text:
    J. R. Kepple et al., Appellants, v. Philip Stoddard, Appellee.
    Gen. No. 5,992.
    (Not to foe reported in full.)
    Appeal from the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action by Philip Stoddard against J. B. Kepple and others, for the balance dne on the purchase price of a horse sold the defendants. There was a judgment in favor of the plaintiff, and the defendants appeal.
    The evidence tended to show that the horse was to be delivered to the purchasers in a day of two after the sale; that the seller delivered the animal to the father of the purchasers under an agreement between the parties whereby the horse was to be pastured by the father where the purchasers could get the animal when they wanted it. While in such pasture the horse was injured by coming in contact with a wire. The only question at the trial was whether there had been a delivery to the purchasers.
    An objection was sustained to questions asked the defendants about the ownership of land, and their condition as to pasturage at the time of the transaction.
    Daugherty & Marsh for appellants.
    Williams, Lawrence, Welsh & Green, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 128*—when delivery to third person sufficient. Where the seller of a horse agreed with the purchaser that it should be pastured by the latter’s father until the former was ready to take the animal, delivery to the purchaser was complete by delivery to his father, and the title thereby passed.

2. Sales, § 128*—when delivery of chattel to purchaser question for jury. Whether a delivery of the horse by the seller to the purchaser’s father was in fact made is a question for the jury.

3. Sales, § 326*—when objection properly sustained to questions. In an action for the price of a horse which the seller claimed to have delivered to the purchaser by turning it over to the latter’s father for pasturing, an objection was properly sustained to a question aslted the purchaser as to his ownership of land and as to his having pasturage.

4. Witnesses, § 223*—when credibility of icitnesses for jury. The credibility of witnesses as well as the weight to be given their testimony are questions for the jury.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    Ruth Bigelow, Appellant, v. Charles Burnside et al., Appellees.
    Gen. No. 5,998.
    Fences, § 6

      —when owner liable for failure to maintain. Before a landowner may recover from an adjoining owner for rebuilding a portion of a division fence, which the latter is by agreement bound to maintain, there must be an adjudication by the fence viewers under section 6 of chapter 54 of the Revised Statutes (J. & A. % 5706).
    Appeal from the Circuit Court of Knox county; the Hon. R. J. Grier, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    R. D. Robinson, for appellant,

      Hardy, Welsh & Hardy, for appellees.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This suit was instituted by the appellant, to recover the cost of repairing and rebuilding a division fence. The appellant and appellees are adjoining landowners, and there is a division fence between their respective farms. In the year 1876, the appellant and Thomas Clark, the father of appellees, from whom they inherited their farm, entered into an agreement, whereby the appellant was to keep up the north half and Thomas Clark was to keep up the south half of this division • fence. The appellant claimed that the south part of the division fence, which was to be kept up by appellees, became dilapidated and out of repair, and that it was necessary to rebuild it. She thereupon gave written notice that unless the appellees “make and maintain their proportion” of the division fence in question, within sixty days from the date of the service of the notice, the appellant would make said fence at their expense. The appellees did nothing, and after the lapse of sixty days, the appellant caused appellees’ part of the division fence to be rebuilt, and then brought this suit to recover the cost of such rebuilding.

A jury trial was had in the Circuit Court of Knox county. It was admitted on the trial that the question of the neglect to repair and rebuild the fence, and the necessity therefor, had never been submitted to fence viewers,-for examination' and decision; and the court thereupon directed a peremptory verdict for the appellees, which was returned, and a judgment rendered thereon.

Practically, the question brought before this court for determination is, whether it was a legal prerequisite to a recovery that the matter of the neglect and the necessity of repairing and rebuilding the division fence be submitted to legally constituted fence viewers. We are of opinion that section 6 of chapter 54 of the Revised Statutes (J. & A. 5706) is applicable to and governs the matter in controversy, and that it was necessary, as a basis for recovery in this case by appellant, to show that the provisions of that section in regard to the intervention of fence viewers had been complied with before instituting her suit; and the court, therefore, committed no error in instructing the jury, in the absence of such showing, to find a verdict for appellees.

The judgment should be affirmed.

Affirmed.


author: Me. Justice Niehafs

text:
    Ollie H. Gillette, Appellee, v. The Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 5,999.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action by Ollie H. Gillette against the Chicago, Milwaukee & St. Paul Railway Company, for damages caused a growing crop of corn which was overflowed as the result of the defendant driving the piles of a bridge so closely together as to obstruct the waters of a stream during heavy rains or freshets. From a judgment in favor of the plaintiff, the defendant appeals.
    Ralph E. Eaton, for appellant.

      Abstract of the Decision.
    1. Railroads, § ' 334

      —when injury to crops by overflow proximate result of obstruction of stream. Evidence that a railway company obstructed a stream by driving piles closely together, which in times of heavy rains or freshets caused the water to back up on the plaintiff’s land to the injury of his crops, is sufficient to sustain an inference that the negligence of the railway company was the proximate cause of such injury.
    2. Evidence, § 478*—when inference of ultimate facts sufficient to sustain verdict. Where evidentiary facts fairly justify an inference of the ultimate facts to be proved, their probative force is sufficient to sustain a verdict.
    3. Railroads, § 348*—evidence as to obstruction backing up waters of stream. A witness may testify in an action for damages to crops caused by a railway company placing piles so closely together in a stream as to cause the water to back up during heavy rains or freshets, as to his observations of the waters at that time.
    4. Railroads, § 348*—evidence as to effect on crops of backing up water of stream. In an action against a railway company for damage to crops caused by the waters of a stream backing up, in which the defendant had placed piles closely together, a witness may testify as to the effect of the overflow of the waters on the crops.
    5. Railroads, § 348*—evidence of effect of obstruction on waters of stream. A witness may testify, in an action against a railway company for damages to crops caused by the backing up of the waters of a stream in which 'the defendant had driven piles closely together, as to the effect on the waters of trees, brush, weeds and straw lodging between th,e piling.
    6. Railroads, § 352*—when instructions sufficient as to liability for obstructing stream. An instruction in an action against a railway company, for damages to crops from the waters of a stream backing up as the result of the defendant placing piles closely together in the stream, as to the liability of the company for overflow of waters during such a heavy rain or freshet as could have been reasonably anticipated, is not bad because of the omission of the words “by an ordinarily prudent person,” where such qualification was fully covered by other portions of the court’s charge.
    F. J. Stransky, for appellee.

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

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

   Me. Justice Niehafs

delivered the opinion of the court.

7. Instructions, § 159 —lohen instructions considered as a whole. In determining the sufficiency of a portion of an instruction, the charge must be taken’ and considered together as a whole.

8. Railroads, § 352*—instruction requiring finding to he based on allegation of declaration instead of proof. An instruction in an action against a railway company for damages caused a crop by the backing up of water as the result of the defendant placing piles closely together in a stream, held not to permit the jury to find the negligence of the defendant from the allegations of the declaration, but to require it to be found from the proofs.


text:
    L. O. Eagleton, Administrator, Appellee, v. Prudential Insurance Company of America, Appellant.
    Gen. No. 6,044.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action by L. 0: Eagleton, as administrator of the estate of Rachel Maloff, deceased, against the Prudential Insurance Company of America, to recover on two policies of insurance on the life of the deceased, dated December 4, 1911, and January 29, 1912. From a judgment in favor of the plaintiff, the defendant appeals.
    Each policy contained a condition that the company’s liability should “be limited to a return of the premiums paid hereon if the insured dies before the date hereof, or if on said date the insured be not in sound health.”
    The facts were: That at the time the application for tire first policy was made, the applicant'stated to the company’s,examining physician that four months previously she had undergone an operation for the removal of a fibroid tumor of the uterus; that she subsequently applied for the second policy without making any representations in the application as to the condition of her health, and that the latter policy was issued by the insurer after its permission had been obtained; that the premiums were paid the company; and that about three months after the issuance of the second policy the insured died of cancer of the womb, from which she was suffering at the time she applied for the first policy.
    Abstract of the Decision.
    1. Insurance, § 329

      —when requirement as to health of insured waived. An insurance company which issues a policy on the life of a woman and accepts the payment of premiums from her, after •she had informed the company’s examining physician that four months previously she had submitted to an operation for the-removal of fibroid tumor of the uterus, involving removal of the uterus thereby waives a condition of the policy limiting its liability to a return of the premiums paid if the insured was not in good health at the date of the policy, so as to prevent it asserting the defense to an action on the policy that the insured died of cancer of the uterus.
    2. Insurance, § 329*-—when requirement as to good health-waived. Where an insurance company issues a policy on the life of a woman and accepts the premiums therefor, after she had informed the company’s examining physician that four months previously she had submitted to an operation for the removal of fibroid tumor of the uterus, involving removal of the uterus and two months later it consented to and issued a second policy on her life without any reference in her application as to her condition of health, the insurer waived a condition of the polióy that its liability was limited- to the return of the premiums received if the insured was not in good health at the date of the policy, so as to prevent it asserting the defense to an action on the second policy that the insured died of cancer of the uterus.

      Quinn, Quinn & McGrath, for appellant.
    Sucher & Moore, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

3. Insurance, § 329*-—when extent of insured’s physical unsoundness not material. Where, at the time of issuing a policy of life insurance, an insurer has notice of the physical unsoundness of the assured, the extent thereof is not material as affecting the waiver by the insured of a condition of the policy limiting its liability to a return of the premiums received if the insured was not in good health at the date of the policy.

4. Insurance, § 329*—when condition, as to health of insured deemed waived. An insurer may by its conduct waive a condition of a policy of life insurance limiting its liability to a return of the premiums received if, at the date of the policy, the insured was not in good health.


author: Per Curiam.

text:
    Mrs. James R. Monahan, Plaintiff in Error, v. St. Paul Coal Company, Defendant in Error.
    Gen. No. 5,915.
    1. Release, § 8

      —when not impeachable in action at law fon fraud. A release of a cause of action cannot be impeached in an action at law for fraud which does not inhere in its execution, but which goes merely to the consideration, since equity only can grant relief in such a case.
    2. Release, § 8*—when impeachable in action at law. A release of liability for the death of the plaintiff’s husband can be impeached in an action at law, where she was misled by the defendant into executing it, believing that it was a contract whereby she would receive a further sum in the event that other widows were paid a greater amount for the death of their husbands in a common disaster, since the fraud inhered in the execution of the instrument.
    3. Pleading, § 225*—effect of pleading over. Where the plaintiff, on the sustaining of a demurrer to his replication, obtains leave to and files an amended replication without asking leave to plead double, the original replication is abandoned, and its sufficiency is not open to review on appeal.
    4. Pleading, § 122

      —what replication should contain. Explanations as to discrepancies between an original and an amended replication are not properly a part of the latter pleading, and no issue can he made thereon.
    5. Release, § 8*—when receipt of money not ratification of release obtained by fraud. The receipt of money under a release obtained by fraud inhering in its execution is not a ratification thereof, where the defendant retained the instrument and the plaintiff was not aware of its true nature until pleaded as a defense to an action at law.
    6. Release, § 8*—when person not estopped by receipt of money under release obtained by fraud. The receipt of money under a release which was obtained by fraud inhering in its execution does not estop the defrauded party, where the defendant retained the instrument and the plaintiff had no knowledge of its true nature until relied upon by the defendant as a défense to an action at law.
    7. Release, § 12*—when return of money not prerequisite to action. Money received by the plaintiff under a release which was obtained by fraud inhering in its execution need not be returned before bringing an action at law, where he was not aware of the true nature of the instrument until relied on by the defendant as a defense.
    8. Release, § 9*—when failure to read not negligence. That a person was negligent as a matter of law, in signing a release without procuring his eyeglasses and learning its contents, held not shown by a replication, where the true nature of the instrument was misrepresented to him.
    Error to the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 9, 1915.
    J. L. Murphy, for plaintiff in error.
    Duncan, Doyle & O’Conor, for defendant in error.

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

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

   Per Curiam.

The husband of plaintiff in error was killed in what is known as the Cherry Mine disaster, in which many men lost their lives. She brought this action of trespass on the case against the defendant in error to recover for his death, and filed a declaration setting out sufficient grounds for recovery under our Mines and Miners Act. The defendant pleaded the general issue and a plea of release, setting out in haec verba a writing under seal signed by the plaintiff, in which it is recited that in consideration of $1,620 she compromises and releases to the defendant in error all liability by reason of the death and circumstances surrounding the death of her husband. The plaintiff replied that the defendant procured the writing pleaded by fraud and deceit, averring in her amended replication that she did not have her glasses present and could not read the paper and an attorney for the defendant read it to.her, and read it to her as providing that this was a receipt for $1,800 to be then paid her on her claim for the death of her husband, and that if any other widow whose husband was killed in the same disaster was paid by the defendant upon a settlement a greater sum than $1,800, plaintiff should be paid enough more to make her compensation equal to the highest sum so paid to any other widow, and if no greater sum than $1,800 was paid as a settlement to any other of said widows, then this document would operate as a release of plaintiff’s claim, and that this instrument was intentionally misread to her in order to trick her and to cause her to affix her signature to said document, and that she relied on said attorney and did not know that it contained the supposed release, and signed it in reliance on said representations, and would not have signed it if she had known what it contained. This is followed by averments that other widows had been settled with for as high as $4,500. We interpret this language as meaning that it was read and represented to her that this instrument was at present only a receipt for $1,800, and would not operate as a release until it was ascertained that no other widow was settled with for over $1,800, or until she was paid as much as the highest sum paid in settlement to any other widow; in other words, that this was not intended to operate as a release at the time it was executed.

The court sustained a general demurrer to the replication, and judgment for the defendant followed, to review which this writ of error is prosecuted.

The release as pleaded was a bar to plaintiff’s action. 'The question is whether the facts replied remove that bar. No question of the right of recovery under the terms of the release, either as written or as intended or supposed to be written, is involved. Even if the release be reformed by an appropriate independent proceeding in equity, there can be no recovery based on the obligations there imposed in an action of tort.

The inquiry is whether there was fraud in the execution of the instrument itself. If plaintiff knew she was signing this paper and knew its contents (there being no question as to her mental capacity), she cannot be heard in a court of law to deny its effect on the ground that she did not understand it because of false representations as to its meaning, or that she was induced to sign it by false representations as to collateral matters. Her remedy, if any, in that event is in an independent action in a court of equity.

The execution of an instrument is deemed to be procured by fraud when the signature is obtained by misreading, surreptitious substituting one paper for another, or obtaining by some other trick or device an instrument which the party did not intend to give. Some fraud or imposition must be practiced upon the party to obtain his signature. To permit proof to be introduced in a court of law as to the practice of fraud in the procurement of a release, the fraud must consist in false representations as to the character of the instrument itself which was signed. The authorities are reviewed and conclusions reached as above stated in Papke v. G. H. Hammond Co., 192 Ill. 631; and the court in Hartley v. Chicago & A. R. Co., 214 Ill. 78, said: “In an action at law an instrument such as this cannot he impeached for fraud not inhering in the execution thereof hut which only goes, to the consideration. It is permissible to prove fraud touching the execution of the instrument, such as misreading it, the surreptitious substitution of one paper for another, or a trick or fraud in procuring the signature. If there is no fraud in securing the execution of the release it can only be avoided by a proceeding in equity. Accordingly, it is competent to show that the signature to a release was obtained by the false representation that it merely covered a claim for a month’s wages; (Illinois Central Railroad Co. v. Welch, 52 Ill. 183;) that an illiterate woman, unable to read or write, was induced by her physician, during her illness, in the absence of any one to whom she could look for advice, to sign a release on the representation that it was a receipt to show what money expended for her benefit had been expended for; (Eagle Packet Co. v. Defries, 94 Ill. 598;) that one suffering great physical pain and laboring under the effect of opiates was induced by fraudulent practices to sign a release under the belief that he was only signing a receipt for money; (Chicago, Rock Island and Pacific Railway Co. v. Lewis, 109 Ill. 120;) that a person unable to read or write signed a release not read to him, under the representation that the paper was for the paymaster to show where the money went; (National Syrup Co. v. Carlson, 155 Ill. 210;) that the execution of a paper was fraudulently obtained from one suffering severe pain, in ignorance of its contents and under the representation that it was necessary to have her name; (Chicago City Railway Co. v. McClain, 211 Ill. 589;) or that a release was signed without any intention to execute a release, but on account of fraudulent representations that it was merely a receipt for money paid to a physician. (Chicago City Railway Co. v. Uhter, 212 Ill. 174.) The law upon the whole subject was stated upon a full review of the authorities in Papke v. Hammond Co., 192 Ill. 631.” See also, Babcock v. Farwell, 245 Ill. 14; Turner v. Manufacturer’s & Consumer’s Coal Co., 254 Ill. 187; and Kelly v. Aurora, E. & C. R. Co., 168 Ill. App. 386.

In many of the cases it is said, in substance, that in suits at law the instrument cannot be impeached for fraud not inhering in the execution thereof but which only goes to the consideration. This is not a case where only the consideration expressed in the instrument was misread to the signer, but she pleads that she was misled to believe that she was signing a contract or agreement that she should have a further sum on a contingency, and that she did not know that she was executing a present release of her cause of action. As we interpret the amended replication, it presents an answer to the plea which can be tried in a court of law.

Appellant assigns as error the action of the court in sustaining the demurrer to her original replication. She asked and obtained leave to amend it, and after-wards asked and obtained leave to file the amended replication here discussed. She did not ask leave to reply double and therefore could only have one replication. She abandoned her original replication when she filed the amended replication, and the sufficiency of the former is not before us. About one page of the amended replication is devoted to an explanation of the discrepancies between that and the original replication. That explanation has no proper place in the replication and no issue should be permitted to be formed thereon.

It is said that the plaintiff ratified the settlement made by her by receiving the $1,620, and afterwards collecting the $180 from the defendant and retaining the whole amount. If she did this, after knowing the contents of the paper that she signed, we will assume she should be held to have ratified her agreement, notwithstanding that she may have been induced by fraud to execute it. But it is alleged in her replication that she delivered the paper to the defendant’s agent and did not know of its contents when she received the $1,620. It also appears from the replication by fair intendment that she did not know the contents of the paper until it was plead by the defendant in this suit.. If her attorney had knowledge of its contents when he collected the $180, that fact is not stated in the record and cannot be inferred from anything there stated. She is neither estopped nor required to return the money, if she received it without knowing the contents of the paper and was fraudulently induced to sign it. Indiana, D. & W. Ry. Co. v. Fowler, 201 Ill. 152.

The remaining question is whether it can be said, as matter of law, from a reading of the replication, that the plaintiff was guilty of negligence in not knowing the contents of the paper she signed. We are of the opinion that we are not warranted in saying, as matter of law, that plaintiff was so negligent in not procuring glasses and reading the paper or taking-some other means of ascertaining- its contents, as to preclude her defense set up in her replication. Taylor v. Atchison, 54 Ill. 196; Sims v. Bice, 67 Ill. 88.

The trial court erred in sustaining the demurrer to the last replication. The judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Carnes

text:
    Ida B. Seefeldt, Appellant, v. Klemens W. Wilgen, Appellee.
    Gen. No. 5,986.
    Contracts, § 349

      —when obligee may not recover on promise to indemnify surety on appeal bond. A written promise made by the officers of a corporation, to indemnify and to stand equally liable with the surety on an appeal bond in which the company was appellant,- is not a promise for the benefit of the appellee, on which he may recover when liability accrues in his favor on the bond.
    Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 15, 1915.
    Rector C. Hitt and Spencer- Ward, for appellant.
    Browne & Wiley, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Appellant, Ida B. Seefeldt, had a judgment in the Municipal Court of Chicago against Grant United Mines Company, a corporation, for $567.50 and costs of suit. The defendant corporation, to stay execution on the judgment pending trial on writ of error from the Appellate Court of the First District, filed a bond with one John Brasey.a surety, in the penal sum of $750, conditioned that, “in case a writ of error to review said judgment shall be affirmed by said Appellate Court, the said Grant United Mines Company shall perform and comply with said judgment, and pay all money thereby required to be paid, and all costs which may he awarded the said Ida B. Seefeldt in said Appellate Court.” The judgment was affirmed and liability accrued on the bond.

Brasey signed the bond at the request of appellee, Klemens W. Wilgen, president of the defendant corporation, which request was in the form of a letter signed by appellee as follows •.

“Wedbon, III., Sept. 5, 1907.
Mr. John Beasey,
Deab Sib:—Ton sign the bond for the Grant United Mines Company in the appeal case of Mrs. Seefeldt and I will stand back of you with John Spindler and be equally responsible with you and him. ’ ’

John Spindler referred to in the letter was the treasurer of the corporation. He wrote his name under the signature of Wilgen before Brasey signed the bond. Appellant brought this action of assumpsit against the signers of the letter, Wilgen and Spindler, on the theory that it amounted to a promise to Brasey for her benefit. Summons was returned “Not found” as to Spindler, and served on the appellee Wilgen, who appeared and plead the general issue. In the jury trial that followed, the court at the close of the plaintiff’s evidence directed a verdict for the defendant and entered judgment thereon, from which judgment this appeal is prosecuted.

It was held in Eddy v. Roberts, 17 Ill. 505: “Where one enters into a simple contract with another, for the benefit of a third, such third person may maintain an action for breach, and such contract is not within the statute (of Frauds)and said in Bristow v. Lane, 21 Ill. 194, on page 197: “In this country the right of a third party to bring an action on a promise made to another for his benefit, is generally asserted, and is the prevailing rule with us.” The court discussing earlier cases and speaking of the liability of the grantee in a deed of real estate in which it is recited that he, the grantee, assumes and agrees to pay a mortgage incumbrance thereon, in Webster v. Fleming, 178 Ill. 140, said: “This court has uniformly held that the beneficiary may sue at law, which repudiates the doctrine of indemnity;” and in the same case said it has not been held “that the promise of the grantee to the mortgagor is a mere indemnity of the latter against the payment of the mortgage.” While there is some conflict of authority in other jurisdictions, the law is well settled in this State as stated in the cases cited, as will be seen by reference to numerous cases cited in those opinions and later cases citing those cases. If the writing in question here is properly construed as a promise by appellee to Brasey for the benefit of appellant, she was entitled to recover; but if it should be construed as an agreement to indemnify Brasey from injury or loss in signing the bond, then it seems obvious that she could not recover. It will be noticed that the Supreme Court in expressions above quoted distinguished the obligations from contracts of indemnity. If the promise had been that appellee alone would indemnify or stand back of Brasey, if he would sign the bond, or that he and Spindler would do so, it would have been a plain ordinary contract of indemnity; and we do not see that the agreement of appellee to stand one-third of the loss, and of Spindler to stand another third, leaving Brasey to stand one-third himself, calls for a different application of the rule than in case of a contract of entire indemnity. To entitle appellant to recover,-it must appear that the contract was entered into directly and primarily for her benefit. It is not every contract made by one person with another from the performance of which a third person will derive a benefit on which such third person may maintain an action, “there must not only be an intent to secure some benefit to such third person, but the contract must have been made and entered into directly and primarily for his benefit.” Searles v. City of Flora, 225 Ill. 167.

We do not construe this contract as one for the benefit of appellant within the rule announced in the Illinois cases, permitting a third person to sue on a contract made for his benefit. The case is like that of Crandall v. Payne, 154 Ill. 627, where it was held that a stranger to a contract, who is to derive only an incidental benefit therefrom, cannot recover for a breach thereof. It is true in this case, as in that, that any benefit to accrue to appellant from the contract was merely incidental; the purpose of the contract was not to benefit her but to benefit the parties thereto. The Supreme Court of New York in Turk v. Ridge, 41 N. Y. 201, had a somewhat similar contract under consideration and reached the same conclusion. In our opinion the court did not err in rendering judgment for the defendant, and as that is the only question presented, the judgment must be affirmed.

Affirmed.


text:
    John Shultz, Appellee, v. Patrick McCarty, Appellant.
    Gen. No. 6,012.
    1. Mortgages, § 31

      —who has burden of showing that deed \s mortgage. A person claiming that an absolute conveyance of land was intended only as security for a loan has the burden of establishing his contention by clear and decisive proof.
    2. Mortgages, § 14*—when deed, held to be mortgage. In a case of real doubt as to the actual intention of the parties, a court of equity will incline to construe an absolute conveyance of land as a mortgage rather than as a sale.
    3. Mortgages, § 683*—who may redeem from deed intended as mortgage. Where land is conveyed as security for á loan, the grantor has the right to redeem therefrom.
    4. Mortgages, § 191*-—when conveyance of incumbered land closely scrutinized. Conveyances of inqumbered land from mortgagor to mortgagee will be jealously scrutinized by a court of equity to ascertain whether the transaction is fair and free from oppression, fraud or undue influence.

      5. Mobtgages, § 21

      —when absolute deed held a mortgage. Where land was conveyed as security for a loan, which was to be paid within five years, and after the expiration of that time the grantor executed a quitclaim deed of the property to his grantee, and thereafter, although remaining in possession and paying the interest and taxes regularly and making valuable improvements, the grantor from time to time accepted leases of the land from his grantee, held that the quitclaim deed was given as further security for the original loan, and that it was not intended as an absolute conveyance.
    6. Mobtgages, § 32*—when admissions of grantee competent to show deed to be mortgage. Statements made by a grantee to a third person, tending to show that an absolute conveyance of land was intended merely as a security for a loan, are admissible in an action by the grantor to redeem.
    7. Mobtgages, § 732*—when laches bars right to redeem from deed intended as mortgage. The right of a grantor to redeem from an absolute deed intended as security for a loan, held not barred by laches.
    8. Mobtgages, § 733*—when grantor estopped from redeeming from deed intended as mortgage. The fact that the grantor of land, by way of security for a loan, accepts a lease thereof from his grantee, does not bar the former’s right to redeem, where the grantee, during the period covered by the lease, continues to recognize the existence of the mortgage by accepting interest on the debt.
    9. Mobtgages, § 733*—when grantor estopped from redeeming from deed intended, as mortgage. Where the grantor in a deed, intended as security for a loan, accepts a lease from his grantee, the rule forbidding a tenant disputing his landlord’s title will not prevent the grantor from maintaining an action to redeem, where the grantee during the lifetime of the lease recognized the existence of the mortgage by accepting interest on the debt.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. Richabd S. Fabband, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 15, 1915.
    William N. Cronkrite and Robert A. Hunter, for appellant.
    Hodson & Hodson and Martin J. Dillon, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

March 24, 1885, appellee, John Shultz, procured a loan of $8,000 for five years from Patrick McCarty, the appellant, upon his promissory note bearing seven per cent, interest, secured by a mortgage on his home farm of four hundred and ten acres. Afterwards in March, 1888, he procured from appellant another loan of $4,000, and the entire sum of $12,000 was at the instance of appellant then secured by a warranty deed of the premises executed by appellee and his wife. There was an oral agreement at the time that the deed should be considered a mortgage and that appellee should be given a bond for a deed. Such a bond was executed two or three days afterwards and placed of record by appellant but not delivered to appellee, and he seems not to have known of its existence. The condition recited in the bond was that appellee should pay $12,000, with seven per cent, interest thereon, and all taxes on the premises, and the time fixed for re-conveyance was May 1, 1890, though appellee in his testimony says that the time orally agreed upon was five years, and appellant testified that he thought it was three or five years. May 13, 1890, appellee, his wife, not joining, executed a quitclaim deed of the premises to appellant, hut remained in possession, paying $840 a year, and paying taxes and insurance on the buildings, and making improvements of considerable value. He signed leases from time to time for the term of one year each, after the first four or five years. Appellee claims that the quitclaim deed was executed at the request of appellant to aid him, appellant, in trouble that he was having with the taxing authorities, and that it was expressly agreed that it should have the effect only of a security for the loan of $12,000. The premises were worth at this time from $15,000 to $20,000, and increased in value, probably because of the general rise in market value of farm lands, until they are now worth from $35,000 to $40,000.

Appellee filed a bill in this case to have the transaction declared a security for the money loaned, for an accounting and reconveyance, and to enjoin a pending ejectment suit. Appellant answered, claiming absolute title and denying any agreement to reconvey except said bond for a deed. The chancellor heard the proofs in open court and entered a decree for the complainant, and the defendant brings the case here on appeal.

There is no question but the warranty deed was intended solely and only as a mortgage. Appellee’s evidence is to that effect, and appellant, as a witness was asked if at the time of the transaction he told appellee that he would not take a mortgage on the place but would take a deed as security so that he, appellee, could not give a second mortgage on the place to someone else, and he answered, “Tes; I think I said that,” and further testified that in accordance with that statement the warranty deed was given. Appellant’s claim of unconditional title must depend on the quitclaim deed, and the inquiry is, what was intended by the parties at the time this' deed was executed (there is no intervening interest of a third party). Was it intended solely and only as a security for the $12,000 then owing, or was it intended as an unconditional-conveyance of the land? We agree with appellant that the burden of proof was on appellee to show that the transaction was only a security for money loaned, and that before a court of equity will so hold the proof must be clear and decisive; this court so held in Babcock v. Babcock, 179 Ill. App. 188. The authorities are numerous to that effect, though it is also said that in case of real doubt as to the intention of the parties, the courts will incline to construe the transaction as a mortgage rather than as a sale, and that the two rules are not inconsistent. 17 Cyc. 1018. If the transaction was intended by the parties thereto as a security for money loaned, there was a right of redemption. The Supreme Court of Colorado in the late case of Reitze v. Humphreys, 53 Colo. 177, quoted from an earlier case of the same court what is there said to be the language of Judge Story: “If a transaction resolves itself into a security, whatever may be its form and whatever name the parties may choose to give it, it is in effect a mortgage.” The rule announced in this quotation has been applied in varying language by many courts to many conditions of facts. We are referred to no case, and know of none, where a conveyance clearly intended by the parties thereto, at the time it was made, as a security has been by a court of equity held unconditional.

Appellee testified that at the time the quitclaim deed was given, appellant told him that he was having trouble and wanted him to sign a quitclaim deed and he answered, “You have got one deed, how many more do you want?” That they went up into the office of appellant’s attorney and he said appellant had been called to the courthouse by the county board, and wanted a quitclaim deed on that property; and appellant- said if he did not get the deed hé would have to foreclose, but if he did get it he would give a bond for five years longer to redeem it in, and that would protect both of them, and that it would make no difference, whenever he paid the $12,000 and interest he would reconvey. There was no consideration paid. Appellant told appellee he would have to pay taxes and keep up the expenses as he had always done. That afterwards in April, 1895, appellant said he had nothing to show for what he was to get on the land and asked appellee to sign a lease providing for an annual rental, which was done, and such leases were executed annually thereafter until 1912, with the exception of some years that were omitted. In 1912, appellant told appellee that he must pay $1,000 interest in the future, or $150 more than he had been paying, which he refused to do. He described the improvements he had made on the premises from time to time, and testified that they cost him about $8,500. There is considerable dispute about the value and cost of the improvements, but there is no question that they were of a kind and character such as a man in his circumstances is likely to make on his own land, and entirely inconsistent with the custom of tenants in caring for lands of their landlords. Neither is there any doubt that appellant paid no such attention to the premises as is usual with owners of leased land.

Appellant testified, as to the quitclaim deed occurrence, that appellee desired to sell him the place and they told the lawyer that he had sold it for $12,000. the $8,000 that he owed and $4,000 more; that nothing-particular in addition to that occurred, and he gave him the $4,000 and got the deed; that he does not recall the details of the transaction. He confuses the two deeds in his testimony and evidently has no clear recollection of the quitclaim deed transaction; but he denies explicitly any statement to appellee that he would reconvey, and also statements testified to by other parties, hereinafter mentioned, to the effect that the transaction was a mortgage. He admits that $840 a year and taxes and insurance were paid, and calls it rent, and says that he went out to the place about twice a year, except in some years he was not well, and knew of buildings that appellee was placing on the premises, and lent him small sums of money from time to time, which had been paid, and took chattel mortgages for rent that was past due sometimes, which have also been paid. A son of appellee testified that he was present several times in the last four or five years when interest was paid appellant, and that he took the money up there three or four years ago, and appellant would say each time that he was glad they brought the interest and would be glad if the debt was paid; that it would be nice if they had the farm all their own. One Weis testified that he called on appellant in 1900 or 1901 for a loan and appellant told him he did not have any money at present and mentioned the Shultz loan, and said he only wanted his own, if Shultz paid him the $12,000 with seven per cent, interest he could have a deed. One Brodrecht testified that two or three years ago appellant told him that he thought Shultz was getting along well, that he paid off the chattel mortgage and was paying his interest all right and had everything paid except what he, appellant had against the place. • Two members of the board of review testified that they questioned appellant in 1911 about the transaction with Shultz, and he said he had $12,000 on the Shultz farm, and was protected by a contract. Another son of appellee testified that in August, 1911, appellant told him that he had a deed of his father’s farm and that it belonged to him until his father paid him the $12,000 on it. It does appear that in 1897, appellee was endeavoring to get the money to pay the incumbrance, and in discussing the question of a reconveyance, appellant demanded $14,000 instead of $12,000 for a deed, which appellee refused to pay, and the matter dropped there. There is considerable testimony as to the value'of the land and improvements made from time to time, and some evidence tending to show that appellee is mistaken about unimportant events, but the foregoing is the substance of the proofs on which the decree was entered.

When the quitclaim deed was executed the relation of mortgagor and mortgagee existed,' and contracts between parties so situated are scrutinized by courts of equity with jealousy to see that the transaction is fair and unaccompanied by oppression, fraud or undue, influence. Cassem v. Heustis, 201 Ill. 208, and authorities there cited. The record in our opinion leaves no reasonable doubt that the quitclaim deed was not intended, when given, as an absolute conveyance, but was intended only as a part of the transaction which was a security for money loaned.

It is argued that the evidence of statements of appellant to third persons to the effect that the transaction was a security was improperly admitted. Such statements were competent evidence tending to show what the agreement was at the time the deed was made, under the rule that declarations of a party to a suit against his interest are admissible. It was said in Lindauer v. Cummings, 57 Ill. 195, on page 200: “It has been held, that evidence of such declarations, alone, is insufficient, proof to show an absolute deed to be a mortgage. ’ ’ And similar statements are found elsewhere in the cases and text-books discussing the weight to be given to such statements, but these expressions are not authority for the position that the statements are incompetent evidence, they imply that they are competent.

Appellant says the right to redeem and the right to foreclose are reciprocal, and if one is barred the other is barred, and calls our attention to section 11 of our Limitations Act (J. & A. ¶ 7206), providing that no action to foreclose any mortgage or deed of trust in the nature of a mortgage shall be begun after ten years from the time the right of action accrues, and to a number of cases where the right to redeem has been denied because of laches of the party asking relief, and urges that the court should have held the defendant barred because of delay in bringing his action. The right to foreclose was not barred so long as the mortgagor recognized the debt by paying interest. Stein v. Kaun, 244 Ill. 32. Notwithstanding this statute, a suit to foreclose a mortgage may be begun at any time before the debt secured thereby is barred. Stein v. Kaun, supra and Kraft v. Holzmann, 206 Ill. 548. It was held in Coates v. Woodworth, 13 Ill. 654, that no lapse of time short of that fixed by the statute of limitations could forfeit the right of redemption, and this seems to be the general law, except in cases where there has been great negligence, unexplained acquiescence in an adverse claim, or intervening rights of third parties, and it is said that even then the court will listen to any plausible excuse for the delay. 27 Cyc. 1820.

Appellant relies much on the fact that appellee accepted leases of the premises, as evidence that he understood the transaction to be an unconditional conveyance, and also on the question of laches, claiming that because of these leases as well as because of appellant’s demand in 1897, before mentioned, of $14,000 for a deed, that appellee had known for so long a time that appellant claimed the unconditional title, that he was guilty of such delay in bringing his action as to bar his right to relief. These facts tend to support appellant’s contention that the quitclaim deed was intended as an unconditional conveyance, but they are overborne by other evidence in the case that it was not so intended. When this is determined, the fact of the leasing does not convert the mortgage into an unconditional conveyance. 27 Cyc. 998. The devices of lawyers to circumvent the law providing a debtor his equity of redemption are numerous, but we are cited to no authority and do not conceive any principle that would effect that purpose by requiring the debtor to sign a lease from the mortgagee of the mortgaged premises. If this matter of leasing be treated as the actual possession of the premises by appellant, the right to redeem would not be barred as long as appellant recognized the existence of the mortgage as a continued security, by accepting interest on the debt secured thereby. 27 Cyc. 1821. The debtor is not estopped by recitals in leases and other instruments executed after the deed is made; equity will relieve him from any estoppel created by such instruments as well as from the estoppel by the deed itself. Sut phen v. Cushman, 35 Ill. 186. These authorities also answer appellant’s contention that appellee should not have been permitted to maintain his suit, because a tenant cannot be permitted to deny his landlord’s title.

There is some objection to the rulings of the court on the evidence, but none was excluded that we deem material and competent. The hearing was before the court, and he could hardly err in admitting incompetent evidence. Appellant argues earnestly that the conclusion reached by the chancellor involves the finding of fraud on the part of appellant and his attorney acting in the transaction. It is not necessary to presume that any actual fraud was attempted or contemplated when the deeds were given. It was an attempt to secure a loan of money by a deed instead of a mortgage, very likely because it was supposed the debt would not be taxable, or that the taxing authorities would consider it not taxable. Such attempts are not unheard of and do not necessarily impute moral turpitude. • Appellee is evidently an easy going man that has signed almost any paper that appellant or his attorney asked him to, and has paid for about twenty-five years a high rate of interest on $12,000 to appellant, making the transaction profitable to appellant if he now receives his principal. The decree in our judgment not only does justice to both parties, but is also abundantly sustained by the evidence, and therefore it is affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Mary Hegeler Carus, Appellant, v. F. W. Matthiessen, Appellee.
    Gen. No. 6,061.
    1. Corporations, § 237

      —when want of notice vitiates election of director. A person acquires no right as a director of a corporation under an election held in the absence of the notice required by law, to stockholders of the time and place of holding the election, unless all of the stockholders are present and acted in or assented to the election being held; their mere physical presence is not sufficient.
    2. Corporations, § 181*—when stockholders’ knowledge of election of directors waives want of notice. The fact that all of the stockholders have knowledge of the time and place when the annual election of directors of a corporation is to be held is not a waiver of the notice required by the law under which the company is organized, unless all of the stockholders attended and assented to the holding of the election.
    3. Corporations, § 181*—when election of directors without notice is valid. Where no notice of the time and place of holding the annual election of directors of a corporation was given, although required by the law under which it was organized, a director cannot be legally elected, notwithstanding all of the stockholders were present, where a portion of them protested against the election being held and then withdrew.
    4. Corporations, § 181*—when presence of stockholders is loaiver of notice of election of directors. The presence of a stockholder at an annual election of the directors of a corporation is not a waiver of the failure to give notice of the time and place of holding the election, which was required by the law under which the company was organized, where he took no part in the proceedings except to protest against the election being held.
    5. Corporations, § 181*—when presence of stockholder at election of directors estoppel to question validity. The presence of a stockholder at the annual election of the directors of a corporation does not estop him from questioning the validity of the election for want of notice of the time and place it was to tie held, where he took no part in the proceedings other than to protest against the election being held.
    6. Corporations, § 72*—when custom to elect directors without

      notice established. A usage and custom of the stockholders of a corporation to assemble annually at a certain time and place for the election of directors without the notice required by law, held not established by the evidence.
    7. Estoppel, § 51

      —when stockholder estopped from, questioning validity of election of director. The fact that a stockholder did not base his objection to the holding of an annual election of the directors of a corporation, on the ground that the notice of the time and place of holding the election required by law had not been given, but merely protested against the holding of the election, does not estop him from thereafter questioning the validity of the election.
    Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed.
    Opinion filed April 15, 1915.
    George Wiley and Montgomery, Hart, Smith & Steere, for appellant; Charles S. Cutting, N. H. Pritchard and J. D. Dickerson, of counsel.
    M. F. Gallagher, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This is the first considered of four cases involving the interests of the Hegeler and Matthiessen families in two corporations, being Gen. Nos. 6061, 6062, 6063, 6064. The cases have been argued with reference, one to the other, and our opinions are so written and may be so read for a better understanding of the situation.

On January 30, 1914, the State’s Attorney of La Salle county, on relation of Mary Hegeler Carus, obtained leave to file and filed in the Circuit Court of that county an information in the nature of quo warranto against F. W. Matthiessen, the appellee, to contest his right to the office of director of the Matthiessen & Hegeler Zinc Company, an Illinois corporation, with its principal office in La Salle, Illinois. Appellee pleaded title to the office under an election of the stockholders of the corporation at a meeting held December 18, 1913. It was stipulated that any evidence might be introduced on the trial that would have been admissible under proper pleadings; but counsel agree here that the question presented by the record is, whether the meeting of the stockholders of December 18, 1913, was a valid, legal meeting. Appellant claims that the action of the stockholders at that meeting was of no effect because notice of the meeting, required by law, was not given. Appellee claims that there was sufficient notice of the meeting, and if not, that all stockholders were present at the time and place, and therefore it is immaterial whether the required notice was given or not. The case was tried by the court without a jury, resulting in a judgment for the respondent, from which this appeal is prosecuted.

The question is to be decided from a consideration of what was said and done at the office of the company on December 18, 1913, and there is little conflict in the evidence -about that. It is a question of what was fairly understood, or ought to 'have been understood, by the parties there present in the light of the history of the corporation and its methods of electing its officers, and other existing conditions with which all present were familiar, and which must be here mentioned for a better understanding and interpretation of what there occurred.

The corporation was organized in 1871 under a General Act of the Legislature of 1857, with a capital stock of $426,000, divided into 426 shares of the par value of $1,000 each. The act required that the corporation should be managed by a board of not less thfl/n three nor more than seven directors, who shall be stockholders therein, and who shall be annually elected by the stockholders to serve for one year, and until their successors shall have been elected. The charter provides four as the number of directors. The statute further provides:

“Section 6. An annual election of directors shall be held at such time and place as the board may designate, and a written or printed notice of such election shall be given to each stockholder personally or sent to him through the postoffice at least fifteen days before the day of election, and the election shall be made by such of the stockholders as shall attend for that purpose, either in person or by proxy. * * *. Each stockholder shall be entitled to one vote for each share of stock held by him, and those persons receiving the greatest number of votes shall be directors. If from any cause the annual election of directors be not made on the day fixed for that purpose, it may be held on any day thereafter designated by the board or by any three stockholders, of the time and place of which the like notice shall be given to the stockholders as in the case of a regular election.”

Three sections of the by-laws of the company were as follows:

“Section 1. Meeting of Stockholders. The annual meeting of the stockholders of said company for the election of a board of four directors and the transaction of such other business as may be necessary for the welfare of the company, shall be held at the office of the company in the city of La Salle, La Salle county, Illinois, on the 18th day of December of each year, excepting when that day shall fall on a Sunday, and in such ease on the succeeding Monday.
“Section 2. Special Meetings of Stockholders. Special meetings of the stockholders may be called by three stockholders, as provided for in Section 6 of the Additional Act for the Incorporation of Manufacturing Companies, of the Laws of 1857, under which this company is organized, or by the president, as provided for in Article Y, Section 1 of these by-laws.
“Section 3. Election of Directors. The annual election of directors of said company shall be held at the office of said company in La Salle, Illinois, on the 18th day of December in each year, except in years when said day shall fall on Sunday and then on the succeeding Monday. That in case of the failure for any reason to hold such election on either of the days above named, then such election shall be held at an adjourned meeting of the stockholders or a meeting called for such purpose, as soon thereafter as practicable.”

It will be observed that the by-laws fix the place and the day but not the hour of the stockholders’ meeting for the election of directors. On the date of the meeting in question, December 18, 1913, the entire board of four directors was to be elected. The corporation was virtually an equal partnership between F. W. Matthiessen and Edward C. Hegeler from its organization to the death of Mr. Hegeler in 1910, each party controlling one-half the stock, which he kept in his own name on the books of the company, except a few shares transferred to members of his family or some one in his confidence and under his control. It had for many years been the general practice of the stockholders to meet at the office of the company at about 10 a. m. on December 18th and discuss the affairs of the corporation, and when all were present and ready to act to call the meeting to order and proceed to make a formal recórd of the election of directors. The eight annual meetings last prior to the one in question are shown by the records thereof to have been organized, two at 10 a. m., four at 10:30 a. m., and the others between the hours of 10 and 10:30 a. m. While the meetings had generally been held at the office of the company, they had sometimes been held at the home of Mr. Matthiessen and sometimes at the home of Mr. Hegeler, and sometimes had been entirely omitted. There had been no need of notice to the stockholders of such meetings, and none had been given. Ho meeting had been held against the protest of any stockholder so far as appears, and the stockholders were so few in number that it was entirely practicable to arrange the time and place of meeting to suit the conveniencé of all. The custom to so do is quite as apparent from the record as is the custom to hold the meeting at about 10 a. m. of December 18th.

At the time in question, December 18, 1913, the registry of the corporation showed the Hegeler stock owned by Mary Hegeler Oarus, trustee, 211 shares; Mary Hegeler Carus, 1 share; C. B. Lihme, 1 share; and the Matthiessen stock by F. W. Matthiessen, 178 shares; George P. Blow, 3 shares; Adele M. Blow, 10 shares; F. W. Matthiessen, Jr., 10 shares; Eda Matthiessen, 10 shares; Dr. Philip S. Chancellor, 2 shares, —being an exactly even number of shares in the two families, as there had always been since the formation of the corporation. Each family was then and always had been represented by an equal number of directors and managing officers. The statute under which the corporation was formed requires that a director be a stockholder, therefore there were only two persons representing the Hegeler interest qualified to act as directors, while there were six persons representing the Matthiessen interest eligible. The one share of stock held by Lihme was apparently so held for the purpose of qualifying him to act as one of the two directors to which the Hegeler interest was entitled to preserve the balance of power. He was a son-in-law of Edward C. Hegeler, deceased. It had been from the beginning the intent and purpose of the owners of the corporation that it should be and remain during the life of the corporation strictly a family affair, not only in the equal ownership of stock, but also in the management of the business. Lihme had been acting as director two or three years prior to this meeting of December 18, 1913. On the morning of the meeting, or the evening before, it is not clear which, he was served with a summons in a quo warranto proceeding, brought on the relation of F. W. Matthiessen and others representing that interest, to contest his right to hold the office of director, the charge in the petition ■for leave to file the information being that he was not a stockholder in the corporation and therefore not qualified to act as director.

There had been no notice given of a stockholders’ meeting to be held on December 18, 1913, but at 10 a. m., Mary Hegeler Carus, who was a director in the company, and C. B. Lihme went to the office of the corporation and found there F. W. Matthiessen, his son, F. W. Matthiessen, Jr., his son-in-law, George P. Blow, and M. F. Gallagher, a lawyer from Chicago, who appeared as attorney in the quo warranto proceeding against Lihme, and who held proxies from the other three Matthiessen stockholders. Mrs. Carus sat down and said nothing. Lihme had sent for an attorney who was delayed and had not reached them. Lihme was not a lawyer and evidently did not understand the situation further than to know that his ownership of the one share of stock was in question, and to believe if he did not own it he could not vote it, which would leave the Matthiessen interest in the majority, and if he was not a stockholder he could not act as director, which would necessarily place three of the four directors in the Matthiessen family. He knew there was to be a conflict between the two interests that had so many years dwelt in harmony, and if a meeting was held at that time and place, he and Mrs. Carus without the opportunity to consult counsel were not fitted to cope with the Matthiessen interest represented by counsel. The witnesses all agree that he was much excited and at once appealed to all present, and particularly to F. W. Matthiessen, to postpone the meeting and do nothing "at that time. He used various expressions among them asking that'the meeting be adjourned until after the day of the return of the summons in the quo warranto proceedings. He was promptly informed that the meeting could not adjourn without organizing, and while he was still protesting that nothing should be done, a motion was put that F. W. Matthiessen act as chairman, and another motion that Mrs. Carus act as secretary of the meeting, both of which motions were declared carried. Neither Mrs. Carus nor Lihme voted, and they say Mrs. Carus was not declared elected secretary while they were in the room. Lihme was all the time disregarding the fact that they were organizing a meeting and so strenuously insisting that nothing be done that he was declared out of order, and left the room, stating that there would be no quorum in the absence of himself and Mrs. Carus and therefore no business could be transacted. • Mrs. Carus left the room with him. The meeting proceeded to ballot for directors, and by the unanimous vote of the stockholders remaining in the room declared three of the Matthiessen family and Mrs. Carus elected directors for the ensuing year, and it is this action of that meeting upon which appellee relies to sustain his title to the office.

Mr. Lihme was mistaken in supposing that one-half of the stock of the corporation represented by the Matthiessen interest did not constitute a quorum, and his statement in that regard is only important as showing that at last, as well as at first, and at all times he was vigorously' protesting that there should be no meeting of the stockholders for the transaction of any business at that time and place. Mrs. Carus said and did nothing whatever indicating her desires in the matter, except to leave the room on Lihme’s statement that in that way they could prevent any action at that time.

In the absence of the notice required by statute, or something equivalent to or dispensing with that notice, the respondent obtained no right of title to .the office by the action of the stockholders voting at that meeting. This court said, speaking of the question of notice and of a statute the same as or similar to the one in question, here, in Charter Gas Engine Co. v. Charter, 47 Ill. App. 36, on page 53: “It (the meeting) could not be legally held until after notice of the time and place had been given in an authentic .and legal mode, unless all stockholders were present and consenting in person or by proxy.” And further said on page 54: “A bylaw like the one in question is still insufficient (as notice), because no place or hour is1 named,” and cited with approval San Buenaventura Commercial Min. & Mfg. Co. v. Vassault, 50 Cal. 534, holding that it is not sufficient as notice that a by-law names a day upon which an annual meeting is to be held. We see no reason to doubt the law as stated by this court in that case. It is said in 10 Cyc. 326:

“Where such a notice is required, by the terms of the governing statute * * * unless it is explicitly given in respect of day, hour, and place, the meeting cannot be legally held, unless the shareholders are all present and consenting, whether in person or by proxy; and the fact that the by-laws fix the day upon which such a meeting shall be held is not a sufficient notice of the time and place * * *. If a single member, having the right to be present and vote, is not notified in the prescribed manner, and is absent or refuses to consent to the proceedings held at the meeting, its proceedings will be illegal and void, unless the charter or governing statute otherwise provides.”

The following authorities also support the above propositions of law: Purdy’s Beach on Corporations, sec. 665, page 978; Cook on Corporations, (6th Ed.) sec. 594, page 1618; 26 Am. and Eng. Encyc. of Law, page 992; Thompson v. Williams, 76 Cal. 153; State v. Pettineli 10 Nev. 141.

While it is true that an election had at a meeting irregularly assembled may be valid if all stockholders attend and act or assent (10 Cyc. 323), we are of the opinion that the mere physical presence of all stockholders at the time and place is not sufficient to validate the meeting.

The notice seems to be a substantial requirement of law, not to be waived by the fact that all stockholders knew in some other way than the one prescribed of the time and place of the meeting. The place is no more important than the time. If all the stockholders are present and consent, they may hold a meeting at some other place than that required hy the governing by-law, as was done by this corporation in holding meetings at the homes of Mr. Hegeler and Mr. Matthiessen, before mentioned; but it could hardly be argued that the other stockholders could have assembled at either of these homes and held a meeting there against the protest of either of these men, and that the meeting would be valid merely because he was physically present.

The question is whether there was such a presence and assent of the stockholders representing the half interest that we have called the Hegeler interest, as to bring the case within the rule that proceedings at a meeting irregularly assembled are valid if all stockholders attend and act or consent. Mrs. Cams did nothing and said nothing; she represented one-half the stock in the corporation excepting the one share that stood on the books in the name of Mr. Lihme, but was not owned or legally held by him if the Matthiessen claim in the suit then pending should be sustained by the courts. We do not see any ground for holding that she assented to or acted at the meeting. If she be said to acquiesce by her silence and by leaving the room, to what Mr. Lihme said, that was all to the end that no meeting should be held at that time and place. It matters little what language he used,—that is, his language in the state of excitement he was in would not naturally be understood in any technical sense by the parties there present,—they knew that so far from consenting to a meeting, he was frantically, and they say violently, objecting to one at that time and place. He had not consulted counsel and did not know whether he was a stockholder or not. He no doubt knew the facts concerning his holding the one share of stock, and knew that the Matthiessen interest represented by the lawyer there present claimed that under those facts he was not a stockholder. He had the best of reasons for not assenting to a meeting and the election of directors until the question could be determined, or at least until he could be advised in the matter, and he left no doubt as to his attitude on the question. If he owned the one share of stock he should not be held to be present at the meeting either acting or assenting; if he did not own it we do not see how his presence and whatever he said or did could be construed as the presence and assent of the person, whoever it might be, that did own it.

There are cases in which language, read detached from the statement of facts under-consideration, might support the contention that the mere physical presence of all stockholders at the time and place in question would validate a meeting irregularly assembled and otherwise void for want of notice; but they are cases in which there was an attendance of all stockholders at a meeting, not merely at a place where a meeting was held. The rule announced by the text-writers and courts is usually, in substance, as stated in J. W. Butler Paper Co. v. Cleveland, 220 Ill. 128, where the court says on page 133: “It has been uniformly held that it is immaterial whether or not such notice has been given in the manner pointed out by the statute, if the persons entitled to such notice actually attend the meeting and participate in the business there transacted.” No case is cited and we know of none where the presence of a stockholder at the place of a meeting, taking no part in the meeting, protesting that no business should be transacted, is held to be a waiver by him of notice required by law, or to estop him from questioning the validity of acts there performed.

Mrs. Carus before learning of the attack on the right of Mr. Lihme to serve as director probably expected there would be a meeting of the stockholders at the office of the company on that day soon after 10 a. m., and probably intended to agree to and act in that meeting; but there was nothing in the history of the corporation that would even suggest to her that she should or could force a meeting and election of directors at that time and place if for some reason, like the sudden sickness or death of one of the Matthiessen stockholders, or for any other reason, people representing that stock were unable or unwilling to attend and vote it at the meeting. Appellee argues that the usage and custom of the stockholders to assemble at that time without notice should be held binding on them, dispensing with notice. Sometimes usages and customs become binding. What has been done for so long a time that it has become a custom may indicate what should and must be done. As we have before seen, there was no long-established, uniform, uninterrupted custom to hold the stockholders’ meeting at this time and place, but there was a long-established uninterrupted custom not to hold the stockholders’ meeting without the presence and assent of all stockholders.

It is argued that Mr. Lihme and Mrs. Carus did not object that there was no notice, and therefore that the relator, Mrs, Carus, is estopped to raise that question. We do not see the force of that suggestion. The meeting required the assent of every stockholder. Any stockholder had the right to stay away for a good or bad reason, or no reason at all, and thus prevent a valid meeting. We are of the opinion that the conduct of Mrs. Carus was equivalent to staying away from the meeting. She was a director in the corporation and could if she chose stay in its office through an entire meeting without attending that meeting. Neither she nor Mr. Lihme recognized a meeting by making any motion or voting on any motion. Mr. Lihme’s request that the meeting adjourn was not addressed to the chairman of- the meeting, as chairman, but was an appeal to Mr. Matthiessen, who controlled one-half the stock in the corporation. The facts do not bring the case within the rule that a shareholder cannot attend and act in part of the proceedings of a stockholders’ meeting and afterwards object, or even at the meeting object, that other business should not be transacted because the meeting is irregularly assembled. Counsel say if the stockholders present had acceded to Mr. Lihme’s request and all voted to adjourn the meeting, there can be no doubt that their action would have been legal; this is probably true, if Lihme owned the share of stock that stood in his name, and had the right to vote it, because all stockholders would have been present and acting at the meeting; but no motion to adjourn was made in or acted on, by the meeting, and even had Mr. Lihme made such á motion we do not see how that could estop the relator, Mrs. Carus, representing one-half the stock, less one share, from showing that she did not consent to, act in, or even attend a meeting held at that time and place.

For the reasons above stated we are of- the opinion that the judgment should be reversed, and as there is no claim of right or authority of appellee to hold the office of director, other than the action of the meeting in question, final judgment of ouster is directed to be entered by the clerk of this court.

Reversed.