
    6. Tbusts'—when gift not void as against widow. A gift of stock in trust to the testator’s granddaughter inter vivos though in contemplation of death is not void as against the widow, where the gift was not colorable but was absolute and in consideration of love and affection and where property was retained out of which a suitable provision was made for the widow.
    Appeal from the Superior Court of Cook County; the Hon. Geobge A. Dubuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    Certiorari.denied by Supreme Court (making opinion final).
    Steere, Williams & Steere and Edwin White Moore, for appellant.
    Holland & Elliott, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

In 1902, The Delta and Pine Land Company, a Mississippi corporation, filed its bill of interpleader in the Superior Court against Henry F. Benton, Susan D. Benton, Alphonso L. Benton, Harriott S. Ward and Charles W. Ward and Henry P. Merriman, executors of the will of George C. Benton, deceased, wherein it alleg’ed that George C. Benton, deceased, in his lifetime was the owner of 2,000 shares of its capital stock, and had transferred 950 shares of said stock to his brother Henry F. Benton, 50 shares to his brother Alphonso L. Benton, and 1,000 shares to Charles W. Ward, and that said shares of stock so transferred stood on the books of the corporation in the names of said transferees, respectively; that Susan D. Benton, the widow of said George C. Benton, deceased, had notified complainant that she claimed an interest in the shares of stock so transferred to Henry F. Benton and Charles W. Ward, and demanded of complainant the dividends thereon; that Charles W. Ward had notified complainant that as executor of the will of George C. Benton, deceased, he claimed the shares of stock transferred to Henry F. Benton; that complainant was informed that Harriott S. Ward, a minor, claimed some interest or title in some of said shares of stock, the nature of which claim of title was to complainant unknown; that dividends had been declared on said stock, payable partly in promissory notes, and that an action at law had been commenced against complainant by said Charles W. Ward to recover said dividends; that complainant was willing to pay said dividends to such person or persons as should be- entitled thereto, as the court should direct, and offered to bring the same into court, etc.

All of said defendants answered said bill of inter-pleader, and Susan D. Benton also filed her cross-bill, wherein she alleged that the said shares of stock so transferred by George C. Benton, deceased, to Henry F. Benton and Charles W. Ward, were gifts causa mortis, without consideration, made by said George C. Benton, when he was in his last illness and because of his apprehension of a speedy dissolution, and for the purpose of unlawfully depriving said Susan D. Benton of her share thereof as his widow and heir, and with the expectation and intention of receiving the dividends thereon during his lifetime, and of resuming full possession of said shares of stock in the event of his recovery, and said gifts were, therefore, invalid as to her.

Answers were filed to said cross-bill by Henry F. Benton, by George Ward and Henry P. Merriman, as-executors of the will of George C. Benton, deceased, and by George C. Ward individually, and by Walter Ayer as guardian ad litem of Harriott S. Ward.

The answer of Charles W. Ward admits the transfer to him by George C. Benton, deceased, of 1,000 shares of said stock, but avers that said shares of stock were given to him irrevocably in trust for his daughter, Harriott S. Ward, the granddaughter of said George C. Benton, deceased, and denies that said gift was in fraud of the rights of said Susan D. Benton, deceased.

A decree was entered sustaining the bill of inter-pleader and ordering the defendants thereto to inter-plead and adjust their several claims in controversy.

In 1907, Susan D. Benton, the widow of George C. Benton, deceased, died testate, and thereupon Clarence A. Tuttle, the executor of her will, was substituted as cross-complainant.

. The matters in controversy relative to the gift by George C. Benton, deceased, to Henry F. Benton of 950 shares of stock, were amicably adjusted between the parties, and the issues remaining to be determined between Tuttle, as executor of the will of Susan D. Benton and Charles W. Ward and Harriott S. Ward, were referred to the master to take and report the proofs together with his findings thereon.

The master found that the gift of 1,000 shares of said stock by George C. Benton in his lifetime to Charles W. Ward was a gift inter vivos to the latter in trust for .Harriott S. Ward; that said gift was one which said George C. Benton had a lawful right to make and was not in fraud of the rights of his widow, Susan D. Benton, and concluded with a recommendation that a decree be entered dismissing the cross-bill of Clarance A. Tuttle, as executor, at his costs for want of equity. The exceptions filed by said cross-complainant to the Master’s report were overruled by the chancellor, and certain exceptions filed thereto by the defendants, Charles W. and Harriott S. Ward, were passed without any ruling thereon, because not deemed necessary to the disposition of the questions involved, and a decree was entered in accordance with the master’s recommendations. Clarence A. Tuttle, as executor of the will of Susan D. Benton, deceased, prosecutes this appeal to reverse said decree.-

In re Estate of George C. Benton, deceased, 231 Ill. 366, involved the imposition of a tax under the Inheritance Tax law upon the gift of the 1,000 shares here in question, and it was held that the gift was made by George C. Benton, deceased, in contemplation of his death, and that the tax was properly imposed upon it. The facts disclosed by the evidence in the case at bar are not materially variant from the facts as stated by Mr. Justice Vickers, in the opinion of the court in the tax case, and we here adopt such statement.

Alphonso L. Benton, a brother of George C. Benton, testified that he had a talk with George C. Benton, within a month preceding his death, concerning a gift or transfer to Charles W. Ward of the 1,000 shares of stock in question; that he then said he had given to Ward, in trust for his daughter, Harriott, $100,000; that he had nothing to show for it, but he had Ward’s word of honor that he would care for it for his daughter, Harriott; that it was in trust to him (Ward); that he said afterwards there was an understanding between them that he should have the income, if he needed it, from that during his lifetime; that he did not say that was a condition of the gift, but that that was the understanding afterwards between him and Ward.

William A. Purcell and Leila Benton testified that George C. Benton made substantially similar statements to them with reference to the gift of said 1,000 shares of stock to Ward.

The testimony of Charles W. Ward in a prior proceeding in the Probate Court relative to said gift was offered in evidence by appellant in the hearing before the master, and it appears therefrom that upon the occasion of the gift to him of said 1,000 shares of stock, George C. Benton said with reference thereto: “Now, I am giving this to you, and I want you to promise me that you will give it to your daughter Harriott,” and that he (Ward) so promised.

First: It is urged that no trust in praesenti was created by the terms of the gift.

The two certificates, one for 350 shares and one for 650 shares, had been regularly transferred upon the books of the corporation to Ward when they were delivered to him by George C. Benton. There was an actual change of possession and delivery of the certificates as a gift, and there is no suggestion in the language employed by the donor when the certificates were delivered, that the gift was other than absolute and irrevocable, or that it was not to become effective immediately.

Harriott A. Ward, the granddaughter of the donor, and the intended beneficiary of the gift, was a minor seven years of age. The subject-matter of the gift and the immaturity and incapacity of the beneficiary obviously suggested that the gift should properly be made in trust to her father for the use and benefit of such beneficiary. More apt language might have been employed by the donor to express his manifest intention to create a trust for his granddaughter, and to determine the scope of such trust, but when the intimate relation existing between the parties involved is considered, the precise language employed is of minor significance. In Trubey v. Pease, 240 Ill. 513, the law was announced as “well settled that title to personal property by gift may be passed by delivery of it by the owner to another as trustee for the donee. In such case, delivery to the trustee is deemed in law delivery to the donee, and divests the donor of all control over or right or title in the property, and the gift is irrevocable.” It is there further said: “Whether a trust exists is to be determined from the proof, having in view all the surrounding facts and circumstances, and the intention of the parties, and the proof must be clear and explicit. The words or acts relied upon as creating the trust must show clearly and unequivocally the intention of the donor.”

In Orr v., Yates, 209 Ill. 222, it is held that no particular form or words are necessary to create a trust.

Mr. Pomeroy says: “No precise form of words is necessary to create a trust but the intention must be clear. No technical words need be used even the words ‘trust’ or ‘trustee’ are not essential.” Pomeroy’s Eq. Jur. (3rd Ed.) 1009.

If it be conceded, contrary to the findings of the master, that the donor reserved the right to the dividends upon the stock during his lifetime, such fact raises no implication that the gift was not to take effect in praesenti. Stock v. Seegar, 99 Ill. App. 353; Martin v. Martin, 170 Ill. 18; Hall v. Hall, 118 Ill. App. 544; Seavey v. Seavey, 30 Ill. App. 625. Indeed, a reservation of the dividends only serves rather to emphasize the intention of the donor that the gift of the principal should be absolute and irrevocable.

Although the motives which prompted the gift in question and the gift of 950 shares of stock to Henry F. Benton made at about the same time were the same, the gifts were different in terms and effect. The gift to Ward, in trust for Harriott, was absolute, unconditional and operative in praesenti, while the gift to Henry F. Benton was to become effective for distribution, as was said by the donor, “When I pass away and my debts are paid.”

Second: It is insisted that the gift in question was a gift causa mortis, because it was made by the donor in contemplation of death and that the distinguishing feature of such a gift, viz., that it is conditional and only becomes effective upon the death of the donor, necessarily attached. It would serve no useful purpose to enter into an extended discussion of the much mooted question relating to the precise physical condition and mental attitude of a donor of personal property necessary to constitute a gift causa mortis as a matter of law; whether the donor must be “m ex-tremis,” or “in his last sickness,” or “on his deathbed,” or must be in apprehension of “immediate death,” or “speedy death,” or in fear of “immediate danger then imminent,” or whether, as in the case at bar, a gift made merely “in contemplation of death” is sufficient. That a gift, although made in contemplation of death, is a gift inter vivos, if the donor manifests an intention that the gift shall be absolute, irrevocable and effective in praesenti, cannot be questioned. Estate of Merrifield v. The People, 212 Ill. 400. In In re Estate of Benton, supra, it was said: “The contention that a gift made ‘in contemplation of death’ should be construed as equivalent to a gift causa mortis is, we think, more plausible than sound.”

We are clearly of opinion that the gift here involved was a gift inter vivos and not a gift causa mortis.

Third: It is contended that, even though the transaction be held to constitute a gift inter vivos, that, as it was made in contemplation of death without a valuable consideration, and for the purpose of defeating the rights of the donor’s widow, as his heir, in the event she renounced the provisions of his will in her favor, it was void as against her.

As applied to the facts in this case, we conceive the rule announced in Padfield v. Padfield, 78 Ill. 16, reaffirmed in Blankenship v. Hall, 233 Ill. 116, to be decisive against appellant’s contention.

In the former case it is said: The doctrine is correctly stated in Kerr on Fraud and Mistake, 220, in a note. It is there said: “There can be no doubt of the power of a husband to dispose absolutely of his property during his life, independently of the concurrence, and exonerated from the claim of his wife, provided the transaction is not merely colorable, and be unattended with circumstances indicative of fraud upon the rights of the wife. If the disposition of the husband be bona fide, and no right is reserved to him, though made to defeat the right of the wife, it will be good against her.” In the case at bar, as we have heretofore held, the gift was not colorable, but was absolute and irrevocable. It was made by the donor upon good and sufficient consideration, viz., love and affection for his granddaughter. The donor still retained ample property out of which he made sufficient and suitable provision by will for his widow, the benefit of which provision she elected to renounce.

The decree is right and will be affirmed.

Decree affirmed.


text:
    Anton Kosiba, Defendant in Error, v. Jacob Galinski, (Standard Oil Company, garnishee), Plaintiff in Error.
    Gen. No. 16,485.

      Exemptions—burden on whom, to show wages are exempt. The . burden under the general exemption law is on the garnishee or judgment debtor to show that wages are exempt by proof that such judgment debtor does not have property to exceed in value the amount exempted.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewaet, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    Morton H. Eddy, for plaintiff in error.
    Frank Foster, for defendant in error; R. F. Kompare, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

This was a suit in attachment instituted in the Municipal Court by Anton Kosiba against Jacob Gralinski, wherein the Standard Oil Company was summoned as garnishee. The verified answer of the garnishee sets forth that Galinski is and was at the date of the service of summons in its employ; that it then had in its possession the sum of $36.92 due said Galinski as wages from September 16th to October 1st, 1909; that Galinski was in its employ at Whiting, Indiana; that he is a married man and residing with his family, a householder, and a resident of the State of Indiana; that the wages aforesaid were earned, due and payable to the said Jacob Galinski in said Whiting, Indiana; that it claims said wages as being exempt under Section 34, Chapter 62, of Hurd’s Revised Statutes, relating to the wages of nonresidents; that under the laws of the State of Indiana wages of resident householders residing with their family are exempt from garnishment proceedings to the amount of $600; that it is not indebted to the said Galinski in any amount whatsoever; and that it has not, nor did it have at the date of service of summons, in its control, possession or agency, any property, money, credits, or effects of any kind or nature, due or to become due, except as above stated, belonging to the said Galinski.

The traverse of the plaintiff to said answer of the garnishee states that at the beginning of said suit the defendant, Galinski, was in the possession of real and personal property, goods and chattels of an amount in excess of $600, and denies that said defendant is entitled to the benefit of the exemption laws of the State of Indiana, because said defendant has not claimed his exemptions under the exemption laws of the State of Illinois or of the State of Indiana.

Upon a trial by the court judgment was entered in favor of the plaintiff against the defendant for his damages assessed at $50, and judgment was also entered in favor of the defendant for the use of the plaintiff against the garnishee for $36.92,' to reverse which latter judgment the garnishee prosecutes this writ of error.

Section 34, chapter 62, of the Statutes of this State, relating to garnishment, is as follows:

“And whenever, in any proceedings in any court of this State, to subject the wages due to any person to garnishment, it shall appear, that such person is a nonresident of the State of Illinois, that the wages earned by him were earned and payable outside the State of Illinois, the said person, whose wages are so subjected to garnishment, shall be allowed the same exemption as is at the time allowed to him by the law of the State in which he so resides.” Hurd’s Statute 1909, 1217.

There were offered in evidence sections 713, 714 and 715 of Bums’ 1901 Ann. Statutes of Indiana, which provide as follows:

Section 713. “Before a debtor shall receive the benefit of the exemption provided by this Act, he shall make out and deliver to the officer holding the execution a schedule of all his property, as now required by law, in case an exemption from sale on execution is claimed.”

Section 714. “Before any person shall be entitled to the benefit of the provisions of the above recited act, he shall make out and deliver to the sheriff or other officer having the writ, an inventory of all of his or her real estate, within or without this State, money on hand or on deposit within or without this State, rights, credits and choses in action, and all personal property of every description whatever belonging to him or in which he had any interest at the date of the issuing of the writ, and make and subscribe an affidavit to the same and that such inventory contains a full and true account of all such property as required in this act to be set out in the said inventory, had or held by him at the time such writ was issued; and if any property has been disposed of by him since the issuing of the writ, such affidavit shall show that fact, and how the same has been disposed of, and what disposition he has made of the proceeds; and until such inventory and affidavit shall be furnished to such officer, he shall not set apart any property to the execution-defendant as exempt from execution.”

Section 715. “An amount of property not exceeding-in value $600, owned by any resident householder, shall not be liable to sale on execution or any other final process from a court for any debt growing out of or founded upon a contract express or implied after the taking effect of this Act.”

The wage exemption of a resident householder in the State of Indiana comes within the provisions of section 715, above quoted of the general exemption law. Pomeroy v. Beach, 149 Ind. 511.

It is insisted on behalf of plaintiff in error that the answer filed by it, wherein it merely claims the amount of wages in its possession belonging to the judgment debtor as exempt under the provision of said section 715, casts the burden on the defendant in error to show that the judgment debtor has an amount of property exceeding in value $600, and that the wages in the possession of the plaintiff in error are not exempt from garnishment. It is contended on behalf of defendant in error that the mere claim by plaintiff in error that the wages are exempt does hot establish such exemption, but that the burden of showing that such wages are in fact exempt is on plaintiff in error, and that before such exemption is available to the judgment debtor it is incumbent upon him to make a complete schedule or inventory of his property, as provided in sections 713 and 714, above quoted.

While it may well be doubted whether said sections 713 and 714 can be given any extra territorial effect, so as to require a judgment debtor' residing in the State of Indiana to comply with the provisions of said sections in order to avail himself of his exemptions in a garnishment proceeding instituted in this State, we are clearly of opinion that the burden is on the garnishee or the judgment debtor to show that the wages claimed to be exempt under a general exemption law are exempt in fact. McMasters v. Alsop, 85 Ill. 157. Undoubtedly it would be otherwise, and such rule would not be applicable, if the statute declared a specific amount of wages to be exempt. In the latter ease the answer of the garnishee, disclosing the amount of wages due the judgment debtor, and claiming the specific amount fixed by the statute as exempt, would operate to avail the judgment debtor of his exemption to the extent of the amount fixed by the statute.

When a garnishee answers that he is not indebted to the judgment debtor, or that he has no property of the judgment debtor in his custody or control, it devolves upon the judgment creditor to show that the answer is untrue, and this is what is decided in Manowsky v. Conroy, 33 Ill. App. 141, cited and relied upon by plaintiff in error.

In the absence of any proof by plaintiff in error, or by the judgment debtor, that the latter did not have an amount of property exceeding in value $600, the finding of the trial court was right and the judgment will be affirmed.

Judgment affirmed.


text:
    Robert Ovens, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,449.
    1. Street railroads—evidence in collision accident sufficient to go to the jury. A man driving a buggy on street car tracks because of snow banked upon the sides of the tracks, at night and in a dimly lighted and sparsely settled part of a city, was struck by an overtaking electric car. He testified that he looked when about two blocks back and saw no car and had no notice of the approach of a car until it was fifteen feet away, too late for him to successfully clear the track. The motorman testified he observed the buggy when sixty feet away, that the car was going eight miles an hour, that he sounded the gong and made unavailing efforts to stop the car, and that the driver was partly out of the track and turned in, in front of the car. The conductor, who had been discharged and whose testimony was weakened by evidence of threats and contradictory statements, testified that the motorman was not looking ahead and did not have his hands on the controller or brake. Held, it was proper to refuse a peremptory instruction.
    2. Street railroads—when evidence of conditions observed subsequent to accident is admissible. Where a man driving a buggy is struck by an overtaking electric car at night and there, was sufficient snow on the ground to enable persons to observe the tracks of the buggy wheels and other conditions upon the ground, witnesses may testify, within proper restrictions, as to the conditions they actually observed at the scene of the accident the following morning.
    3. Street eatlboads—when evidence of conditions observed subsequent to accident is inadmissible. Where a man driving a buggy is struck by an overtaking electric car at night and is thrown under the fender and there was sufficient snow upon the ground to enable persons to observe the tracks of the buggy wheels and other conditions upon the ground, it is improper to permit a witness who examined the scene of the accident the following morning to state, without further explanation or identification, that he saw “the dragging of something along on the street car track.”
    4. Street railroads—when ordinance requiring light on vehicle is admissible. Where a person driving on street car tracks in a sparsely settled and dimly lighted locality in the night time without a light on his buggy is struck by an overtaking electric car, an ordinance declaring it unlawful for any wheeled vehicle to use the streets without displaying a light within the period stated therein is admissible.
    5. Evidence—when speculative opinion of physician is prejudicial. Where evidence as to the character and extent of a personal injury is sharply conflicting and the damages awarded were necessarily based upon permanency of injury, a speculative opinion of a physician as to certain conditions and symptoms, “the condition may go on for life, it might increase, it might even—it might change or get better, although the length of time that the injury, such a-symptom persisted, makes it less and less apt to improve,” is prejudicial.
    6. Witnesses—when instruction as to bias, of employe is inaccurate. An instruction in a street railway accident case that the fact that any witness was or had been in the employ of either the plaintiff or defendant might be considered by the jury in determining the weight to be given to the testimony of such witness is improper when the only witnesses within such class were those called by the defendant.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, pro Siding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 12, 1912.
    James G. Condon and C. LeRoy Brown, for appellant.
    Jambs L. Bynum and S. P. Douthart, for appellee; Guerin, Gallagher & Barrett, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for personal injuries alleged to have been occasioned by the negligence of appellant. A trial in the Superior Court resulted in a verdict and judgment against appellant for $4,500, from which judgment this appeal is prosecuted. The declaration charges that while appellee was driving south on Western avenue in the exercise of due car for his own safety, appellant so carelessly, negligently, wantonly and wilfully drove and managed a south-bound electric trolley car, that said car then and there ran into appellee’s buggy, and appellee was thereby thrown from said buggy down to the ground and said buggy and said electric car then and there ran over and upon him, injuring him, etc. The charge in the declaration that the act of appellant was wanton and wilful was abandoned by appellee upon the trial.

On February 10, 1905, appellant maintained and operated on Western avenue between 63rd and 68th streets a double track street railway, whereon cars were propelled north and south by electricity. On that day following a considerable fall of snow, the snow had been cleared from and between the tracks and banked upon either side of the tracks, so that the only portion of the street available for travel with vehicles was the cleared space upon and between the tracks. At about eleven o ’clock at night appellee, driving in a single buggy, entered upon Western avenue from 63rd street and proceeded to drive south on or between the tracks. When appellee reached a point between 63rd and 64th streets he observed a northbound car as it passed and looked north, but saw no ear approaching from that direction. The locality was sparsely settled and dimly lighted. The night was dark, and the temperature was about at zero. While driving south appellee’s limbs were tightly enclosed in a blanket, and he wore a heavy overcoat of which the collar was turned up, and a cap which was pulled down over his ears. Thus attired he drove at a slow trot without looking back to see whether a car was approaching from the north until he reached a point where 66th street, if it ran through, would intersect Western avenue, or a point between 67th and 68th stfeets, when his buggy was struck by a south-bound car, and he was thrown to the ground and injured. There was no light on appellee’s buggy.

Appellee testified that he drove south in the southbound track; that he heard no warning signal, and was not aware of the approach of the car until he heard the grinding noise of a car in motion at a distance of ten or fifteen feet, behind him; that he turned immediately and saw the car and hurriedly pulled his horse to the south-east in an effort to clear the track; that when the car struck the buggy he thought the horse was in the east, or north-bound track, and that all but the left hind wheel of the buggy had cleared the south-bound track; that although the headlight in the car was dim, the car was, otherwise, well-lighted, and he could have seen it approaching a distance of at least two blocks.

Kucera, the motorman, testified on behalf of appellant that he first observed the buggy when it was fifty or sixty feet ahead of him;-that the headlight would show a distance of twenty or thirty feet in front of the car; that the car was then going at a speed of about eight miles an hour; that as soon as he saw the buggy he tapped the gong and applied the brake, and that when within twenty-five or thirty feet from the buggy, he released the brake, reversed the power and applied the sand, and just as he did so, appellee, who, up to that time was driving between the rails of the north-bound track and in the space between the two tracks, so that the car would have cleared the buggy about a foot, started to turn toward the south-bound track immediately in front of the car and so was struck; that at that time the car was running at a speed of about two miles an hour and ran about five feet after it struck the buggy; that appellee was thrown under the fender of the car where he remained about fifty minutes until help was secured to assist in raising the car.

Abbott, the conductor, who was subsequently discharged by appellant, testified as a witness for appellee that at the time of the collision the car was running at a speed of between nine and ten miles an hour; that the motorman was on the front platform with his cap over his ears, his coat collar turned up, a handkerchief tied across his face just beneath his eyes, and was facing the west, striking his hands on his back, and having no hand on the controller or on the brake; that the first the witness knew of the collision was when he saw or heard the glass come in on the platform; that the car ran about 100 feet before it was stopped; that when appellee was taken from beneath the fender he had a blanket around him from his heels to his waist, and another blanket from his waist over his head; that from 64th street until the collision occurred he was standing in the front end of the car looking south and southwest at the motorman through the glass in the sliding door, but did not see the horse and buggy until after the collision. The probative force of Abbott’s testimony is appreciably weakened by the fact that he made a wholly contradictory written statement immediately following the accident as to the manner of its occurrence, and by the testimony of several witnesses as to statements made by him to the effect that if he was not restored to his position, or was not given a substantial sum of money he would get even with appellant by testifying against it in the case.

As the judgment must be reversed and the cause remanded for another trial because of error in the instructions and in the admission of evidence, we refrain from a discussion of the facts disclosed by the competent evidence in the record bearing upon the questions of appellant’s alleged negligence and the exercise by appellee of due care for his own safety, further than to say that upon the evidence adduced the peremptory instructions tendered by appellant were properly refused.

The competent evidence bearing upon the character, extent and permanency of the injuries sustained by appellee is close and conflicting.

The evidence tends to show that on the night of the accident and the morning following there was sufficient snow on the ground to enable persons to observe the tracks of wheels and other conditions appearing upon the ground at and about the place where the accident occurred, and the testimony of the witnesses, Laskey and Alexander Ovens, within proper restrictions, as to the conditions they actually observed there the following morning, was not improperly admitted, but the witness, Alexander Ovens, was improperly permitted to state, without further explanation or identification, that he saw “the dragging of something along on the street-ear track.’.’ There had been no additional snow fall during the night or the next morning, and as the witnesses testified that they saw wheel tracks of but one buggy, the suggestion by counsel for appellant that the tracks made by other vehicles may have obscured the tracks made by the wheels of appellee’s buggy is without force.

Over the objection of appellant, Dr. Adams, called by appellee as an expert, was permitted to state his admittedly purely speculative opinion as to the permanency of certain conditions and symptoms claimed by appellee to be the result of the injury. Eeferring to the subject-matter of the inquiry the witness said: “The condition may go on for life, it might increase, it might even—it might change or get better, although the length of time that the injury, such a symptom persisted, makes it less and less apt to improve.”

In Lauth v. Chicago Union Traction Co., 244 Ill. 244, it was held that consequences which are contingent, speculative or merely possible are not proper to be considered in ascertaining the damages; that it is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely to so develop; that to entitle a plaintiff to recover present damages for apprehended future consequences there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. In view of the fact that the competent evidence relating to the character and extent of appellee’s injuries is sharply conflicting, and of the further fact that the damages awarded by the jury were necessarily predicated upon a finding that the injuries sustained were permanent, the action of the court in permitting Dr. Adams to state his merely speculative opinion in the language quoted was prejudicial to appellant.

As bearing upon the question of appellee’s due care for his own safety, appellant offered in evidence an ordinance of the City of Chicago declaring it to be unlawful for any wheeled vehicle to use the streets of the city without having displayed one or more lights or lanterns, within the period therein stated, but such ordinance was held by the trial court to be inadmissible. While it may be doubted whether appellant is in a position to attack the propriety of such ruling, it is proper to say that the ordinance was competent evidence, and should have been admitted. Flynn v. Chicago City Ry. Co., 250 Ill. 460.

The third instruction given at the instance of appellee, although in this case not ground for reversal, is technically inaccurate and should have been refused, or so modified as to embody the element of the number of witnesses in the enumeration of the matters proper to be considered by the jury in determining the preponderance of evidence in the case. Lyons v. Ryerson & Son, 242 Ill. 409.

The fourth instruction given at the request of appellee informed the jury that the fact that any witness in the case was or had been in the employ of either' the plaintiff or defendant might be considered by them in determining the weight which ought to be given to the testimony of such witness. The only witnesses embraced within the class mentioned were witnesses called by appellant. The instruction was held to be inaccurate in Bennett v. Chicago City Ry. Co., 243 Ill. 420, and the reason it was there held not to have been harmful, does not exist in the case at bar, viz., that' the verdict of the jury was not inconsistent with the hypothesis that everything testified to by appellant’s witnesses was absolutely true. The eighth instruction, given at the request of appellee, relates to the questions of damages. While the instruction is substantially accurate, any criticism of it can readily be avoided by limiting the consideration of the jury, in determining the amount of damages to be awarded, if any, to the facts and circumstances proved by the evidence bearing upon the elements of damage proper to be considered. The fifth instruction, given at the request of appellee, is not open to the criticism made and was properly given.

The twenty-eighth instruction, as tendered by appellant, was approved in Chicago Union Traction Co. v. Browdy, 206 Ill. 615, and was improperly modified by the court before it was given to the jury. The facts upon which the instruction was predicated were testified to by the witness, Kucera, and the instruction should have been given, without modification, as tendered.

For the errors indicated the judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.


text:
    William T. Monroe, Defendant in Error, v. Clair A. Orr, Plaintiff in Error.
    Gen. No. 16,534.
    1. Brokers—commissions. The verdict of a jury awarding a broker one-half of the commission realized on a sale of stock will not be disturbed where, under conflicting evidence, the broker claimed, the agreement called for half and defendant claimed that nothing was said in regard to the amount of commission.
    . 2. Accord aetd satiseactioet—what does not constitute. The retaining of a check by a broker for services will not constitute an accord and satisfaction where good faith is lacking on the part of the principal or where there is no afiirmative proof that the check was tendered in full payment of the claim.
    3. Brokers—commissions. Where conflicting evidence tends to show that a broker suggested certain parties as prospective purchasers and a sale resulted therefrom, the verdict of a jury allowing his commission for finding a purchaser will not be disturbed.
    Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    McCabe, Cloves & Kull, for plaintiff in error.
    Boseuthal, Kurz & Hirschl, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Defendant in error brought this suit in assumpsit, with attachment in aid, against plaintiff in error in the Circuit Court, to recover a balance claimed to be due him for services in procuring a purchaser for the capital stock of the Belleville Gras & Electric Co., a corporation doing business in Belleville, Illinois. A trial by jury resulted in a verdict and judgment against plaintiff in error for $3,500.

The only debatable questions involved upon this record are questions of fact. First, whether or not plaintiff in error agreed to pay defendant in error for his services $5,000, or one-half of the commission realized by plaintiff in error from said sale; second, whether or not defendant in error was the procuring cause of said sale; third, whether or not there was an accord and satisfaction, whereby defendant in error accepted $1,500 as in full for his claim for services.

In March or April, 1906, plaintiff in error having an option for the purchase of 1,215 shares of the preferred stock and 1,633 shares of the common stock of the Belleville Gras & Electric Co. for $121,500, and acting upon the assumption that he could purchase the remaining shares of the capital stock of said company for $28,500, interviewed defendant in error with a view to securing his services in finding a purchaser for the entire capital stock of said company at a price sufficiently in advance of $150,000 to net them a substantial commission. In the first formal proposition made by plaintiff in error the selling price of the stock was to be fixed at $160,000, out of which $5,000 was to be paid to an officer of the corporation for his services in securing the option and closing the deal, leaving but $5,000 for commission, of which amount defendant in error was to have $2,500 for his services in procuring a purchaser. At the suggestion of defendant in error the selling price was fixed at $165,000, so that a commission of $10,000 might be realized. One, K. L. Ames, acquired all of the stock of the company by purchase for $165,000, and plaintiff in error received a draft for $10,000 as commission, and deposited $6,000 in the First National Bank and $4,000 in the Woodlawn Trust & Savings Bank.

Defendant in error testified that when his services were solicited by plaintiff in error he asked plaintiff in error, “How much is there in it for me,” and that plaintiff in error replied, “Half of what we make.”

Isaac N. Powell, a witness called by defendant in error, testified that upon one occasion, when plaintiff in error requested him to procure transportation to East St. Louis, plaintiff in error stated that he was going there on a deal in which he and defendant in error were interested, and that defendant in error would get as much out of it as he would. At that time defendant in error was a member of the legislature, and the evidence tends to show that the suggestion that plaintiff in error could procure transportation from Powell was made by defendant in error, and that the interest of defendant in error in the transaction induced Powell to procure the transportation. Plaintiff in error denied having made the statement attributed to him by Powell, and also denied that he told defendant in error that he should have one-half of the commission.

As bearing upon the services performed by him, defendant in error testified that shortly after he received written data of the proposition from plaintiff in error, he told plaintiff in error that he would like to take up the matter with the “Dawes crowd”; that he went to the Central Trust Company bank for the purpose of interviewing Mr. Charles Gr. Dawes; that failing to see Mr. Dawes, he took the matter up with Mr. Edens, one off the officials of the bank, with whom he was acquainted, and was informed by Edens that Bufus Dawes was the party to take the matter up with; that in the evening of the same day he informed plaintiff in error of his conversation with Edens, and told plaintiff in error that if he would see Edens in the morning, Edens would introduce him to Bufus Dawes; that Mr. Ames was the man to be sent to Belleville, and the proposition would be turned over to him. Plaintiff in error admitted that defendant in error suggested that he call on Edens, but denied that the name of either Bufns Dawes or Ames was mentioned by defendant in error. On the following morning plaintiff in error called on Edens, who introduced him to Bufus Dawes, who was conversant with the property, and expressed a disinclination to consider its purchase, but told plaintiff in error if he, Dawes, heard of anybody who would like to purchase the property he would let plaintiff in error know. A week later plaintiff in error received a communication from Bufus Dawes as follows:

“Please come in at your earliest convenience. J wish to see you regarding the situation at Belleville.”

In response to this communication plaintiff in error called on Bufus Dawes, who introduced him to Ames, who investigated the property and purchased the stock of the company. During the progress of the negotiations involving the purchase of the stock by Ames, plaintiff in error frequently advised with defendant in error regarding the situation and treated defendant in error as an interested party in the transaction.

The evidence tends to show that after the sale was consummated and after plaintiff in error had received the commission of $10,000, defendant in error made several unsuccessful efforts to ascertain from plaintiff in error the amount of the commission, and whether or not it had been received by plaintiff in error. The draft for $10,000, in payment of the commission, bears date June 9,1906. On June 13th, following, the parties left the home of defendant in error to go to the Wood-lawn Trust & Savings Bank. Defendant in error testified that, as they went down the street together, plaintiff in error bemoaned the fact that he did not get as much as he expected, and finally said he had received $4,000, and that it did not look as though there would be more than $1,500 in it for defendant in error; that when they arrived at the bank he gave plaintiff in error the latter’s dne bill for $200, which he held for money borrowed by plaintiff in error, and plaintiff in error gave him a check for $1,725; that he asked plaintiff in error what the $25 was for, and disclaimed any interest on the $200, stating it was merely a personal loan; that plaintiff in error replied, “That is all right, ’ ’ and walked out of the bank.

Plaintiff in error’s version of what then occurred was as follows:

“I met him at his house on Kimbark avenue and went with him to the Woodlawn Bank. We were alone. Nothing was said especially on the way; nothing about the amount of money at all. General conversation; nothing special. On arriving at the bank I drew a check. I told him I was giving him a check for $1,725. First explaining that the $225 was in payment of a loan. I said I was going to give him $25 for the use of the $200 I had had for some two months or so. At first he did not want to take it. I said, ‘That is all right; just take it; you are welcome to it,’ and I added the $1,500, and that made $1,725. He said, ‘What is that for?’ and I said, ‘That is for the Belleville deal.’ And he said, ‘Why that is not half of it, is it?’ I then said, ‘You did not expect half of it, did you?’ He said, ‘Why, that was the agreement.’ I said, ‘I did not understand it that way.’ He took the check.”

In view of the fact that the selling price of the stock had, at the suggestion of defendant in error, been fixed at a figure that would presumably allow a commission of $10,000, and the further fact that defendant in error expected to receive one-half of the commission, the statement made by the plaintiff in error that nothing was said about the amount of the commission which he had received and in which defendant in error was to participate, taxes our credulity. That plaintiff in error should without question have paid defendant in error $1,500 for services which plaintiff in error now claims defendant in error did not render is unreasonable and contrary to the usual course of business dealing. The facts and circumstances in evidence tend to corroborate defendant in error’s version of what occurred and to show that plaintiff in error falsely represented to defendant in error that he had only received a commission of $4,000.

The transaction wherein plaintiff in error gave to defendant in error the check for $1,725, which was retained by the latter, lacks two essential elements necessary to constitute an accord and satisfaction: first, good faith on the part of plaintiff in error; and, second, affirmative proof that the check was tendered in full payment of defendant in error’s claim.

The controlling issues of fact were properly submitted to the jury, and upon the evidence adduced the verdict must be held to be conclusive against plaintiff in error.

The sixth instruction, tendered by plaintiff in error and given to the jury as modified by the court, was not improperly modified. The instruction, as modified, embodies the elements contained in the first and second instructions given at the instance of plaintiff in error, which elements were omitted in the instruction

as tendered.

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

Judgment affirmed.