text:
    Mary W. Anderson, Appellee, v. James A. Williams, Appellant. Sarah E. Blood, Appellee, v. James A. Williams, Appellant.
    Gen. No. 5,729.
    1. Wills—active trust during lifetime enforcihle. On a bill to have a will devising real estate in trust construed, the trust terminated, and the trust fund turned over as absolute property, held, that the will conveys the title to real estate and proceeds therefrom under an active trust, in full force and effect, the income therefrom going to complainants during their natural life, and that the question as to the disposition of such funds after their death is premature.
    2. Wills—active trust for life enforced. Even though there maybe a question as to a limitation over to children of devisees, still, a devise in an active trust for such devisees for life is good and valid, regardless of where the fund goes after their death.
    3. Trusts—cannot be dis-established. Neither a trustee nor a beneficiary, either acting together or separately, have power to dis-establish an existing trust.
    4. Wills—release of contingent interest. Where a trustee under a will at a meeting of the heirs, in which they agreed that their respective shares should be distributed absolutely, stated that he would release his contingent interest, as heir, but not as trustee, in the trust fund, there being no binding assignment shown, there is nothing enforcible in law as to such release.
    Appeal from the Circuit Court of Henry county; the Hon. Emert C. Graves, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed March 12, 1913.
    F. W.-Potter and Evans & Evans, for appellant.
    Anderson & Andrews, for appellees.
   Mr. Justice Whitney

delivered the opinion of the court.

William P. Williams, father of appellees and appellant Williams, made his will on December 31, 1900, and on December 2, 1901, made a codicil thereto. On February 26, 1907, he died, leaving no widow but leaving appellant James A. Williams, his son; appellee Mary W. Anderson, his daughter; appellee Sarah E. Blood, his daughter, and his daughters Catherine Esmond, Annette Wylie and Carrie Patty as his heirs and only heirs at law, all of full age of legal majority. In May, 1907, said will and codicil were duly probated in the County Court of Marshall county, state of Illinois, wherein the same are of record as the valid and subsisting last will and testament of said William P. Williams, deceased. On the tenth day of January, 1910, more than one year after the probate of said will and codicil, appellee Mary W. Anderson filed her hill in this cause, not to contest said will and codicil, but to have the same construed, the trust therein mentioned terminated, and the trust funds therein provided for her benefit, turned over to her as her absolute property. On said tenth day of January, 1910, appellee Sarah E. Blood filed her bill in this cause for the same purpose. For brevity hereinafter Mary W. Anderson and Sarah E. Blood will be named as they are the only appellees. Answers to both bills were filed and issues joined, and proofs taken before a master. The master reported his findings of law and fact, and thereafter, by order duly entered in the trial court, the two bills were consolidated, the bill of appellee Sarah E. Blood to be treated as a cross-bill to the bill filed by appellee Mary W. Anderson. Exceptions to the master’s report were filed by both appellant and appellees, which were all overruled or withdrawn, and decree was entered by the trial court substantially according to the master’s recommendation, by which the said trusts were terminated and the funds in the hands of the trustees decreed to be paid to appellees respectively, and requiring the trustees to pay six per cent, on the trust funds in their hands, although they had obtained only three per cent., appellees having claimed this money from the first.

The will and codicil, after making provisions for certain legacies, not herein involved, is as follows: Item VT. I give and devise to my son, the said James A. Williams, and to my son-in-law, Wesley D. Patty, all of my real estate, wheresoever situated, in trust, that they have the care and control thereof, that they rent the same and receive the rents, issues and profits thereof; and having first paid for all needed repairs, taxes, insurance and other lawful charges against the same, that they divide the net rents, issues and profits thereof semi-annually, among my wife and my children hereinafter named, so long as my said wife shall live, in the proportions following, to-wit: That they pay to my wife, the said Matilda, semi-annually, one third part thereof, and that they pay one sixth part thereof semi-annually to my daughters namely: Catherine, wife of Darwin W. Esmond, Sarah Elizabeth Williams, hereinbefore called (Bessie), Annette, wife of John Wylie,. Mary W., wife of Neis F. Anderson, and Carrie, wife of Wesley- D. Patty, and to my son, the said James A. Williams, for the term aforesaid. That after the death of my wife, the said Matilda, the said James A. and Wesley D. shall sell the real estate aforesaid, in such lots and parcels, (or all en masse,) at such time and times and at such price and prices as to my said Trustees shall seem meet and to the interest of my estate, the proceeds of such sale and sales, and the net rents, issues and profits thereof accruing after the death of my said wife, I hereby, give, devise and bequeath to my beloved children, namely the said Catherine Esmond, James A. Williams, Sarah Elizabeth Williams, Annette Wylie, and Carry Patty, each an equal one sixth thereof, and the remaining one sixth thereof to the said James A. and Wesley D., in trust that they invest the same in well secured and safe bonds, notes and mortgages, yielding the largest possible interest, with entire safety to the principal, and that the net income thereof, they pay to the said Mary W. Anderson, semi-annually during the remainder of her life, and after her death, that they pay the said net income of said fund semi-annually to such child or children as the said Mary W. Anderson may leave her surviving, and to the surviving child or children of any deceased child or children of the said Mary W. as shall be living at the time of such distribution, and who shall not have arrived at his or her majority, per stirpes, and per capita. That each of the child or children of the said Mary W., and the surviving child or children of a deceased child or children of the said Mary W. being of the age of eighteen if female or twenty one if male, shall take his or her share of both income and principal of said fund in the same proportion as of the income, which shall be in full of his or her share in said fund, and of the income thereof.

It is further my will that no child or children born after the death of the said Mary W. shall be entitled to said fund, nor any part thereof, nor of the income thereof. That in case any of said fund shall be left at any time and there be no one living who on arrival at his or her majority will be entitled to so much of said fund as then remains, that then, in that case, such remainder shall be immediately distributed between those who shall be then living and who have before then received a share of said fund, in portions proportioned as in prior distributions of said trust fund.

Item VII. It is further my will, that in case it shall seem to be to the best interest of my estate, that the said James A. and Wesley D., may sell the land owned by me in sections seventeen (17) and eight (8) being fifty acres and twenty acres respectively or such part or portion thereof, as they may deem best, and apply the net proceeds thereof first, to the payment of my just debts, and distribute the remainder, if any, according to the directions for the distribution of the sale of my real estate hereinbefore set forth the whole fund and without investment; and that the said James A. and Wesley D., have power to procure the release of my said wife, for a lump sum to be agreed upon by them and my said wife, to be paid out of the proceeds of such sale or sales. And that in case my son, the said James A., shall desire to become the purchaser of any part or portion and for the purpose of making such sale or sales and conveyances, I hereby substitute the said John Wylie, as the trustee, in the place of the said James A. with the same powers herein given to the siad James A., but for no sale or sales to any other or different person than the said James A. Williams whomsoever; the net proceeds thereof to be paid to the said James A. and Wesley IX, to be held by them upon the same trusts as in case of sales of real estate made by them.

Item "VTII. It is my will that in case my daughter Mary W. Anderson shall take the sum of five hundred dollars, or any part thereof, hereinbefore given and bequeathed to her, that she be charged with the same as so much of the principal of her interest, (and that of her descendants,) in the proceeds of my real estate, and that the same and the income thereof be diminished accordingly; but that if she shall not take said sum, nor any part thereof, in that case no diminution of her interest in the proceeds of my real estate shall be made.

Item IX. I hereby give, devise and bequeath all the rest residue and remainder of my estate, of what kind or nature soever and wheresoever situated, to my beloved children above named, to be divided between them equally, share and share alike.

And lastly I hereby nominate and appoint the said James A. Williams and Wesley D. Patty, to be the executors of this, my last will and testament; hereby giving to them, and to the said John Wylie, full power and "authority upon making any sale or sales of real estate hereinbefore authorized, good and sufficient deed and deeds or conveyance to make, acknowledge and deliver, conveying the premises sold to the purchaser or purchasers thereof; hereby revoking all former wills by me made.

In testimony whereof, I have hereunto set my hand and seal this 31st day of December A. D. 1900.

(Signed) William P. Williams.

(Seal.)

Codicil.

Whereas, I, William P. Williams of the Township of Henry, in the county of Marshall and State of Illinois, have made my last will and testament in writing bearing date of the 31st day of December A. D. 1900, in and by which I have willed and directed that one sixth part of the net rents and profits of my estate after my death and until the death of my wife, Matilda Williams, shall be paid to my daughter Sarah Elizabeth, (called “Bessie” in the family,) and that after the death of the said Matilda, my wife, that my entire estate be converted into money, and when so converted that one sixth part thereof be paid to the said Sarah Elizabeth, who since making of said will has intermarried with Joseph B. Blood. Now therefore, I do by this writing which I hereby declare to be a codicil to my last will and testament, and to be taken as part thereof, order and declare that my will is, that the said bequest of-one sixth of the said proceeds of the sale of my entire estate be, and the same is hereby revoked ; and in lieu thereof, I hereby give and beqiieath the said sixth of the proceeds of my entire estate in and by said will to the said Sarah Elizabeth Williams (Now Blood) given and bequeathed to my son in law, James A. Williams and Wesley D. Patty, in trust, that they invest the same in well secured and safe bonds, notes and mortgages, yielding the largest possible interest consistent with the entire safety of the principal, and that the net income thereof they pay to the said Sarah Elizabeth Blood semi-annually, during the remainder of her life; and that after her death that they pay the net income of said fund semi-annually to such child or children of the said Sarah Elizabeth as she shall leave her surviving until the youngest shall arrive at his or her majority, and as shall be living at the time of the several payments. Provided, that each child upon arriving at its majority shall be paid its proportionate share of said trust fund as it shall then be, principal and interest; and thereupon its interest in the income and profits as well as the principal of said trust fund shall then cease: That in case there shall be adult and minor children of the said Sarah Elizabeth, and all of the minor children shall die before arriving at majority, then, in that case I give and bequeath to such adult child or children of the said Sarah Elizabeth, as shall be living at the time of the death of the last minor sister or brother, the balance of said trust fund then remaining, and to their heirs and assigns forever: And in case the said Sarah Elizabeth shall die, leaving no child or children her surviving, or in case all of her surviving children shall die before reaching his or her majority, then, immediately after her death, or immediately after the death of the last of her surviving child, under the age of majority, I give and bequeath all of said trust fund then remaining in the hands of said trustees to such child or children of mine, (named above i. e., in my will,) as shall then be living, to be divided between them share and share alike.

It is further my will that the said moneys and the several payments thereof to be paid to the said Sarah Elizabeth as aforesaid, shall be paid into her hands by said trustees in all cases, in her own proper person, and not upon written or verbal order, nor upon any assignment or transfer of the same by the said Sarah Elizabeth.

And lastly, it is my desire that this codicil be annexed to, and made a part of my last will and testament as aforesaid to all intents and purposes.

In witness whereof, I have hereunto set my hand and seal this second day of December, A. D. 1901.

William P. Williams, (Seal)”

In this proceeding as it seems to this court, all that is before the court for determination is the legal effect of the language used in the will and in the codicil. Therefore such parts of the evidence as might have been germane if this were a bill filed within the statutory period of limitation to contest the will and codicil will not be very much considered on this hearing. All questions that go to the validity of the will and codicil are at rest. It cannot be questioned on this hearing that William P. Williams at his death left said will and codicil, the language of which speaks for itself, and which must be given effect according to the principles of law controlling such undisputed documents. The persons named as trustees in said will must be held to have sold the real estate therein mentioned as trustees and not as executors, because by reference to the will it will be seen that as executors they were given no power of sale. They as executors were simply given full power and authority upon making sale or sales of real estate “hereinbefore authorized” to make conveyance of the real estate so sold, and the only right to sell provided for is the direction to them as trustees to sell, etc. So that said trustees held the proceeds of said real estate they sold as trustees and not as executors. The legal effect of the language of the trust clause of the will is, that if the trust provision as to appellees is entirely void, said proceeds of said real estate became and are intestate estate, the title to which is still in the heirs at law of the testator or passes to the residuary legatees named in the will. The will and codicil construed even as one instrument as appellees contend they must be, did not vest any title absolutely in fee in either of appellees. The will must stand as the will, the codicil being construed to be a part thereof. The record is barren as to anything that warrants the conclusion that the testator’s intention was that if Mrs. Blood’s husband died before she did, that then the trust provision for her should end, and that she could then take under the terms of the will as it was originally before the codicil was drawn. The codicil cannot now be set aside. It is the testamehtáry disposition of testator’s property so far as it relates to Mrs. Blood.

Under the will as modified by the codicil each of appellees have the life use of one-sixth of the proceeds of testator’s real estate for and during her natural life, the same to be held by appellants as trustees during that time.

We are of the opinion that regardless of where these funds go after the death of appellees respectively, the trustees as such, took the title to the proceeds of the real estate and must follow the terms of the will as to the investment of the funds, and the payment of the income therefrom during the lives of appellees respectively, and that raising the question now by appellees as to what is to become of those funds after their death is premature, and a question this court is not bound to determine in order to pass upon the case before it. It is sufficient to reverse the decree if this court finds said trustees are such for the active purpose of loaning the funds, and paying the proceeds to appellee’s during their lives. They have active duties to perform. Under the authority of Quinlan v. Wickman, 233 Ill. 39, we hold that even though there may be a question as to the validity of the limitation over to the children, etc., of appellees respectively, still the devise in trust for the use of each of appellees for life, is good and valid, and under the trust clause of the will and codicil, appellants properly hold the funds in active trust, for the use of appellees respectively, during life. Counsel for appellees say on page 35 of their argument, and it is the law: “We fully agree with counsel that neither the trustee nor the beneficiary, either acting together or separately, have power to disestablish a trust, if one exists.” The most that can be said of the Princeton meeting at which it is claimed all of the heirs, including appellant Williams, agreed that appellees should have their shares absolutely, is to the effect that appellant Williams said he would not release his interest as trustee, but that he would release his interest as heir in the funds which were held in trust for the benefit of appellees. We cannot hold that the Princeton meeting amounted to anything enforceable in law as to the contingent personal interest of appellant Williams in the trust funds. So far as the assignments mentioned in the evidence are concerned they may or may not amount .to binding assignments of the interests thereby professedly assigned of the contingent personal interests in the trust funds, but they have no legal force or effect in this case, because no assignment is shown of the contingent personal interest of appellant Williams.

On at least three grounds we are of the opinion the decree in this case must he reversed, (1) The contingent personal interest of appellant Williams, if any he has in the trust funds, has neither been assigned or contracted to be assigned by any agreement that is enforceable in law, but it still remains in him. (2) The trust is an active trust, in full force and effect as to the two-sixths of the proceeds of the land under the trust for the benefit of appellees respectively, requiring the trustees to loan the funds and pay the proceeds to appellees during their lives. (3) The trusts have not been determined by an agreement made by and binding in law upon all of the possible beneficiaries under them. Appellees could have filed bills to compel the trustees to account for the income and enforce the provisions of the will as to the trusts, but that is not this case. They here seek to deny the existence of the trust and compel payment to each of them as an absolute property right in the funds in appellants hands.

As we view the case, there is nothing to be done biit reverse the decree and remand the case with instructions to dismiss both the bill of appellee Anderson, and the bill of appellee Blood, which has been treated as a cross-bill.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Whitney

license: Public Domain

text:
    Grace Ervin, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,731.

      Carriers—contributory negligence. Plaintiff arose and went on the foot hoard of a moving street car trailer in the middle of a block and was thrown hy swaying of the car. Held, that the company was not guilty of negligence, and that plaintiff’s contributory negligence caused the injury.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbatjgh, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed March 12, 1913.
    Pinkney & McBoberts, for appellant.
    Elmer J. Slough, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee recovered a judgment against appellant for $750 for personal injuries alleged to have been caused by appellant’s negligence;

Appellee was a passenger on a trailer drawn by a motor car on appellant’s railway. The trailer had an aisle in the center, and also foot boards along each side, with access from each seat to the foot boards. Shortly after leaving a street appellee gave a signal to the conductor, which he had a right to interpret as meaning that she wished to alight at the next street. She then got up,' pushed by another passenger and walked out onto the foot board, and fell in, or nearly in the middle of the block, and received injuries. She claims the trailer jerked and thus threw her off. The jerking if there was any, was caused by the movements of the motorman at the front end of the motor car. His duty was to face forward. He could not see appellee on the foot board. The trailer had a loose connection with a motor car and there may very easily be some inequality of movement of the trailer, which appellee would call jerking. The conductor had no means of preventing the motor car from accelerating its speed. If he rang the bell for the motorman that would mean to stop at the next street, and would not be a signal that there should be any change of speed in the middle of the block.

We fail to see how appellant can be called guilty of any negligence in the manner it ran this car in the middle of the block even under the testimony of appellee.

The testimony very strongly preponderates that the car was not jerked, and also that it was running six or eight miles an hour. If appellee went on the foot board in the middle of the block, it was her duty to have hold of some handle by which she could retain her place on the car, notwithstanding any swaying that might occur. She said she took hold of something, but did not say what, and it is manifest she did not take any hold which would enable her to retain her upright position on the foot board.

We are of the opinion that it is clearly shown by the evidence that she was guilty of contributory negligence in the manner in which she got up and stood upon the foot board at that place, remote from the place where shfe would have the right to alight. She claims she was not trying to step off of the car at that place, but the evidence tends to show she was.

Judgment reversed with finding of fact.

Finding of fact to be incorporated in the judgment: We find that appellant was not guilty of the negligence charged in the declaration, and that appellee was guilty of contributory negligence which caused her injury.


text:
    Ollie Karlowski, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,734.

      Damages—what not excessive. Where plaintiff, a boy 11 years old, while standing on the tracks of defendant’s street railway at a crossing where there was no light, waiting for a south-bound car to pass, was struck by a north-bound car and received injuries which resulted in the loss of part of the left foot and a toe of the right foot, a judgment for $4,000 is sustained.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puteebaugh, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Rehearing denied April 16, 1913.
    Pinkney & McRoberts, for appellant.
    Dailey & Miller, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee, 11 years, 1 month and 20 days old, was crossing a street in Peoria on January 29, 1912, at about 6:15 o’clock p. m., after dark, at a street crossing where there was no light, and along which street appellant conducted a double track street car line. It was on Adams street at the Disk street crossing. Adams street is on the down hill side toward the river, and the other side is the bluff side. The lower street car tracks run north or up and the higher street car tracks run south or down.

Appellee claims he saw a south-bound car approaching and his attention was attracted by it, and he did not see a north-bound car approaching. As he stood on the north-bound track waiting for the south-bound car to pass he was struck, and his feet were injured, and he brought this suit to recover damages for such injuries, and had a verdict and judgment for $4,000, from which the defendant below appeals.

It is not contended that the court erred in any ruling on evidence or instructions, or any other ruling at the trial except that it is contended that the court should have given an instruction to the jury to find for the defendant. There was evidence that the car which struck appellee was going twenty-five miles an hour. There was no street light at that crossing. There was evidence that this car was not ringing a gong as an ordinance required. There was evidence appellee’s attention was distracted by the car coming north. There was evidence by appellant that the car was running at a very moderate speed, and that the gong was rung, and that there was a car approaching from the north within four blocks. There was evidence for appellant that a coal wagon was coming from the east, and that the boy must have come upon the track from the upper side of the street behind the coal wagon. There was other evidence tending to show there was no coal wagon there. There was evidence that the motorman was keeping strict look out ahead and other evidence that he could not have been so doing because he did not see appellee. There was evidence appellee was seriously injured and there was evidence his injuries were not very serious. It is clear that there being evidence, which standing by itself, would make a case for appellee, the court could not have instructed the jury to find for appellant without committing reversible error. The jury found in favor of appellee on conflicting testimony, and the trial judge approved their finding, and we see no such condition of the evidence as would justify us in holding that the jury and the trial judge were wrong, and that the verdict should have been for appellant. Appellant claims that the damages are excessive, but he does not show so by his argument. On the question of the injuries to appellee Dr. P. F. James testified for appellee that he saw appellee right after the accident, and that both feet were apparently crushed and bleeding; that he examined him soon after the operation on the feet by Dr. Weil; that the. front part of his right foot was removed entirely, and that it was not healed; that it seemed to be more or less angry on top, and very tender to the touch; that appellee will not be able to get around very good until it is healed a great deal more than it is; that the only thing he could say about the way it would affect him in the future is the way other cases had been with which he was acquainted, and they generally take years and continue to be tender for a number of years, probably always during natural life this will be tender; that on the left foot a part of the little toe is off, and there has been a crushing of the ligament around the ankle joint; that he would say from an external examination that the ligament had been torn loose and probably not united; that he could not tell from his examination whether any bones were taken out of the left foot or not aside from the little toe; that the injuries are now in such condition as to cause pain and suffering; that appellee will always have pain when there is any change in the weather, quite severe pains; that the foot will always be susceptible to cold; that it will be more sensitive to any change in temperature than the rest of his body; that these injuries would always have an effect upon his locomotion and will cause him pain and suffering.

Appellee testified as to his own injuries that the injury took off a part of his right foot and burst his left one open; that there was a pretty good deal of pain in connection with it; that he has a good deal of pain in them yet; it burns all the time. It was the right foot that was partially amputated; that they took all the bones out of the little toe on the other foot, and the toe nail was out; that he was in the hospital five weeks and five days; that he has not been able to walk yet without crutches; that when he puts his foot down to the ground it makes it burn more; that he has not been able to walk like he did formerly since he received the injury; that he cannot hear as good as he could before he was injured.

Dr. Albert Weil, who had been appellant’s physician and surgeon for 17 years, testified as to the operation on the right foot; that he unjointed the toes at the inner joint; leaving half of the ball of the foot; that appellee was practically well when he left the hospital with the exception of having an abrasion of the 'skin on the top of the right foot which was slowly healing; that there were no bones taken out of the left foot; that appellee would have a useful foot left; that he will be able to walk and do practically all those things which one could do with toes, barring the balance and a perceptible limp; that he will be able to get around without crutches; that the foot will be tender for probably a year from the time of the accident; that he will favor that foot until it becomes hardened and calloused by use; that he will not be able to get around as well as if he had his toes; that the injury will interfere with his running; that he will be able to run on that stump of a foot; that the limp will be perceptible for a long time, it might be always.

We are not prepared to say that the award of damages is excessive, or such as to show passion or prejudice on the part of the jury.

The judgment will be affirmed.

Affirmed.


text:
    National Hotel Company, Appellant, v. Dick Townsend, Appellee.
    Gen. No. 5,742.
    Landeob» and tenant—credit for rent when case is tried on a stipulation of facts. Where an action, which is partly for rent, is submitted to the court on a stipulation of facts which states that the premises were destroyed by fire during a month for which the rent had been paid in advance, it is proper to credit defendant with the rent for the rest of the month though no plea of set-ofE is filed. Certiorari denied by Supreme Court (making opinion final).
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puteebaitqh, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Dan R. Sheen and Giles E. Keithley, for appellant.
    Weil & Bartley and Nathan H. Weiss, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellant had a suit pending against appellee, and part of it at least was for rent. After suit was begun the premises which appellant had leased to appellee were destroyed by fire, on November 12, 1911. Appellee had paid $1,250 in advance for rent of that month, and upon the trial of this case he claimed a credit for $750, proportionate rental for part of the month of November, 1911, during which he was deprived of the use of the property by its total destruction. The court granted the credit and rendered a judgment against appellee, and the National Hotel Company, plaintiff below, appeals on the ground the credit should not have been allowed. Other counsel appear here for appellant than in the court below, and here claim that the allowance of the credit was erroneous, first, because there was no plea of set-off; second, because the subject-matter of a set-off did not arisei until after this suit was begun; and third, that a lessee cannot recover any rent paid by him in advance in accordance with the terms of the lease, because of a subsequent destruction of the subject-matter of the lease.

In the court below a jury was waived and all the facts stipulated except the lease, and it was put in evidence. That stipulation, after stating the facts, provided that the only question in controversy was whether appellee was entitled to this credit, and no claim was made that the plea of set-off was necessary, or that the credit should not be granted, because the fire occurred after the suit began. This is an attempt by the subsequent attorneys to get rid of the force of the stipulation. The lease contained a provision that in case the premises should be totally destroyed by fire during the term of the lease, the rent should be suspended until the premises should be repaired. We think it clear under this language, the running of the rent in favor of appellant was suspended when the fire occurred. If the tenant instead of paying in advance had failed to pay until the end of November, and suit was brought to recover that month’s rent, clearly, under the provision of the lease all appellant could recover for would be for the first twelve days, and as to the rest of the month the rent was suspended by the fire. It does not alter the legal rights of the parties that the rent was paid in advance. This $750 was for the use of the premises for a period of which appellee was deprived of their use by reason of the fire. The case of Rich v. Smith, 121 Mass. 328, is almost identical and sustains this judgment.

The court correctly decided the only question submitted by the stipulation. Judgment affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Thomas M. Frazier, Appellee, v. C. H. Altenberg, Appellant.
    Gen. No. 5,748.
    Quo wabbauto—when may be brought to oust alderman seated by city council. Where the city council, which is the judge of the election and qualification of its own members under the general act for the incorporation of cities, decides that a certain candidate for alderman was successful any citizen, not a candidate, may bring quo warranto to oust the member whom the council has seated.

      Appeal from the Circuit Court of DeKalb county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Cuffe & Cliffs, for appellant.
    E. M. Burst and H. S. Earley, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellant, Kline Shipman, and F. W. Duval were the candidates for alderman of the third ward at the annual city election held in the city of Genoa on April 16, 1912. There were no other names on the election ticket except for alderman. Beneath the vote for alderman was a question submitted concerning anti-saloon territory. Shipman’s name was under the appellation, citizens ticket, and Altenherg’s was under the appellation, citizens ticket by petition. The judges of election counted forty-five votes for Altenherg and forty-five for Shipman, and apparently the other candidate had a less number of votes. When the returns were canvassed by the city council they announced and decided the tie and Shipman was> declared successful and was seated as alderman. Thereupon appellant filed with the city clerk a petition for a contest making Shipman a defendant, and summons was issued and the contest heard at the regular meeting of the city council, and the city council rejected two ballots that had been counted for Shipman, and declared appellant elected, and he took office and entered upon his duties as alderman. Thereupon the State’s Attorney, .by leave of court, filed in the name of the People on relation of one Frazier, a citizen and legal voter of said third ward, a petition for a writ of quo warranto against appellant requiring him to show by what right he held the office of alderman of the third ward. Appellant filed three pleas, the first and third alleging his election and qualification for the office; the second set out in detail the result of the election, the result of the canvass by the city council, the existence of the tie, the seating of Shipman, the contest by appellant, the determination of said contest in favor of appellant, and his qualification and seating in office. Replications were filed and the case tried before the court without a jury, and appellant was held to have usurped the office, and there was a judgment of ouster against him. After the refusal of the court to hold certain propositions of law submitted by appellant Altenberg appealed, and two questions are raised in this court.

The city of Genoa is organized under the general act for the incorporation of cities. That act provides that the city council shall be the judge of the election and qualification of their own members. The city council exercised that function and decided in favor of appellant after rejecting two ballots which had been counted previously for Shipman. The two questions are, (1) is the decision of the city council on the contest final, or may any citizen afterward bring quo warranto proceedings to oust the member whom the city council have seated; and (2) if the Circuit Court has jurisdiction were the two ballots above mentioned, properly counted by it for Shipman.

The decisions of the Supreme Court on the question of jurisdiction are not at all conclusive. The case of Linegar v. Rittenhouse, 94 Ill. 210, intimates that the decision of the city council does not deprive the Circuit Court of jurisdiction by quo warranto.

The case of Keating v. Stack, 116 Ill. 191, was a suit in chancery to contest the election, brought by the defeated candidate against the successful candidate. It is clear equity has no jurisdiction to contest an election, and it is also clear that the proceeding in the city council is final as between the contesting candidates. The question now before the court is not whether the contesting candidates can contest an election by quo warranto, but whether the public in its sovereign capacity can oust the one in fact not lawfully elected. This proceeding being in the interest of the public (that is the relator not being one of the candidates) and this court not now touching on the provision of the law by virtue of which the city council is made the judges, of the election and qualification of its own members, but rather to show the policy of the law in quo warranto proceedings, the following cases from the Supreme Court of this state are cited. Snowball v. People, 147 Ill. 260, was a quo warranto proceeding to try the title of the appellant therein to the office of member of the board of education. It is said in that case: “The true view to take of the subject is, that the proceeding by quo warranto is not strictly an election contest between two persons claiming the same office. * * * Because the statute provides a mode of contesting elections in the County Court, it does not follow that the people, in their sovereign capacity, are thereby precluded from inquiring* by information in the nature of quo warranto into the usurpations of office. The two remedies are distinct, the one belonging to the elector in his individual capacity as a power granted, and the other to the people in the right of their sovereignty. This right of the people is not in any manner impaired by statutes granting to electors, in their private capacity as citizens, the right to contest the election of any person assuming to exercise the functions of an office.”

In People v. Keigwin, 256 Ill. 264, under the subject of proceedings in behalf of the public, it is said, neither laches nor the acquiescence of individuals, can bar the public from maintaining quo warranto proceedings.

The case of Massey v. People, 201 Ill. 409, while coming close to this question, seems not to decide it. The question there was as to the sufficiency of a plea which, set up the contest in the city council, and that the defendant qualified and took his seat. It is there held that the plea was good in substance, and showed good title to the office by the election.

It may be it was intended to say that that contest would be a bar to quo warranto; it may be that it was only intended that the plea was good, and would require a replication to assail the result of the contest set up in the plea, or the result of the election.

Coming now to the direct holdings of the Appellate Courts of this state we find that the Appellate Courts of the second, third and fourth districts, in People v. Bird, 20 Ill. App. 568 (4th Dist.); Patterson v. People, 65 Ill. App. 651 (2nd Dist.); Latham v. People, 95 Ill. App. 528 (3rd Dist.); and Garms v. People, 108 Ill. App. 631 (3rd Dist.), have decided that the decision of the contest in the city council does not bar the public from bringing quo warranto proceedings to test the right of the member whom the council has seated. This doctrine seems to have the sanction of many of the courts of other states.

In view of the decision in three of the four Appellate Court districts of this state we conclude that we should adhere to the decision of this and the other Appellate Courts, in the absence of a direct holding by the Supreme Court, and aErm the judgment of the court below on that subject, so that if the parties desire, the question may be removed to the Supreme Court for final settlement.

If the Circuit Court has jurisdiction, we are satisfied that the two ballots in question were intended by the voter to be cast for Shipman, and that the mark in the circle in front of the words citizens ticket by petition” is not a distinguishing mark, and that those two ballots were properly counted for Shipman.

We find the conclusion of the trial court in giving-judgment of ouster against appellant to be correct.

Judgment affirmed.

!Affirmed.

M-r Justice Carnes, having tried the case in the court below, took no part in this decision.


author: Mr. Presiding Justice Dibell

text:
    Alfred I. Hartshorn, Appellant, v. George Hartshorn, Appellee.
    Gen. No. 5,699.
    1. Witnesses—instruction as to weight of plaintiff’s testimony. Where plaintiff and defendant are natural persons an instruction that the law makes plaintiff a competent witness hut that the jury have a right to take into consideration his situation and interest and give to his testimony only such weight as in their judgment it is fairly entitled to, is improper though such an instruction may be given where defendant is a corporation and hence has not testified.
    2. Witnesses—when instruction as to the weight of plaintiff’s testimony reversible error. Where plaintiff is entitled to recover if his evidence is true and defendant also testifies, it is reversible error to instruct that the law makes plaintiff a competent witness but that the jury have a right to take into consideration his sitúation and interest and give to his testimony onljf such weight as, in their judgment, it is fairly entitled to.
    Appeal from the County Court of LaSalle county; the Hon. William H. Hinebatjgh, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 8, 1913.
    Coleman & Coleman and H. M. Kelly, for appellant.
    Duncan, Doyle & O’Conor, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Alfred I. Hartshorn, appellant, owns a farm of 560 acres in LaSalle county, besides other lands elsewhere in said county. His son George, appellee, is in possession. On January 13, 1912, appellant caused written notice to he served upon appellee that the sum of $4,631.15 was due appellant for rent of said premises, payment of which was demanded, and appellee was thereby notified that unless said rent was paid on or before February 6, 1912, the lease of said premises would be terminated. On February 8, 1912, appellant filed with a justice of the peace of said county a complaint that appellant was entitled to the possession of said premises and that appellee unlawfully withheld the possession thereof from appellant. Summons was issued and served upon appellee and there was a trial and appellant was defeated before the justice by a jury and an appeal to the County Court where appellant was again defeated by a jury and his motion for a new trial was denied and judgment was rendered against appellant and he prosecutes this appeal therefrom.

Appellant was 88 years old at the time of the last •trial. He lived upon these premises until 1883 and appellee lived there with him. In 1883 he moved to his other farm and he left appellee in possession of said 560 acres where appellee has ever since remained. Appellee married two years later. From 1883 to 1892 there seems to have been no special agreement between appellant and appellee, but appellant had cattle fed upon the premises, and appellant and appellee appear to have divided the proceeds of the farm about as it happened. Appellant contends that in 1892 he orally leased that farm to appellee, and that appellee was to pay him as rent therefor $1,500 per year and pay the taxes on said farm and also upon his other farm. Appellee admits that his father proposed to let bim the farm on these terms at that time, but testifies that he refused to accept the offer for the reason that the rent was too high. Appellant contends that the conversation between them was such that even if appellee refused to pay that rent, yet as appellee remained there after he knew that appellant insisted upon rent for the premises, he is legally bound to pay therefor the reasonable rental value of the land from that time till the present, under the principles laid down in Illinois Cent. R. Co. v. Thompson, 116 Ill. 159, that “a party who continues to occupy premises after being notified by the owner that if he does so he will be expected to pay rent, thereby becomes liable therefor.” The proof is that $1,500 per year would be a very low rental for that farm during that period. Appellee denies that he ever was appellant’s tenant or ever became liable to him for rent but contends that the same relation between them which existed prior to 1892 continued down to the time of the trial, and that appellant always had a part of the proceeds of the farm during that period and always had money from appellee whenever he asked for it. Appellant contends that in August. 1911, appellee notified appellant that he was going to leave the farm and that he could rent it to some one else as soon as he pleased, and that he did rent it to another party. Appellee denies this. It is very clear from the evidence that from 1892 to the commencement of this suit appellee has paid appellant very much less than $1,500 per year and very much less than the fair cash rental value of the premises and that, if appellee was liable to pay appellant either $1,500 per year or the fair cash rental value, he was several thousand dollars in arrears when the notice and demand was served upon him. In the view we take of the case we deem it unnecessary to set out in detail a history of the various transactions between .the parties during the many years covered by the evidence, but think it sufficient in that respect to say that we are not satisfied that justice has been done to appellant, and we are of the opinion that the case should be submitted to another jury.

If the jury believed the testimony given by appellant, he was entitled to a verdict. In that state of the proof the court at the request of appellee gave the jury the following instruction:

“4. The court instructs the jury that while the law makes the plaintiff a competent witness in this case, yet the jury have a right to take into consideration his situation and interest in the result of your verdict and on the circumstances which surround him, and give to his testimony only such weight as in your judgment it is fairly entitled to.”

Appellant contends that it was error to give this instruction, but' furnishes us with no authorities for his position. Appellee in his brief states that said instruction “has been passed upon favorably many times by this and other courts,” but furnishes us with no reference to the authorities he relies upon. Said instruction has been declared to be erroneous in the following and other cases: Phenix Ins. Co. v. La Pointe, 118 Ill. 384; Pennsylvania Co. v. Versten, 140 Ill. 637; City of Sandwich v. Dolan, 141 Ill. 430; City of Dixon v. Scott, 181 Ill. 116; Matthews v. Granger, 196 Ill. 164; North Chicago St. Ry. Co. v. Wellner, 206 Ill. 272; Godair v. Ham Nat. Bank, 225 Ill. 572; Helbig v. Citizens’ Ins. Co., 234 Ill. 251. We so held in Wicks v. Wheeler, 157 Ill. App. 578. Said instruction has apparently been approved in the following cases: West Chicago St. Ry. Co. v. Estep, 162 Ill. 130; Chicago & E. R. Co. v. Meech, 163 Ill. 305; West Chicago St. Ry. Co. v. Nash, 166 Ill. 528; West Chicago St. Ry. Co. v. Dougherty, 170 Ill. 379, and Chicago & E. I. R. Co. v. Burridge, 211 Ill. 9. The' case last cited shows that in fact there is no conflict between the authorities above cited. The instruction is erroneous if both plaintiff and defendant are natural persons and have testified, because it singles out the testimony of one party and makes no reference to the testimony of the other equally interested party, and it is calculated to lead the jury to understand that the court considers that there is some reason why the evidence of the party referred to in the instruction is specially subject to criticism and should be particularly scrutinized by the jury. In the cases where the instruction was held good, the defendant was a corporation and could not testify, and asked the instruction, and any instruction in regard to the evidence of the parties could only apply to the one who was capable of testifying and who had testified, and even if the instruction had been made general in terms, it would be understood by the jury to apply only to the plaintiff, who had testified and for that reason it was not error to give the instruction which sper daily referred to the plaintiff. This explanation of the difference between the two classes of cases also appears in North Chicago St. Ry. Co. v. Wellner, supra. While the giving of this erroneous instruction is not always considered reversible error, yet we consider that it was specially injurious in this case, where appellant was entitled to recover if his evidence was true, and where appellee also testified.

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.


text:
    Jacob Auman et al., Appellants, v. Perry W. McKibben, Appellee.
    Gen. No. 5,739.
    1. Fraud—statements as to value. Statements as to the value of a business or of property made to induce one to huy or invest money, are as a general rule treated as expressions of opinion, and if so intended and understood do not constitute fraud, in the absence of any concealment or misrepresentation of material, extrinsic facts.
    2. Fraud—false' statements as to value. False statements as to value of corporate stock by defendant, having superior means of knowledge, made to induce complainant to trade his store for it, constitute fraud.
    3. Tender—where sale is rescinded for fraud. A statement, in a hill to rescind a sale for fraud, that complainant offers to deliver up the shares of stock and money received as consideration, is a sufficient tender.
    4. Appeals and errors—«Aera error is not raised in lower court. On a bill to rescind a sale for fraud, the Question whether complainant made sufficient tender of return of the consideration cannot be raised for the first time in a court of review,
    5. Parties—MU to rescind sale. On a hill to rescind a sale for fraud, a third person to whom shares of stock were delivered to he held for complainant, need not he made a party to the suit where it appears on the trial that the shares are in complainant’s possession.
    6. Kbaud—when contract rescinded for. Where it appears on appeal that defendant, representing he would pay complainant part cash for a store and furnish certain valuable stock as collateral for the remainder which he would be able to pay a month later, induced complainant to sign a bill of sale when the stock was practically worthless and defendant did not intend to pay the remainder of the purchase price, a decree dismissing the bill for want of equity will be reversed and remanded with directions to enter a decree rescinding the sale.
    Appeal from the County Court of Stephenson county; the Hon. Oscab E. Head», Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed April 8, 1913.
    B. B. Tiffany and B. P. Eckert, for appellants.
    William 1ST. Cronkrite and Elwyn B. Shaw, for appellee. .
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Jacob Auman owned a store building in Kent in Stephenson county and lived over the store and in rooms attached to or adjoining the store. He and his son, George, conducted a general country store in the store part of the building, with a stock of dry goods, groceries, boots and shoes, etc. George wished to return to farming and Jacob did not feel able to conduct the store alone. For that reason they wished to sell the stock of goods, and placed it for sale in the hands of Sheridan, a real estate agent in another town. On July 22, 1909, Sheridan introduced to them Perry W. McKibben as a prospective purchaser, and A. L. Wolfe, and then went away on other business. Before the close of the day, a contract was made for the sale of the goods by the Aumans to McKibben at the invoice price, except as to shopworn goods, and for the sale of those at the price at which appraisers should fix their value. Each party was to select one appraiser and they a third if necessary. One hundred dollars was paid down on that day. McKibben came with his appraiser on July 26, and four days were spent in making the appraisement and, after excluding the feed, located in another building, and which McKibben concluded not to buy, the price was fixed at $4,410, and a certain payment was made and the store was surrendered to McKibben, who had also taken from Jacob A liman a lease of the building under date of July 26. Very soon after taking possession McKibben began to box up the goods. Kent is on the Chicago & Great Western Kailway, and McKibben ordered a car- to Kent to be billed to Dubuque, Iowa. The Aumans became alarmed, concluded they had been defrauded, went to the county seat during the night, employed counsel, prepared and filed a bill in equity for the rescission of the contract on the ground of fraud, and obtained an injunction restraining the removal of the goods, which was served at noon of the following day. McKibben answered and moved to dissolve the injunction. Many affidavits were filed, the motion was heard, and the trial judge permitted McKibben to file a bond and take away the goods. They were then removed to Waddams Grove and afterwards to Warren and were there sold. Amendments were filed to the bill, the answer was extended to the bill as amended, the cause.was referred to a master, who took and reported the proofs, and there was a hearing and a decree dismissing the bill for want of equity, from which decree the Aumans prosecute this appeal.

We conclude that the following facts are established by a preponderance of the evidence and the more material matters by a clear preponderance of the evidence.

Kent is a village of about 100 persons in a farming community. The Aumans were Pennsylvania German by' descent; had had a mere country common school education; had been farmers most of their lives; and were obviously unacquainted with the sharp practices of the business world. Appellee was a shrewd business man, who had traveled far and wide. He had been a number of years a traveling salesman for the Elliott Manufacturing Company, a corporation located at Warren on the Illinois Central Bailroad in said county, engaged in the manufacture and sale of anti-rust and heavy tinware. He had ceased to be in their employ and was traveling for another corporation at the time in question. He lived at Warren, and so did A. L. Wolfe whose business was sellingWestern lands, incandescent lamps and fire insurance. Appellee, ostensibly brought Wolfe to Kent with him to value the stock of goods, but Wolfe had no experience which specially fitted him to perform that office. Appellee and Wolfe looked casually at various articles of merchandise in the store and praised the stock. They examined the book showing the amount of daily sales and professed to be surprised and pleased. They inquired into the financial responsibility of the farmers in that neighborhood who were the patrons of the store. Wolfe took the opportunity when he had George Auman on one side to tell him that appellee was a man of means and able to pay cash. Appellants stated that they would sell for cash, if they could get their price. Appellee tried to get them to offer to sell at a lump sum. Appellants refused to sell, except at the invoice price, which George Au-man said would be $5,000, or more, and in which he was correct, as the invoice showed that the goods finally sold, and the feed, which was not sold, invoiced over $5,000. Appellee professed himself satisfied with the goods, with the store and with the method proposed for invoicing. He stated that he was buying for the purpose of placing his son-in-law there because dissatisfied with his manner of life. He stated that he wished to get his son-in-law into business in a quiet place where he could not get anything to drink. Appellee said that if he bought, he should remove the post office which was in the store, and should fill up that space with $1,800 worth of new goods. He ascertained what Jacob Auman would charge him as rent for the building, and said the rent proposed was reasonable, and he should rent it if he bought the goods. He said his son-in-law had a large piano and asked how they could get it upstairs. He asked permission to redecorate the store, and was told by Jacob that he could do so if he did not injure the building. He stated that he should remove the wooden awning and wooden sidewalk in front and replace the latter with cement. Up to this time all talk had been upon a cash basis. After everything had been orally agreed to, he told appellants that as he would have to expend $1,800 for new goods (though one to two witnesses put this at $1,200), and intended to decorate the store at considerable expense, he could not pay all cash at once; that he had $4,000 coming in on the first day of September, and that he would pay $100 down and as soon as the invoice was completed he would pay all but $4,000 at once, that he would deposit with them certificates of the capital stock of the Elliott Manufacturing Company of the par value of $4,000, as collateral security for the payment of said $4,000 on the first of September. He produced certificates of that stock, aggregating the par value of $4,000. Appellants told him that they knew nothing about the value of this stock. He told them that it was as good as gold, that it was worth one hundred cents on the dollar and was salable at that price at any bank; that the gold seal upon the certificates, or one of them, was evidence that the State of Hlinois stood behind it; that he would not sell it at any price and would only pnt it up as collateral upon having from them a written contract binding them to deliver back to him these certificates upon his paying the $4,000 on September first. He called upon Wolfe to verify these statements by him as to the value of this capital stock, and Wolfe gave assurances supporting him. These assurances were repeated in many different ways in response to repeated statements by appellants that they knew nothing about the Elliott Company or the value of these certificates. When Mrs. Jacob Auman protested that they knew nothing about the value of those shares, he assured them that he would not rob them or deceive them. He also said to them that they were going to have as security for the $4,000, not only the shares of stock worth $4,000, but also the merchandise which they had told him would inventory $5,000, and also the $1,800 of new goods which he was going to put in, making in all $10,000 worth of security, and he asked what more they could want as security. The proof shows that appellee was a very smooth, persuasive and constant talker. They fin ally agreed to accept the shares of stock as collateral security. Appellee then proposed that Wolfe draw the papers. Appellants insisted that the papers should be drawn by their neighbor J. F. Keister, a farmer ánd a justice of the peace. When appellee found that appellants would not consent to let Wolfe draw the papers, he consented that they be drawn by Keister. George went and brought Keister. The bargain was stated to him as we have above stated it. Wolfe produced printed blanks, which he had brought with him. Wolfe and Keister sat at a table and Wolfe dictated what should be erased from the printed blanks and what should be inserted, and Keister wrote at his dictation. While this writing was being done, appellee kept appellants engaged in conversation. At one place Keister told Wolfe that it seemed to him that he was making appellants buy these shares of the Elliott stock, but Wolfe assured him that he was doing no such thing; that the stock was not for sale and that they could not buy it; and Keister thereupon went on writing as directed. After the papers were finished Wolfe read them aloud and they were signed. - Appellant then placed these certificates of the Elliott stock in the hands of Keister and said to him that he should lock up these certificates in his safe and give them back to him when he paid the $4,000 on September first. Appellee then asked that the store be locked up and he be given the keys, but this was refused because of the post office. Appellee and Wolfe then went away. The time was fixed when appellee should return for the invoicing. One contract executed on July 22, headed “Earnest Money Contract of Sale,” described the consideration as “The sum of amount goods will invoice dollars ($..........) on terms as follows: Dollars ($100.00) in hand paid as above and $4,000 secured by 40 shares of stock in the Elliott Manufacturing Company of Warren, Illinois, of the par value of $100 each and the balance of invoice to be paid in cash at the time invoice is complete, payable on or before the dates as named above.” A bill of sale then executed contained no reference to the shares of stock but described the consideration as “The sum of amount goods will invoice dollars.” A third paper then executed was an option contract, describing these shares of Elliott stock, and thereby Jacob Auman agreed to hold them till noon of September 1, 1909, and to deliver them subject to the order of appellee or his assigns upon receiving $4,000, and if appellee did not exercise that option by the date named he was to forfeit $5. These papers therefore were inconsistent. The so-called “earnest money contract” said that $4,000 of the purchase price of the merchandise was secured by the 40 shares of Elliott capital stock, while the option contract made Jacob Auman the owner of the shares unless appellee chose to exercise an option to buy them by the first of September. Appellants did not have a copy of the option contract till July 26.

The Elliott Manufacturing Company had a small plant, employed 20 or 30 men, besides sales agents traveling in the northwest. It had paid no dividends since 1906. Appellee introduced proof that the Company paid a dividend in 1907 and paid dividends in 1911 and 1912, since the commencement of this suit, but appellee finally conceded in his testimony that it had paid no dividends since 1906. This capital stock was not worth one hundred cents on the dollar; it was not as good as gold; it was not salable at any bank for any sum, and it had no market value. The State Bank of Warren was the bank where the Elliott Company made its deposits and borrowed money, and these particular shares of stock had been in that bank for a number of years as collateral for loans it had made to appellee and had extended and increased from time to time, and it was its insistence that appellee should take up these certificates and reduce his indebtedness to the bank which led to the transactions involved in this suit. Carson, cashier of that bank, testified for appellee in chief that these shares were worth from seventy-five to one hundred cents on the dollar. Upon his cross-examination it was clearly developed that he possessed no information which would justify him in that statement; that in fact the shares had no market value and that he himself would not give ten cents on the dollar for them. The Elliott Company apparently could not borrow more money, and it had issued preferred stock for the purpose of raising money. It was a going concern, and its stock might some day have a market value, and conservative estimates fixed its probable value at that time at ten to fifteen cents on the dollar. It had no resemblance to the “cash” for which appellants orally agreed to sell and which appellee orally •agreed to pay.

Within the two months last preceding this transaction, appellee had made at least three efforts to unload this capital stock in three other villages in the surrounding country. He first tried to sell this capital stock for a stock of merchandise. At another place he tried to buy a livery stable and at still another a stock of merchandise, and in each of these last two cases he proposed to secure payment in cash at a later date by a deposit of these 40 shares of Elliott stock, at one of them on September first, when he would have $4,000, and at the other place in six months. In each case he either went attended by Wolfe or Wolfe appeared while the negotiations were pending. In each case his excuse for buying was his desire to get his son-in-law into business in a quiet place, free from certain allurements and temptations.

In fact, it is clear that appellee did not intend to operate a store in Kent, either personally or by his son-in-law. When he took these certificates from the State Bank of Warren, just before he went to Kent, he agreed to transfer his interest in the goods immediately to the bank. He claims that he agreed to give the bank a chattel mortgage upon the goods, and that, after the preliminary transaction, the attorney for the bank insisted on a bill of sale. He did execute a bill of sale forthwith to the bank. He assigned his lease of the building to the bank four days after he received it from Jacob Auman. He claims it was the bank that sought to remove the goods, but he was the one who attended to the boxing of the goods and who had ordered a car to be loaded for Dubuque. He now claims that when the car reached Dubuque, it was to be sent to Warren over the Hlinois Central. We regard it as clear that all bis praise of the quality of the merchandise, his inquiry into the financial responsibility of the people who traded at the store, his taking a lease of’ the premises for one month with a privilege of twelve, his statement that he should put in $1,800 worth of new goods, and many other things which he said and did on the 22nd of July, which we have not set out, were merely blinds to gain the confidence of appellants and get this capital stock into their possession in such a way that it would in fact be applied at par as a payment upon the merchandise, which merchandise the proof shows was worth all appellee agreed to pay for it, besides the good will of the business.

We are not unmindful that the evidence is conflicting. Appellee and Wolfe testified that appellee offered the stock in payment for the goods and that appellants accepted it as such payment, and that no suggestion was made that it be left as collateral security for $4,000 in cash to be paid on September first. Not only is there a clear preponderance of oral evidence against appellee on this subject, including the testimony of disinterested witnesses, but there are many circumstances that dispute this claim. If appellee’s contention is true, and if, as appellee and Wolfe claim, there was no suggestion that $4,000 in cash would be paid appellants on September first and that the certificates of stock should be deposited as collateral security for such payment, how did it happen that in the “earnest money contract” a part of the consideration was put in writing as $4,000 secured by 40 shares of stock in the Elliott Company of the par value of $100 each? The testimony of appellee and Wolfe furnishes no answer. Appellee claims that he took the option contract because he did not like the secretary of the Elliott Company, and he hoped that that secretary would soon be removed, and then he might wish to again become traveling sales agent for that company, arid might wish to own some of this stock. But there are no facts shown to support that claim, and we think it the more reasonable to conclude that it was an afterthought. In several important respects the testimony of appellee is inconsistent with the statements made in his answer, which was also under oath.

It is contended here that what appellee and Wolfe said as to the value of this stock was mere puffing, in which the law permits the seller to indulge. The parties were not upon an equal footing. Appellee and Wolfe were men of much better education than appellants and had a very much wider knowledge of business transactions than did appellants. Appellants were unacquainted with corporate transactions and with the Elliott Manufacturing Company, except that the proof seems to show that a relation of George Aiiman’s wife worked for the Elliott" Company. Neither of appellants had ever seen a certificate of stock before, nor had either of them ever heard of the Elliott Manufacturing Company before, though they had heard that there was a tin factory at Warren. Appellee lived in Warren, had worked for the Elliott Company several years, had held these shares of stock several years, knew that the company did not pay dividends, knew that in repeated efforts he had been unable to dispose of the stock either at a sale or as collateral security, and undoubtedly knew that it had no salable value and that it was not as good as gold and was not worth one hundred cents on the dollar or anything like that. We are of opinion that the rule stated in Biewer v. Mueller, 254 Ill. 315, on page 323, is applicable here:

“The property about the misrepresentation of the value of which complaint is made, was not the property directly involved in the trade. It was collateral to the principal transaction, part of whose terms it was designed to secure, and the representation was made, not to induce the appellees to purchase the property, but to accept it as security. The general rule is, that statements as to the value of a business or of property, made to induce one to buy or invest money, are treated as expressions of opinion, only, and if so intended and understood do not constitute fraud, in the absence of any concealment or misrepresentation of material, extrinsic facts. ‘The reason of the rule is that such statements are expressions of opinion; but where .they are made with the intention that they shall be understood as statements of fact, and not as the expressions of opinions, they will constitute fraud.’ (Leonard v. Springer, 197 Ill. 532; Murray v. Tolman, 162 Ill. 417; Allen v. Hart, 72 Ill. 104.) The false statement of value was here made by Mueller, having superior means of knowledge, and was relied upon as a matter of fact and not opinion. It constituted fraud, which violated the agreement entered into partly in reliance upon it.” See also Miller v. John, 111 Ill. App. 56.

It is contended that appellants should have made a formal tender to appellee of the $410 received and of these certificates of stock, before filing this bill. In the bill complainants said: “Tour orator hereby offering to deliver up the said certificates for the said 40 shares of the said capital stock of the said company and the assignments thereof and the said lease and to repay to the said McKibben the sum of $410, paid to your orators by the said McKibben.” We think this a sufficient tender, and, if not, the point was not raised in the court below and. cannot be raised here for the first time. It is urged that Keister was a necessary party because, according to the testimony of appellants, the stock was delivered to him and is perhaps in his control. This point was not raised below; and complainants offered the certificates in evidence and therefore had them in their apparent control. The record includes the written opinion of the trial judge, and it there appears that he found as we have done on all questions of fact, except that he did not conceive that complainants had sufficiently shown the lack of value of the Elliott stock. We are of opinion that under the proofs not only were the representations concerning the value of the Elliott stock false and fraudulent, but also that, if the stock were of substantial value, still appellants sold the goods and appellee bought them upon his agreement to pay $4,000 in cash therefor on September first, and that appellants were deceived and defrauded by the form which Wolfe, the agent of appellee, caused the writings to assume, and that appellee did not intend to pay $4,000 for these goods on September first, nor at any other time, and that he had no money due to him on September first, from which he could have made such a payment.

The decree is therefore reversed and the cause is remanded with directions to enter a decree rescinding the sale for fraud, requiring appellants to surrender the certificates of stock to appellee, giving credit to appellee for the $410 paid, and as appellee has sold the goods and hence cannot return them, giving to appellant a decree against appellee for $4,000, (to be paid after the certificates are returned to appellee,) with interest thereon at five per cent, per annum from July 29, 1909, the day when appellants surrendered possession of the goods to appellee.

If Keister holds the certificates of stock and will not surrender them, appellants should be given the right to bring him in as a party before the decree is entered.

Reversed and remanded with directions.


text:
    Laura Cochran, Administratrix, Appellee, v. Kankakee Stone & Lime Company et al., Appellants.
    Gen. No. 5,741.
    1. Negligence—dangerous premises attractive to children. Where the owner of land has unguarded dangers thereon, of such a nature as to he attractive to childish curiosity and instincts, such attractions are regarded as holding out implied invitations to children of tender years to come upon the premises, and the owner must use ordinary care to keep them in safe condition.
    2. Negligence—dangerous premises attractive to children. Where an injury results to a child from unguarded conditions upon the premises of another, the questions whether the premises are dangerous, or calculated to he attractive to a child of tender years and liable to lead such child into danger, and whether the child lacked such intelligent capacity and experience as to bring it within the protection of the rule, are for the jury.
    3. Landlord and tenant—both liable for dangerous premises. Where premises are rented in a bad state of repair the landlord is liable for injuries caused thereby to third persons, as well as the tenant.
    4. Evidence—of no previous accident incompetent. In a case for damages for the death of a child, who was drowned in a pond, evi< dence that no person had been drowned there before, is incompetent.
    5. Instructions—abstract propositions. Giving of an instruction, stating an abstract proposition of law which is correct and does not mislead the jury, is not error.
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 8, 1913.
    Hunter & Schneider, for appellant Stone & Lime Co.
    H. K. & H. H. Wheeler, for appellant Quarries Company.
    Cooper & Hobbie, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Harry Walter, a child, was drowned in a pond within the city limits of Kankakee. He left a mother, a brother and a sister, surviving him. His administratrix brought this suit to recover damages for the loss to the next of kin by his death. The suit was against the Kankakee Stone & Lime Company and the Kankakee Quarries Company. Each pleaded not guilty, and the former also pleaded the Five-Year Statute of Limitations. At the first trial there was a verdict of not guilty. A new trial was granted and at the next trial plaintiff had a verdict against both defendants for $1,250 and a judgment, from which both defendants prosecute this appeal.

Where the owner or occupant of land has unguarded dangers thereon, of such a nature as to be attractive to a child and to appeal to his childish curiosity and instincts, such dangerous attractions are regarded as holding out implied invitations to children of tender years to come upon the premises for their own pleasure, and the owner or occupant of the premises must use ordinary care to keep them in safe condition, because such children, being without judgment, are liable to be drawn by childish curiosity into places of danger and to be there injured by reason of such unguarded attractions. In any given case where an injury' results to a child from unguarded conditions upon the premises of another, the questions whether the premises are dangerous, whether they are calculated to be attractive to a child of tender years and liable to lead such a child into danger, and whether the child had such a lack of intelligent capacity and experience as to bring him within the protection of said rule, are questions of fact for the jury. These principles are stated and enforced in Linnberg v. City of Rock Island, 136 Ill., App. 495 and 157 Ill. App. 527, after which latter decision the Supreme Court denied a certiorari. The cases cited in those opinions need not be recited here.

The premises were a quarry, which had been excavated by the Stone & Lime Company some twenty years before and had filled with water. The banks were in many places precipitous and the water was so déep that a child falling therein could not get out. There were fish in the pond and shelves of stone on the margin of the pond, where one could sit and fish. The pond was in a residence neighborhood, and near several schools. There was a fence along the pond, a part of the way, but there was a gate from the street which had been down for from a week to a month or longer and, at another place, an opening in the.fence sufficient to permit persons to pass through to the pond. Many children went there in the winter to skate and in the summer to fish. On the margin of the pond was an old boiler and engine, long since unused, about which the children often played. The deceased was ten years, ten months and six days old, and he and his mother’s family had lived in Kankakee but two weeks. On Sunday afternoon, April 17, 1910, he and some playmates, younger than he, went to the pond to fish, while his mother was away from home. He prepared for fishing by getting a willow pole, a piece of string, a bent pin and some bread for bait. When they reached the pond he sat down and appeared to begin to fish, while his mates went a little further on to where the engine and boiler were. Various persons heard an exclamation by him and saw him in the water or just falling into it, but no witness saw what caused him to fall. The day before he had gone there, and his mother had punished him for so doing. It is clear that the evidence makes a case for the decision of the jury upon the questions of fact above stated. The age of the child was not greater than in some of the reported cases, where a liability has been held to exist. The fact that the mother chastised her boy for going to the pond the day before tends to show due care on her part. The fact that the boy went there the next day in spite of the punishment, and equipped with the childish material above mentioned, tends to show his childish character and the lack of mature judgment. The state of the evidence would not warrant our reversing the conclusion of the jury upon the facts.

The premises were owned and had been for many years by the Kankakee Stone & Lime Company and it created the conditions which were dangerous and attractive to children of tender age. While they were in that condition, on March 30,1906, it leased the premises to the Kankakee Quarries Company for five years and gave the lessee the right to make excavations and quarry and sell stone, etc., thereon. In the lease it was provided that the lessor within nineteen days from that date would construct and thereafter maintain a woven wire fence around and along said premises, where they were adjacent to a public street or place, which fence should be four feet high and of such strength and so constructed as to be suitable and sufficient to keep persons and animals off from said property and to protect them from the danger of entering or falling upon or into said property or any part thereof. This provision in the lease was a recognition by both parties of the danger of the pond, and the fence that was there when this child was drowned was not a compliance with the lease. The law is that where premises are rented in a bad state of repair, the landlord is liable for injuries caused thereby to third parties, as we held in Everett v. Foley, 132 Ill. App. 438, where the authorities are collected. The joint liability of both defendants was therefore established by the evidence, under the rules of law above stated.

The court refused to permit defendants to prove whether or not any child or person had been drowned in that quarry before the drowning of Harry Walter. This ruling was not erroneous. It would not have been a defense that no one ever had been drowned there before. The depth of the water and the precipitous sides of the quarry hole were such that every person acquainted with the premises must have known that if a child fell therein, it was sure to drown unless speedily rescued by some one else. That it was known to the defendants to be dangerous is also shown the provision inserted in the lease. That it was attractive to children is shown by the large numbers of children that had frequented the place regularly for years. The question of the competency of the evidence has been settled against the contention of appellants in Hodges v. Bearse, 129 Ill. 87; Mobile & O. R. Co. v. Vallowe, 214 Ill. 124; and Chicago, W. & V. Coal Co. v. Brooks, 138 Ill. App. 34.

Complaint is made of the first instruction given at the request of appellee. It is the same in substance and effect as the first instruction approved in Chicago & J. Elec. Ry. Co. v. Patton, 219 Ill. 214. Appellee’s third instruction was based upon the law relative to premises attractive to children of tender years, but did not define the rules for determining whether a child was of tender years, but it stated the rule of law correctly and did not direct a verdict and therefore did not assume, as is argued, that the deceased was a child of tender years. The fifth instruction was an abstract proposition but was correct and did not mislead the jury and under such circumstances the giving of an abstract proposition is not error. We think the seventh instruction not erroneous, and the eighth is supported by the principles we have above stated. The city of Kankakee owned some of the premises adjacent to the premises of defendants upon which this pond was located, and the gate above referred to properly belonged to the city, and the object of the ninth and tenth instructions was to advise the jury that, even if they believed that the city of Kankakee was negligent and that that negligence contributed to the death of Harry Walter, that would not constitute a defense in behalf of appellants, and we conceive that those instructions stated the law and were properly given in this case. Several instructions were given in behalf of both defendants, and others in behalf of the Stone & Lime Company, and others in behalf of the Quarries Company, and the jury seems to have been very fully instructed for the defendants. So far as the instructions offered by any defendant were modified or refused, we are of opinion that those things of which they were deprived by such modification or refusal were sufficiently embraced in the instructions that were given for appellants. It may be that the rules of law in what are commonly known as “the turn table cases” have been extended far in applying them to ponds of water, as in City of Pekin v. McMahon, 154 Ill. 149, and the Linnberg cases, supra, and other like cases, but we regard that application as too firmly fixed in the jurisprudence of this State to be now denied.

The judgment is therefore affirmed.

Affirmed.


text:
    Daniel T. Phenix, Appellant, v. Samuel Wilson, Sheriff, Appellee.
    Gen. No. 5,744.
    1. Executions—6ill of sale. To secure loans and advances, a bill of sale was executed for an automobile, which was delivered to the creditor and later seized by a sheriff under a deficiency decree against the debtors. Held, that the bill of sale was a bona fide transaction, and that replevin would lie against the sheriff.
    2. Appeals and erbobs—failure to assign cross-errors. Where an appellee fails to assign cross-errors, he cannot maintain a charge of fraud against appellant.
    Appeal from the Circuit Court of Henry county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 8, 1913.
    Sturtz & Ewan and John T. Cummings, for appellant.
    Anderson & Andrews, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The proofs in this case show that Grace L. Ladd and Ernest C. Ladd, her brother, were largely indebted to Daniel T. Phenix and expected from bim further advances. To secure him therefor, Grace L. Ladd, with the sanction of Ernest C. Ladd, executed to Phenix a bill of sale of certain personal property including an automobile. Afterwards Phenix took possession of the automobile and had possession thereof when it was seized by the sheriff upon an execution against Ernest C. Ladd and Grace L. Ladd under a deficiency decree against them in favor of John H. Ladd in a certain chancery proceeding wherein Ernest C. and Grace L. Ladd sought to redeem certain premises from a deed which they had given John H. Ladd, their uncle, Thereupon Phenix brought this replevin suit against the sheriff to recover said automobile and filed the usual declaration, charging a wrongful taking of the automobile and a wrongful detention thereof. The sheriff pleaded non cepit, non detinet and a special plea setting up said execution and his levy upon said automobile and that it was the property of Ernest C. Ladd and of Grace L. Ladd and not of the plaintiff, and was subject to execution. Plaintiff replied that said automohile was the property of the plaintiff and not of Ernest C. Ladd and of Grace L. Ladd. There was a verdict and a judgment for the defendant, from which Phenix appeals.-

The court gave the jury three forms of verdict, one if they found the issues for the plaintiff generally, one if they found the issues for the defendant and also found that Ernest C. Ladd was the sole owner of the automobile, and another if they found the issues for the defendant and that plaintiff was the owner of an undivided half of said automobile. The jury adopted the form of verdict last above stated and thereby found that Phenix was the owner of an undivided half of said automobile. This was equivalent to finding that Ernest and Grace had been joint owners of the automobile and that the bill of sale by Grace conveyed title to Phenix for one half of the automobile and that the title to the other half remained in Ernest and was subject to levy under said execution. The main effort of appellee was to prove that the bill of sale to Phenix was fraudulent and designed to prevent John H. Ladd and other creditors of Ernest and Grace Ladd from resorting to the property covered by said bill of sale for the purpose of collecting their debts. The verdict was equivalent to finding that the transaction was not fraudulent. Appellee has not assigned any cross-errors and we therefore must treat the transaction as free from fraud, notwithstanding appellee seeks to support the judgment chiefly by arguing that the proof shows that the bill of sale was a fraud.

Treating the transaction as relieved of the charge of fraud, we are of the opinion that the jury should have found from the evidence, either that Grace owned the entire automobile, or that Grace and Ernest owned it and that she made the bill of sale to Phenix with the knowledge and approval of her brother; and also that she made the bill of sale as security both for what she owed appellant and what her brother owed appellant, and also for what appellant might thereafter advance to either, and that since that bill of sale was made and before the levy, appellant made other advances to Ernest in reliance upon the bill of sale as security, and that appellant is entitled to hold the automobile as security for those debts, both as against the sheriff and as against John H. Ladd, the execution creditor; and that the amount of these debts exceeds the value of the automobile. The verdict therefore should have been for appellant under the evidence.

Since the trial of this' case in the court below we reversed the decree in favor of John H. Ladd, under which the execution in question was issued. Ladd v. Ladd, 175 Ill. App. 101. The nature of our decision in that case was such that in that case John H. Ladd will either receive all that is due him or he will take the real estate involved in that proceeding in full satisfaction of his claims, and he will not thereafter be a creditor in any matter involved in that litigation and, unless Ernest or Grace owed him some other debt, no fraud could be committed upon him by any transfer of this automobile.

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.