author: Mr. Justice Gridley

text:
    Louis L. Lettiere, Defendant in Error, v. N. L. Blackman and Leonard J. Williams. (N. L. Blackman, Plaintiff in Error.)
    Gen. No. 18,598.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 15, 1914.
    Statement of the Case.
    Action by Louis L. Lettiere against N. L. Blackman and Leonard J. Williams in the Municipal Court of Chicago to recover the sum of ninety-five dollars from defendants for commissions on the sale of certain real estate, which sum, as alleged in the statement of claim, defendants agreed to apply on the purchase price of four lots in Clarkdale, which lots plaintiff agreed to buy, but which defendants on request refused to transfer to plaintiff, after tender to defendants of the balance of the purchase price. Blackman alone was served with summons and he entered his appearance. The summons was returned “not found” as to Williams. The nature of Blackman’s defense was, as disclosed from his affidavit of merits, that he was not jointly liable with Williams to plaintiff in any sum whatsoever, and that plaintiff was not entitled to recover any commissions from either of the defendants. The cause was tried before the court without a jury, resulting in a finding of the issues against Blackman and the assessment of plaintiff’s damages at the sum of ninety-five dollars. A motion for a new trial was overruled, and judgment was rendered against Black-man for ninety-five dollars and costs, which judgment he seeks by this writ of error to reverse.
    Abstract of the Decision.
    1. Pabtnebship, § 252

      —when retiring member chargeable as a partner. In an action against two defendants jointly to recover commissions on the sale of real estate, evidence, held, sufficient to charge one of the defendants as a partner though the partnership was by agreement dissolved and notice of such dissolution' published before the transactions with plaintiff, it appearing that the business was continued by the remaining partner in the firm name and that a contract with plaintiff was signed hy both defendants.

      John A. Swanson, for plaintiff in error; Aaron Heims, of counsel.
    No appearance for defendant in error.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

2. Brokers, § 71 —when defense that plaintiff is not entitled to commissions not available. In an action for commissions on the sale of real estate which plaintiff claimed defendants agreed to apply on the purchase price of lots which plaintiff agreed to purchase, and which defendant’s refused to transfer to plaintiff after a tender of the balance of the purchase price, held that a defense that plaintiff was not entitled to commissions for the reason that he was the purchaser himself could not be urged where the refusal of the tender was not based on that ground.


source: Caselaw Access Project

license: Public Domain

text:
    Albert Rothbaum et al., copartners as Rothbaum & Astrahan, Appellees, v. Samuel Solomon et al., Appellants.
    Gen No. 19,329.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 15, 1914.
    Statement of the Case.
    Action by Albert Rothbaum and Handel Astrahan, copartners trading as Rothbaum & Astrahan, against Samuel Solomon and Sarah Solomon, his wife, and Horris Solomon and Sarah Solomon, his wife, to recover commissions alleged to be due the plaintiffs for negotiating an exchange of real estate for defendants. The case was tried by a jury. The defendants filed a joint plea of the general issue, but at the time of the trial none of them were present in court and no evidence was introduced in their behalf. The court instructed the jury to find the issues for the plaintiffs and to assess plaintiffs’ damages at six hundred dollars. Subsequently, during the argument on a motion by defendants for a new trial; the plaintiffs, at the suggestion of the court, entered a remittitur of four hundred dollars, and the court thereupon refused to grant a new trial and entered judgment against the defendants for two hundred dollars. To reverse the judgment, defendants appeal.
    Abstract of the Decision.
    1. Continuance, § 10

      —when denial of motion not an abuse of discretion. Refusal of court to grant a motion made by defendants’ attorney for a continuance when the case was called for trial on the ground that he had learned only the evening before that the case would be called for trial and that he had been unable to communicate with his clients as they were out of the city, held not an abuse of the court’s discretion where no affidavits were then presented making any showing as to diligence or as to a meritorious defense.
    2. Bbokebs, § 93*—when direction of verdict for commissions not improper. In an action to recover commissions for negotiating an exchange of real estate for defendants, the giving of an instruction directing a verdict for plaintiffs, held not improper, where no evidence was offered by defendants, and by the terms of the contract, which it was admitted by defendants’ affidavit of defense was executed by them, a certain sum was to become due plaintiffs though the deal was not consummated, provided such failure.of consummation was due to the fault of defendant, and the uncontradicted evidence disclosed the failure of consummation to be their fault.
    3. Bbokebs, § 80*—when proof of tender of deed for exchange of real estate unnecessary to recover commissions. In an action to recover commissions for negotiating an exchange of real estate, where defendants agreed to pay commissions if the deal was not consummated because of their fault, held it was not incumbent on plaintiffs to prove that a deed had been tendered to defendants, where the evidence disclosed that the defendants unconditionally-refused to consummate the deal.

      Harry C. Diamond and James F. Hutchison, for appellants.
    Perlman & Rosenberg, for appellees; Samuel Plame, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.

4. Appeal and ebrob, § 1520*-—when direction of verdict for an excessive amount harmless. Error of court in directing a verdict for plaintiff for an amount not warranted by the evidence cannot be complained of where the amount was corrected by a remittitur and judgment was entered for the proper amount.


text:
    Victor Koehler, Appellee, v. La Salle Turn Verein, Appellant.
    Gen. No. 19,348.
    Negligence, § 24

      —liability of party letting hall for injuries resulting from defective condition of premises. Where a club rented the use. of a hall for its members for one evening, and during the evening a member was injured by reason of a defective trapdoor in the floor of the premises, held in an action by the injured member against the party letting the hall to recover damages that whether or not the relation of landlord and tenant existed between the defendant and the club, the case was properly submitted to the jury, and that a verdict and judgment for the plaintiff were not contrary to the law or the evidence.
    Appeal from the Circuit Court of Cook county; the Hon. Dean Franklin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 15, 1914.
    Statement by the Court. This is an action for damages for personal injuries sustained by Victor Koehler, plaintiff, on April 22,1911, by reason of a defective trapdoor, on the premises of LaSalle Turn Verein, a corporation, at No. 2050 Larrabee street in the city of Chicago. The action was originally brought against Lillian Bauman, as owner, and said LaSalle Turn Verein, as lessee and occupier, of said premises, but was subsequently dismissed as to said Lillian Bauman. The case has been tried twice before a jury. The first trial resulted in a verdict in favor of plaintiff and against said LaSalle Turn Verein, defendant, for eight hundred dollars, but a new trial was granted. On the second trial the jury awarded plaintiff the sum of $550 as damages, and the court entered judgment on the verdict against said defendant, from which judgment this appeal was perfected.
    Plaintiff’s declaration consisted of one count and averred, in substance, that the defendant had rented from said Lillian Bauman and, as her tenant, was occupying on April 22, 1911, a certain building, known as No. 2050 Larrabee street, Chicago; that said defendant was accustomed to let or rent said building as a dance hall, bar, club room and drill hall to various persons at different times, from which it derived large gains and profits; that as such occupant the defendant was bound to exercise reasonable care to keep said premises in a reasonably safe condition for use by the persons to whom rented, as a place for dancing, drilling and other amusements, and for the use of said bar for the sale of liquid refreshments; that on and long prior to April 22, 19.11, there was placed and maintained a certain timber floor and a certain vault cover or trapdoor, within said building and back of said bar in said' building, to be used by persons walking upon said floor and as a means of access to the basement beneath; that said defendant well knew, or by the exercise of reasonable care could have known, that said floor and vault cover or trapdoor was in poor repair and condition, and was dangerous to persons who might lawfully walk along and upon the same; that on said April 22, 1911, the said defendant let and rented said building and hall, with the use and privileges thereof, and the use of said bar for the purpose of selling liquid refreshments, to a certain organization or society known as the Wandrie Bowling Club, for a certain sum of money; that plaintiff was a member of said society; that on the date aforesaid the said society gave a public dance or party and used said hall and bar for the purposes aforesaid; that it was the duty of plaintiff, as such member and as chairman of the dance committee, to walk and move about said hall, and to get back of said bar, and to collect moneys as the proceeds from the sale of said liquid refreshments sold over said bar; that while plaintiff was in the discharge of his duty of so collecting said moneys, and while walking back of said bar and over and upon said floor and trapdoor, and while exercising due care for his own safety, the said trapdoor, by reason of the unsafe, rotten and dangerous condition of said floor and trapdoor, of which condition plaintiff had no notice, then and there broke, caved in and gave way, causing a part of plaintiff’s body and limbs to be imprisoned in said trapdoor, and, by reason of the said negligence of the defendant, the plaintiff’s right knee was wrenched and dislocated and he was severely and permanently injured, etc.
    The material facts, as disclosed from the evidence on the second trial, are substantially as follows: Plaintiff was chairman of the dancing committee of the Wandrie Bowling Club. On January 29, 1911, he and two other members of the club visited the building of the defendant for the purpose of obtaining the use of portions of the same for a dancing party to be given for the members of the club and invited guests on the night of April 22, 1911. They interviewed the janitor of the building and, after they had made a cursory examination of the hall and barroom it was verbally agreed that the club could have the use on said night of the- hall, barroom and basement underneath the barroom for the sum of forty-five dollars, and to bind the bargain plaintiff gave said janitor the sum of ten dollars, taking a receipt for said sum, it being understood that the balance should be paid on the night of the party. Early in the evening of April 22nd, plaintiff and several -other members of the committee arrived at the hall for the purpose of attending to certain preliminary matters, and were admitted by the then janitor of the building, a man named Kratschmer, who showed plaintiff the dancing hall, the barroom and the entrance to the basement from the barroom, which was by means of a trapdoor in the floor, back of the bar and directly over a flight of stairs leading to the basement. Some of the liquid refreshments were in the basement and the janitor opened said trapdoor, and plaintiff and a bartender, hired by the Wandrie Club, followed him into the basement, and were shown “where the beer was.” It was agreed between plaintiff and the janitor that the club might use as much beer as was wanted, and that the club should pay the janitor for all liquors consumed during the evening. In going into and returning from the basement plaintiff paid-no particular attention to the trapdoor or to the conditions back of the bar. This bar extended east and west nearly across the barroom, about seven feet from the south wall. Back of the bar was a cashier’s desk and the trapdoor, which door was about three feet wide and five feet long, and was fastened to the floor by means of two hinges near the south wall. When the door was open it leaned against said south wall. When it was closed it formed part of the floor back of the bar. After the dancing party had been in progress for several hours, and while plaintiff was back of said bar, attending to his duties as chairman of said committee and giving certain instructions to the person in charge of said cashier’s desk, and while said trapdoor was closed, plaintiff started to go to the box office and, in stepping upon some part of said closed trapdoor, the same gave way and his right leg went down and his right knee “was caught between the second and third boards.” Plaintiff testified that the hinges of the trapdoor “came off” and a “piece of board broke off and went down to the basement”; that a bartender “helped him out”; that he did not think he was badly hurt at the time; that he continued in the performance of his duties; that at the conclusion of the dancing party he and the secretary of the Wandrie Club, before leaving the building, paid said janitor the balance due for the use of said hall, and for the liquors consumed, and “for everything,” amounting in all to the sum of from eighty dollars to one hundred dollars; that the following morning his knee was “all swollen up” and he called a physician to attend him; that he remained in bed for six weeks under said physician’s advice; that he was on crutches for three or four weeks and did not return to his work as foreman for an engraving company until about ten weeks after the accident, and that said physician attended him about sixteen times, rendering him a bill of forty-eight dollars. Said physician testified that, in his opinion, plaintiff had sustained a permanent injury in his right knee. Louis Miller, employed as one of two bartenders by said Wandrie Club on the night of the party, testified that he saw the accident; that he was tending bar at the time; that after he arrived at the hall early in the evening he opened the trapdoor in order to go down in to the basement and while doing so noticed that one hinge on the trapdoor was loose; that he called the attention of the other bartender to that fact but that he did not say anything about it to the plaintiff or to the janitor. Charles Leidiger testified that he witnessed the accident; that he was standing outside of the bar at the time, opposite the trapdoor; that when plaintiff moved away from the cashier’s desk and stepped upon the trapdoor he “heard a crack;” that plaintiff’s right leg went down at one corner and the trapdoor came up at another comer, and that when he examined the trapdoor immediately after the accident there was a hole in the door on the second or third board. H. W. Kratschmer testified that he was employed by defendant as janitor during the months of April and May, 1911; that it was his duty to see that the premises were in good order in every respect; that he had full charge of the premises and that it was a part of his duties to rent the premises on behalf of the defendant to such parties as might desire to use the same; that sometimes the hall was rented once a week and sometimes four or five times a week for dancing parties, and occasionally for political meetings and weddings; that when used for dancing parties it was a part of his duties to see that the dancing was not conducted in an improper manner; that he admitted plaintiff to the premises on the night of April 22nd and that early in the evening he checked up the beer in the basement with.plaintiff so that there would be no mistake; that when then going into the basement he made no particular examination of the trapdoor; that he had occasion to walk across the trapdoor every day, and that the trapdoor was used and walked upon every time there was a dancing party; —that he came into the barroom at the time of the accident “in time enough to see him (plaintiff) pull his leg out of the hole;” that he first saw the trapdoor about seven years ago; that after the accident he noticed that one of the hinges was loose, that the first board of the door was “sprung loose,” that probably water got in between the cleat and the board, rusted the nails and the board came loose, and that “the nails were rusted and you could bend them right in two.”
    A. A. Worsley, for appellant; Glenn P. Sayers, of counsel.
    Charles I. Barker and Bolton & Moriarty, for appellee; Maurice J. Moriarty, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.

It is contended by counsel for the defendant that, under the facts of this case, if anyone is liable for. the injuries sustained by plaintiff it is the Wandrie Bowling Club and not the defendant. It is argued, in substance, that the defendant made a verbal lease of the premises to the Wandrie Club for the night of April 22, 1911; that on that night the relation of landlord and tenant existed between defendant and the Club; that at the time of making the lease nothing was said as to the condition of the premises and the Club took the premises as it found them; that the evidence does not disclose that at the time of making the lease or at any time prior to the accident the defendant knew, or by the exercise of ordinary care might have known, that the trapdoor was in a defective condition; and that, hence, the defendant is not liable. It is contended by counsel for plaintiff, in substance, that this case “is not one of landlord and tenant and notice,” but is such as should, under the facts, be decided upon a different theory, viz., that the members of the Wandrie Club, including plaintiff, had been invited, in consideration of the payment of an agreed sum, to come upon the premises for the purpose of holding a dancing party, at which liquid refreshments were to be sold to said members and guests. And counsel argue that said members, including plaintiff, had a right to assume that the premises were suitable and reasonably safe for that purpose; that the evidence discloses that the defendant did not use reasonable care to keep the premises in a reasonably safe condition, and that, therefore, the defendant is liable for the injury to plaintiff, lawfully upon the premises.

In Pauckner v. Wakem, 231 Ill. 276, it was decided that the owner of premises, who expressly or impliedly invites another person to enter the premises for the transaction of business in which both are interested, to such person the duty to exercise reasonable care for his safety while on that portion of the premises required for the purpose of his visit, and that such duty extends to a servant of such person. (See also Franey v. Union Stock Yard & Transit Co., 235 Ill. 522; Hart v. Washington Park Club, 157 Ill. 9, 13; Purtell v. Philadelphia & R. Coal & Iron Co., 256 Ill. 110, 114.) In Stickel v. Riverview Park Co., 250 Ill. 452, 454, it was decided that in amusement places, where space is granted for conducting attractions for the amusement of the public and for which an admission fee is charged by the concessioner and divided with the owner, the owner assumes an obligation that the devices and attractions operated by the concessioners are reasonably safe for the purposes for which the public is invited to use them. (See also Babicz v. Riverview Park Co., 256 Ill. 24; Dietze v. Riverview Park Co., 181 Ill. App. 357.) In Turgeon v. Connecticut Co., 84 Conn. 538, it was decided that where a street railway company, owning and maintaining an amusement park for its patrons and the public in" order to hold and increase its traffic, invited people to come upon the premises for business or pleasure, it was bound to exercise reasonable care to have and keep the premises, and the structures and appliances thereon, reasonably safe for such visitors, and that it made.no difference, as to the company’s liability, whether an admission fee to the park was charged or not, or whether the structures and appliances were leased to others, who operated and controlled them subject to the company’s general supervision. In Camp v. Wood, 76 N. Y. 92, the defendant kept an inn upon the premises and in the third story of the inn was a hall, which he was accustomed to let for public purposes. On the evening when plaintiff was injured the defendant had let the hall for a dance, to which all persons who applied were admitted on payment of an entrance fee. The hall was reached by two flights of stairs, one directly above the other. The entrance from the street was by a door opening into the hallway opposite the foot of the lower flight of stairs. There was a door in the second story which occupied the same relative position to the upper stairs, and this door opened upon a piazza or wooden awning, six feet wide and twelve feet above the sidewalk. Plaintiff paid the entrance fee and was admitted to the dance. When he left to go home, after passing down the upper stairs, he went out of the door opening upon the piazza, supposing that it was the street door. The night was dark and the door was open. There was no railing or guard on the piazza and plaintiff walked oh of the piazza, fell to the street and was injured. The trial resulted in a verdict and judgment for plaintiff. In affirming the judgment, it was held that the defendant, by letting the hall for public purposes, held out to the public that the hall was safe, and he was bound to exercise care to provide safe arrangements for the entrance and departure of people, who came there upon his invitation, and that the question whether there was a breach of this duty was, upon the evidence, properly submitted to the jury. In Oxford v. Leathe, 165 Mass. 254, plaintiff was injured by the falling of an elevated platform on premises owned by the defendant. Some days before the accident the defendant had made a written agreement that he had “leased the Woburn Bink and seats now therein for four nights,” August 2nd to 5th inclusive, to one Gleason, all money in the box office to be under the defendant’s control until twenty dollars was paid each night. Gleason’s understood purpose was to give exhibitions of horse training. On the evening of August 9th, Gleason was holding over the foregoing terms by an oral understanding, and an entertainment was to take place, and plaintiff, with others, was standing on said platform in front of the entrance, waiting for the doors to open, when the platform fell. There was evidence that the support of the platform was defective. The jury returned a verdict for the plaintiff upon which judgment was entered. On appeal the judgment was affirmed, the court holding that if the jury found that the use actually made of the platform was something which the defendant was bound to have contemplated, he was liable for any neglect of proper precautions to make it safe, whether Gleason also was to blame or not, just as in the case of premises let with a nuisance upon them, and that the short and interrupted character of the occupation allowed to Gleason made it obvious that the safety of the building must be left mainly to the defendant. And under the decisions of our Supreme Court it is the law of this State that, while as a general rule the occupant and not the owner is responsible for injuries arising from a failure to keep the premises in a proper state of repair, still, where the premises are let with a nuisance upon them by means of which the injury complained of is received, in such case the owner is liable. (Tomle v. Hampton, 129 Ill. 379, 383; West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210, 218; Gridley v. City of Bloomington, 68 Ill. 47, 51.)

Under the facts of the present case, as outlined in the foregoing statement, and under the law, we are of the opinion that, whether or not the relation of landlord and tenant existed between defendant and the Wandrie Club on the night of April 22, 1911, the case was properly submitted to the jury, and that the verdict and judgment are not contrary to the law or the evidence. , '

Counsel for defendant urge that the court erred in giving instruction No. 9, offered by plaintiff. While the language used in the first sentence of this instruction is not accurate, we do not think that, in view of all the other given instructions, the instruction was misleading to the jury, or that the giving of it constitutes such error as requires a reversal of the judgment. Nor do we think that the court erred in refusing to give certain instructions offered by the defendant, as argued by counsel.

Finding no reversible error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    David N. Hanson, Appellee, v. Emma M. Smith, Executrix, Appellant.
    Gen. No. 19,356.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Bankruptcy, § 74

      —when defense of discharge waived. Where a maker of notes secured by a trust deed obtained a discharge in bankruptcy -without the holder of the notes having, notice of the bankruptcy proceedings, held that a deficiency decree entered against him in a suit to foreclose the trust deed was valid and properly allowed against his estate, it appearing that he was duly served with summons in the foreclosure suit but did not appear and plead his discharge and no appeal was taken from the deficiency decree.

      Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 15, 1914.
    Statement of the Case.
    Proceeding for the allowance of a claim filed "by David N. Hanson against the estate of Charles M. Smith, deceased, in the Probate Court, based upon a deficiency decree entered against the deceased in his lifetime in a foreclosure proceeding and after he had obtained a discharge in bankruptcy. The Probate Court allowed the claim against the estate for the sum of $2,454.30, as of the seventh class, to be paid in- the course of administration. An appeal was taken to the Circuit Court by Emma M. Smith, executrix of the estate of the deceased, and the cause submitted to the court for trial without a jury. The Circuit Court found for the claimant, Hanson, sustaining the order of the Probate Court and assessed his damages at the sum of $2,487.58. To reverse a judgment entered on the finding, the executrix appeals.
    Frederick Z. Marx, for appellant,
    George R. Jenkins, for appellee.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

2. Bankruptcy, § 74*—when defense of discharge must he made to deficiency decree in foreclosure suit. Where a maker of notes secured by a trust deed subsequently obtains a discharge in bankruptcy, a deficiency decree may be entered against him in a suit to foreclose the trust where he fails to plead his discharge as a defense in the first instance, and it is n.ot necessary to give him notice and an opportunity to plead such defense after the foreclosure sale and before the deficiency decree is entered, where the bill prayed for a deficiency decree in case the proceeds of the sale were insufficient.


author: Mr. Justice Scanlan

text:
    Alice M. Babcock et al., Complainants, v. Stella P. Hulette, Executrix, Defendants. Helen M. Chapman (Cross-Complainant), Appellee, v. Alice M. Babcock et al. (Cross-Defendants), Appellants.
    Gen. No. 18,867.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Rehearing denied and additional opinion filed June 15, 1914.
    Statement of the Case.
    Bill filed by Alice M. Babcock, Carrie A. Bitter-and Bessie B. Balston against Stella P. Hulette, executrix of the last will and testament of Arthur B. Pease, deceased. Ellen E. Follett, Lydia Keene Chapman and Mrs. Helen M. Chapman asking for the appointment of a successor in trust and for an accounting and turning over by the executrix to the new trustee of the assets of the trust of which the deceased was a trustee in his lifetime. Helen M. Chapman filed a cross-bill asserting ownership of a note, a trust deed securing it and an abstract to the premises mentioned in the trust deed, which were in the possession of the executrix, and praying that she be decreed to the owner thereof. Issue was joined on the cross-bill. The chancellor found and decreed that the note, trust deed and abstract belonged to the cross-complainant. To reverse the decree, the cross-defendants appeal.
    Abstract of the Decision.
    1. Trusts, § 270

      —when decree as to ownership of property sustained by the evidence. On bill filed by beneficiaries of a trust against the executrix of the trustee and others praying for the appointment of a successor in trust and for an accounting and turning over of the assets of the trust to the new trustee by the executrix, where one of the defendants filed a cross-bill praying that she be decreed to be the owner of a certain note, a trust deed securing it and an abstract of the property in the trust deed, which were in the possession of the executrix, held that a finding and decree that the cross-complainant was owner of the property was sustained by the evidence.
    2. Appeal and error, § 1813*—sufficiency of Appellate Court opinions. The Appellate Court in writing its opinion in a case in which the sole point for decision is whether the evidence warrants the finding of the chancellor is not required under section 17 of Appellate Court Act, J. & A. If 2977, in giving reasons for its decision to state the evidence in the case, analyze the same and give its conclusions as to the credibility of the witnesses and the weight that should be attached to the various pieces of the evidence.
    Chytraus, Healy & Frost and Edwin White Moore, for appellants.
    John A. McKeown, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    John A. Nipper, Defendant in Error, v. The Wabash Railroad Company, Plaintiff in Error.
    Gen. No. 19,162.
    (Not to he reported in full.
    Abstract of tlie Decision.
    1. Railroads, § 733

      —when recovery for injuries resulting from, obstruction at street crossing sustained by the evidence. In an action against a railroad company for personal injuries received by plaintiff at a street crossing alleged to have been caused by the negligence of defendant in obstructing the crossing with a certain bucket which plaintiff, while in the act of crossing, ran into and fell so that his foot was run over by a passing train, held that a verdict for plaintiff was sustained by the evidence, it appearing that the trial court approved the verdict by overruling a motion for a new trial and that there was a weakness in defendant’s proof in that it supports two inconsistent theories as to the way in which the accident happened.

      Error to the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 15, 1914.
    Statement of the Case.
    Action by John A. Nipper against The Wabash Bail-road Company to recover damages for personal injuries alleged to have been received by plaintiff at a street crossing in the city of Danville, Illinois, through the negligence of defendant in obstructing such crossing by placing thereon a certain bucket so that plaintiff, while in the act of crossing such street in the nighttime, ran into said bucket and by reason thereof he fell and his left foot was run over by the wheels of a passing train. The case was tried before a jury and a verdict was returned finding the defendant guilty and assessing plaintiff’s damages in the sum of three thousand dollars. To reverse the judgment, defendant brings error.
    Zane, Morse, McKinney & McIlvaine, for plaintiff in error; J. L. Minnis, of counsel.
    Morse Ives, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion, of the court.

2. Railroads, § 769*—when instruction not erroneous as assuming facts. The giving of an instruction for plaintiff which simply informed the jury that the plaintiff charges in his declaration that the railroad company operated its trains across a certain public street, held not error for the reason that the jury would infer from the language of the instruction that the court assumed that the crossing was a public crossing.

3. Instructions, §" 90*—when instruction on right of jury to disregard testimony of a witness erroneous. A requested instruction stating that “the jury have no right to disregard the testimony of a witness where such testimony is not contradicted, and such witness has not been impeached,” held bad for the reason that the testimony referred to is not confined to material matters and for the reason that the testimony might be plainly false and impossible of direct contradiction or impeachment.


author: Mb. Justice Scanlan

text:
    The W. G. Wood Company v. Benjamin F. Nysewander et al. Elmer C. Bye et al., v. Same. Oscar H. Haugan et al., v. Same. On Appeal of Haagan Otterson et al., Appellants, v. State Bank of Chicago, Appellee.
    Gen. No. 19,305.
    1. Mechanics’ liens, § 151

      —word “completion” in section 7 of Lien Law construed. The word “completion” in section 7 of the Mechanics’ Lien Act, J. & A. If 7145, requiring a contractor as against incumbrancers to file his claim or bring suit “within four months after completion,” must be construed to mean completion of work or completion of the delivery of material for which a contractor seeks to enforce his lien, and not to mean completion of the contract so that the limitation of said section would not apply where the contract was partially performed.
    2. Mechanics’ liens, § 151

      —when lien for partial performance not preserved against lien of incumbrancer. A contractor’s lien on the improvements for partial performance of the contract given by section 4 of the Mechanics’ Lien Act, J. & A. f 7142, becomes subsequent to the lien of an incumbrancer on the real estate, where he fails to file his claim for lien or to bring suit to enforce the same within four months from the time he abandoned the contract
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 15, 1914.
    Rehearing denied June 29, 1914.
    Statement by the Court. B. F. Nysewander, the owner of certain lots, entered into a contract with the appellant Otterson, who was a general contractor, for the erection of four buildings upon the said lots. Otterson did the carpenter work, and he let out to various subcontractors other parts of the work, such as masonry, cement, plumbing, plastering, etc. Work was begun under the contract in October, 1909. On October 21, 1910, because of the failure of Nysewander to pay certain moneys due under the contract for work already done, Otterson discontinued the work. For a period of ten days thereafter Nysewander continued in default, and on November 1, 1910, the appellant abandoned the work on the buildings. No work was done on them thereafter, and because of the failure of Nysewander to make the payments due to Otter-son under the contract, Otterson failed to make payments to the subcontractors in accordance with his contracts with them. He filed no claim for lien with the clerk in the Circuit Court. It is admitted that all the various subcontractors commenced suits to enforce their liens within apt time. The appellee, the State Bank of Chicago, an incumbrancer, contended in the lower court that the lien of the appellant was subordinate to the lien of the appellee because the appellant did not commence suit to enforce his lien as to an incumbrancer within four months after the completion of the work done by him under his contract, and that therefore the lien of the appellant as to the improvements on the premises was a subsequent lien to that of the appellee. The appellee filed a cross-bill to enforce its lien. On the trial of the case, the appellant introduced evidence to the effect that from the time he abandoned work on the premises until some time in May, 1911, he held a number of interviews with Nysewander, in which the matter of completing the contract was discussed; that Nysewander at these interviews always expressed himself as being hopeful that he would be able to raise sufficient money to pay for the completion of the buildings. Otterson testified that he expected to finish the buildings under his contract until May, 1911, when Nysewander told him bankruptcy proceedings had been commenced against him, Nysewander, and that he would not .be able to complete the buildings and that Otterson should protect bimsp.lf by filing a lien claim. Otterson then “abandoned the contract.” The decree finds that Otterson had a mechanic’s lien on the improvements on the real estate, but that it was a subsequent lien to that of the appellee, an incumbrancer. The only appeal taken from the decree is that of the appellant Otterson. It appears from the record that the claim of the appellant Otterson has been assigned to the appellant Thornton-Claney Lumber Company.
    A. A. Rolf, for appellants.
    M. B. Waltz, for appellee.

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

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

   Mb. Justice Scanlan

delivered the opinion of the court.

The decree in this case finds that Haagan Otterson had a mechanic’s lien on the improvements on the real estate involved herein, but that the lien was a subsequent one to that of the appellee, the State Bank of Chicago, an incumbrancer, and the only question presented by this appeal is, did the chancellor err in decreeing that the said lien of the said Otterson was a subsequent lien on the said improvements to that of the appellee 1 The appellant contends that the chancellor should have found that the lien of Otterson was a prior one on said improvements to that of the appellee.

Section 7, ch. 82, of the Bevised Statutes of Illinois (Hurd’s) page 1479 (J. & A. f[ 7145), so far as it is material to the present inquiry, reads as follows:

“No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within four months after completion, or if extra or additional work is done or material is delivered therefor within four months after the completion of such extra or additional work or the final delivery of such extra or additional material, he shall either bring suit to enforce his lien therefor or shall file with the clerk of the Circuit. Court in the county in which the building, erection or other improvement to be charged with the lien is situated, a claim for lien, verified by the affidavit of himself, or his agent or employe, which shall consist of a brief statement of the contract, the balance due after allowing all credits and a sufficiently correct description of the lot, lots or tracts of land to identify the same. Such claim for lien may be filed at any time after the contract is made, and as to the owner may be filed at any time after the contract is mad<e and within two years after the completion of said contract, or the completion of any extra work or the furnishing of any extra material thereunder, and as to such owner may be amended at any time before the final decree.”

The decision of this case requires us to interpret the meaning of the italicized word “completion” in the above section. Appellant contends that the work done by the appellant was regular work (as distinguished from extra or additional work); that the first clause in the above section is the only part of the section that is applicable to appellant’s lien, and that the said clause is without force and effect, for the reason that there is no definite time fixed nor the happening of any certain event stated when the limitation should begin to run; that it is impossible to determine the meaning of the italicized word “completion”; that it might mean “completion of contract, completion of work, completion of building, completion of the last delivery of material, or any other number of events that might happen,” and that the courts have no power to interpolate words to supply the defect in the act; and appellant argues, as section 7 is without force and effect as to the lien of the appellant and as there is no other limitation section in the act, that applies to said lien, the chancellor erred in not finding that the lien of the appellant was a prior one to that of the appellee. Appellant further argues that (if this court should hold that it is possible to ascertain the meaning of the italicized word “completion” from a reading of the act) the only reasonable meaning that can be given to the said word is, completion of the contract.

In determining, if possible, the meaning of the italicized word “completion” in section 7, it is our duty to follow certain well known rules laid down by the courts. In the late case of Krome v. Halbert, 263 Ill. 172, it is said: “It is an elementary rule of construction that all parts of a statute must be considered together and not each by itself. * * # In the construction of a statute the courts are not confined to a literal meaning of the words, but the intention may be collected from the necessity or objects of the act and its words may be enlarged or restricted according to its intent. A thing which is within the intention is regarded within the statute though not within the letter, and a thing within the letter is not within the statute unless within the intention. When the intention can he collected from the statute, words may be modified, altered or supplied so as to obviate any repugnancy or inconsistency with such intention. The several provisions of a statute should be construed together in the light of the purpose and objects of the act, so as to give effect to the main intent, even though in so doing particular provisions are not construed according to their literal reading.” After a careful consideration of section 7 and the entire act, in the light of the above rule, we are satisfied that the meaning of the word “completion” is not so indefinite and uncertain that it cannot be ascertained. It seems reasonably plain to us that the word in question means completion of work or completion of the delivery of material for which a contractor (that is a contractor under the act) seeks to enforce his lien as against any other creditor, etc., under section 7. While it is essential to a right of lien of a contractor that some work be actually done or some material be actually furnished by him under his contract, it is not essential to his right of lien that the contract be fully performed on his part. Under section 4 of the act, (J. & A. jf 7142), a contractor is allowed a lien for a partial performance of the contract when there has been a breach of the contract by the owner of the land. The plain purpose of section 7 is to give notice to creditors, etc., of all existing liens on improvements on real estate. The meaning that we have given to the word in question carries out the intent and object of the section, and at the same time it does not conflict with the purpose and intent of any other part of the act. To give to the word the meaning contended for by the appellant, that is, that the said word means completion of the contract, would, in our judgment, tend to destroy the very purpose of the section. Under such an interpretation, creditors, incumbrancers or purchasers of existing liens on improvements might have practically no protection against lien claimants. In our opinion, the reasoning of the court in Schmidt v. Anderson, 253 Ill. 29, supports our conclusion as to the meaning of the word in question.

It is admitted that Otterson, on November 1, 1910, abandoned work upon the premises, and that no work was thereafter done by him on the buildings. To the bill filed by the complainant and to the cross-bill filed by Bye et al., Otterson answered on June 17, 1911, that he discontinued work upon the premises in question on October 21, 1910, because Nysewander had neglected and failed to make payments due him under the contract, and that this default continuing for ten days thereafter, he abandoned work upon the premises on November 1,1910. Otterson asked that this answer be considered as an intervening petition, and he prayed that the court might decree that he be given a lien upon the premises for the sum of eight thousand dollars. If we are correct in our conclusion as to the meaning of the word “completion” in section 7, it is apparent that the appellant, by the said answer, did not protect his lien as against creditors, incumbrancers or purchasers, in accordance with the requirements of said section, as he predicated his right to a lien upon section 4, and he did not file the said answer (the first effort he made to comply with the requirements of section 7) until more than four months after the said abandonment.

Even if we were to give to the word “completion” the meaning contended for by the appellant (that is, that the word means completion of the contract), this would avail the appellant nothing. On October 14, 1911, the cross-bill of Haugan et al. was filed in the case. On November 20, 1911, Otterson, by order of court, filed an answer to the same. In this answer he set up that on November 1,1910, he temporarily stopped work upon the buildings at the request of Nysewander; that he repeatedly offered to complete his contract ‘ but was requested to wait; that in May, 1911, said Nysewander told this defendant that he was about to file a petition in bankruptcy, and that he would not be able to carry out his contract with this defendant, and this defendant thereupon in said May, 1911, abandoned said contract.” Otters on asked that this answer be considered as an intervening petition, and that he be given a lien on the premises for the sum of eight thousand dollars. The appellant relies upon this answer in support of his lien in case we should hold that the word “completion” means completion of the contract. Therefore, if you give to the word “completion” the meaning contended for, the appellant has not protected his lien against an incumbrancer, in accordance with the provisions of section 7, for in this last answer he stated that he abandoned his contract in May, 1911, and the answer was not filed until November 20, 1911, or about six months after the so-called “abandonment of the contract” by Otterson.

We hold that the appellant, as against the appellee, an incumbrancer, did not protect his lien under the requirements of section 7, and that the finding of the chancellor that the lien of the appellant was a subsequent one to that of the appellee was a proper one. The decree of the Superior Court of Cook County is therefore affirmed.

Affirmed.


text:
      David B. Lyman et al., Appellees, v. Harry H. Zearing et al., on appeal of Charles Dickinson, Appellant.
    Gen No. 19,326.
    Mortgages, § 432-when statute of limitations tolled by payment of interest by heirs of mortgagor. Where lands were mortgaged hy an ancestor and after his death interest was paid on the mortgage debt by Ms heirs, in a suit to foreclose the mortgage, where the owner of the note seeks only a decree in rem, the heirs or their grantees are precluded from asserting as a defense that the payment of interest did not toll the statute of limitations as to the interest of the heirs in the land.
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 15, 1914.
    Statement by the Court. On August 26, 1895, William M. Zearing made and delivered Ms promissory note of even date for $15,000, due five years thereafter, payable to the order of himself and by him indorsed, bearing six and one-half per cent, interest until maturity, payable semiannually, and seven per cent, thereafter. The instalments of interest until maturity were further evidenced by ten interest notes, each for the sum of $487.50. To secure the payment of the said notes Zearing executed and delivered to Huntington W. Jackson, as trustee, a trust deed bearing even date with said note, wherein and whereby he conveyed and warranted to said Jackson certain real estate therein described and wherein David B. Lyman, appellee, was made successor in trust. At the time of the execution of the notes and trust deed, the said Zearing, a widower, was the owner in fee simple of the real estate described in the trust deed. On August 10,1899, Zearing died intestate, leaving as his only heirs at law four brothers and four sisters, all adults. Zearing at the time of his death was the owner of the equity of redemption in the real estate described in the trust deed, and this eqmty descended to and became vested in his said brothers and sisters in equal shares as tenants in common, each becoming seized of an undivided one-eighth thereof. On March 1st or 2nd, 1902, the last of the interest notes was paid by certain of the heirs of Zearing, who were then the owners. of the equity of redemption to the whole of said real estate. All these heirs, either personally, or by agent, or by legal representative, participated in said payment of interest in proportion to the respective interest of each in the real estate. This payment was the last one of any kind that was made on said note. In January, 1901, Jackson died and Lyman, the successor in trust, became trustee. Between March 4, 1909 and January 2, 1912, Eugene H. Garnett, through conveyances obtained from the heirs of Zearing, acquired the ownership to the equity of redemption to the whole of said real estate. On January 15, 1912, Garnett and wife conveyed and quitclaimed all their right, title and interest in and to the real estate to Charles Dickinson, appellant, who then became the owner of the equity of redemption to the whole of said real estate. The note became due August 26, 1900, and Lyman and Francis B. Daniels, appellees, as trustees of the Pullman Land Association, the legal holder of said note, and Lyman as successor in trust, filed a bill January 13, 1912, in the Superior Court of Cook county to foreclose the said trust deed. Garnett and Dickinson filed a joint answer to said bill, in which they interposed, as a defense to the proceedings to foreclose, a plea of the Ten-Tear Statute of Limitations. The master found that the appellees had a valid and subsisting lien on said real estate for the unpaid principal and interest of said note, together with taxes, special assessments, etc., by the appellees, amounting in all to $30,000.85, and that the appellees were entitled to a foreclosure and sale of the premises. The chancellor approved these findings and entered a decree in rem in accordance therewith, and Charles Dickinson, appellant, has prosecuted this appeal from said decree. The death of David B. Lyman, trustee and successor in trust, has been suggested to this court, and on motion his heirs were sub^ stituted.

      James S. Murray, for appellant.
    John M. O’Connor, for appellees.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

The master found that all the heirs, either personally, or by agent, or by legal representative, participated in the payment of interest on the note of the ancestor in March, 1902, in proportion to the respective interest of each in the real estate. The decree sustains this finding of the master. The appellant contends that the evidence does not sustain this finding in the decree. After a careful examination of the evidence bearing upon the subject, we are satisfied that there is no merit in this contention.

The appellant contends that as the heirs were not legally obligated to pay the principal or the interest .of the note of the ancestor, the payment of the interest on the note by them in March, 1902, was the act of mere volunteers, and that such payment did not stop the running of the statute of limitations, nor did it preclude the appellant from interposing the plea of the statute in the present case.

The appellee contends that the said payment of interest was not the act of mere volunteers; that the heirs of the mortgagor had certain fixed rights in reference to said land and to said note and mortgage; and that the payment of the interest by them tolled the running of the statute of limitations in the present proceedings ; and that the said payment precludes the appellant from successfully invoking the statute of limitations in the present proceedings.

It is conceded that neither the heirs nor the appellant are personally liable for the note in question. In fact, the decree in the present case is in rem and not in personam.

The note became due August 26, 1900. The last interest on the note was paid by the heirs in March, 1902. The bill in the present case was filed January 13,1912. Was the appellant, who, at the time of the foreclosure, was the owner of the equity of redemption to the whole of the real estate involved in the proceedings, precluded from interposing the statute of limitations in the case, by the conduct of the heirs in paying the interest on the note in March, 1902? We have been referred not only to many cases in this State, but to numerous English and American decisions bearing upon the question now before us for decision. After a careful study of the authorities, we have reached the conclusion that it is possible to decide the question involved by a reference to certain decisions of our own State.

In the case of Aetna Life Ins. Co. v. McNeely, 166 Ill. 540, the insurance company, in May, 1895,-filed a cross-bill to foreclose a mortgage. The facts in this case are as follows: Henry Fanning, on January 1, 1872, borrowed $1,000 from the insurance company, for which he gave his note secured by a trust deed signed by himself and wife. The note, as extended, became due January 21, 1883. Fanning died intestate November 25, 1881, leaving a widow and certain children. The widow lived on the property as a homestead until her death, February 17, 1892. After the death of Fanning, the widow paid the interest- on January 1,1883, and on November 20,1882 she paid $300 on the principal. On this last date, she procured an extension of the remaining $700 from January 1,1883 to January 1,1888, and she paid the interest annually on the same until January 1, 1887. No steps were taken by the insurance company to enforce the collection of the remaining $700 due as against the land embraced in the trust deed or as against the heirs of Fanning until the filing of the cross-bill. To the cross-bill the children of Henry Fanning pleaded the statute of limitations to the note. The Court held that while the payments made by the widow operated to arrest the running of the statute of-limitations as to any proceeding which might be instituted under the mortgage as against her interest in the premises, said payments would not toll the running of 'the statute as against a proceeding which might be instituted against the heirs for the purpose of reaching their interest in the premises. The Court adds, however: “We are inclined to the opinion that if they (the children and heirs of Fanning) had made a payment on the mortgage indebtedness, or promised payment to the mortgagee, within ten years before the filing of the cross-bill, such payment or promise would have arrested the running of the statute of limitations.” While this quoted language may be considered as obiter, it is nevertheless illuminating and instructive, and it is in accord in principle with the ruling of the court that the payment of the interest by the widow tolled the running of the statute as to her interest in the real estate.

In the case of Pinkney v. Weaver, 216 Ill. 185, one Verifier and wife, on November 24, 1884, conveyed to Ada Boggy certain land for life with reversion over to the heirs of her body surviving to their majority, and in the event of their death prior thereto, to the grantors and their heirs. The conveyance was made subject to a trust deed executed by the grantors to secure the payment of their note maturing April 1, 1889, for $1,200; the interest upon which was thereafter, in 1890 and 1891, paid by the grantee, who liad then procured a conveyance to her from the heirs of the said grantors of their contingent remainder. More than ten years after the maturity of the note, in September, 1899, the holder thereof filed a bill to foreclose the trust deed. It was held in this case that the payment of interest by the grantee, Ada Boggy, tolled the running of the statute of limitations as against both her life estate and the reversionary estate, and that the deed made by the master in the foreclosure proceedings conveyed the contingent interest of the two minor children of Ada Boggy, who were bom after she paid the annual interest on the note for the years 1890 and 1891. In speaking of the effect of the payment of the interest by Ada, the Court said: “When she made each of these payments of annual interest she was possessed of the life estate and of the reversionary interest in the land. The latter estáte was subject to be defeated on the happening of a contingency which might never occur. If such contingency did not happen, the full and complete title would rest in her. She had full right to protect her estate, and all possible interests, from foreclosure and sale under the trust deed by paying the annual interest as it fell due on the note secured by the trust deed. Payments made under such state of case would operate to arrest the running of the statute of limitations as against both the life estate and the reversionary estate. The foreclosure proceedings were regular, and the deed made by the master conveyed the contingent interest of the minor children of Ada to the appellee.”

In the case of Macfarland v. Utz, 175 Ill. App. 525, one McCandless made a note for $4,500, dated April 18, 1893, payable in five years, and as security for the same gave a trust deed signed by himself and wife, conveying certain property described therein. On April 26,1896, McCandless and wife conveyed the said property to John N. Crouse, subject to the said trust deed. After the conveyance to Crouse, McCandless made no payments of principal or' interest on the said note, but the interest on the note up to January 2,1905, was paid by Crouse. The defendants in this case, McCandless and wife, set up the ten years’ statute of limitations and they insisted that the payments of interest by Crouse did not toll the running of the statute. The theory of the defendants was that no foreclosure could be had under the trust deed apart from the existence of a personal liability, upon the note, against the maker or against one who assumed its payment, and the defendants argued that, as they, the makers of the note, were not personally liable upon the note at the time of the commencement of the foreclosure proceedings, no foreclosure could be predicated upon the note. In passing upon the contention of the defendants, the Court said: “By accepting a conveyance of the property subject to the trust deed Crouse did not assume the payment of the note secured by said trust deed, nor did the extension agreements entered into between Crouse and Nony Williams, the then holder of said note, on April 18, 1898, and April 18, 1900, whereby Crouse agreed to pay the interest on said note, or the act of Crouse in thereafter paying such interest, create a personal liability upon the part of Crouse to pay the principal of said note. Ray v. Lobdell, 213 Ill. 389; Scholten v. Barber, 217 Ill. 148. The payments of interest upon the note from 1897 to 1905 inclusive by Crouse as the owner of the equity of redemption in the mortgaged property was made both for the benefit of himself and for the benefit of plaintiffs in error, his grantors, and such payment of interest served to toll the statute of limitations and to keep alive the debt for the payment of which the mortgaged property was primarily liable. The decree of foreclosure here involved is in rem, not in personam. * * * By the terms of the trust deed the land was primarily liable for the payment of the debt, and Crouse, as the grantee of plaintiffs in error, having acquired the title to said land subject to said trust .deed, was burdened with the obligation to pay the debt or suffer the loss of the land by foreclosure and sale. Apart from the payment of interest the extension agreements entered into between Crouse and the holder of the note are without special significance. The payment of interest upon the note is the vital thing. If such interest had been paid by McCandless, the statute of limitations could not have been interposed by his grantee, Crouse, to defeat a foreclosure of the trust deed (Emory v. Keighan, 88 Ill. 482), and we perceive no reason why the payment of interest by Crouse should not preclude plaintiffs in error from successfully invoking the statute of limitations in bar of the action.” 'The Supreme Court denied a certiorari in this case.

As affecting the question of the running of the statute of limitations, we are unable to see any difference in principle between a payment of interest by the heirs of a mortgagor and a payment of interest by the grantees of a mortgagor who have not assumed the payment of the mortgage note.

We conclude from the foregoing cases that where an heir is the owner of the equity of redemption to a certain interest in land mortgaged by the ancestor, and the heir pays interest on the mortgage note, he thereby admits that the land, so far as his interest in the same is concerned, is burdened at the time of said payment by the mortgage debt; and in a suit to foreclose the mortgage, where the owner of the note seeks only a decree in rem, the heir, or his grantee, is precluded from asserting, as a defense, that the said payment of interest did not toll the statute of limitations, as to the interest of the said heir in the land.

We cannot agree with the appellant that the heirs in the payment of the interest were mere volunteers who waived no rights by this act. The land of the heirs was burdened with the debt of the ancestor, and if the same was not paid the loss of the land by foreclosure and sale would be the consequence. The land was primarily liable for the payment of the debt of the ancestor, and the heirs had the full right to protect their estate in the land from foreclosure and sale by paying the principal or the interest of the note. In case of foreclosure and sale, the heirs were the owners of the equity of redemption. These fixed rights of the heirs were binding on the owner of the note, but the heirs might exercise them, or not, as they saw fit. It would be grossly inequitable to allow the heirs to exercise important rights, in respect to the note and the mortgage, that tended to protect their interest in the property, and that might tend to the injury of the holder of the note, without imposing some conditions on the heirs in return therefor. When the heirs chose to exercise the right of paying the interest on the note of the ancestor, they waived the right to interpose the defense to a possible future foreclosure proceeding, that the payment of the interest by them did not toll the running of the statute of limitations as to their interest in the land.

The rule we have followed in this case is one that prevails in many of the sister States. A number of respectable authorities hold that where there are several persons interested in the equity of redemption, a payment by one of them keeps alive the right of entry, not only against him, but against all the other owners of the equity. We cite some of the authorities that support this doctrine: Jones on Mortgages (6th Ed.) sec. 1198; Hollister v. York, 59 Vt. 1; Lawton v. Adams, 13 Ohio Cir. Ct. R. 233. While this last doctrine does not appear to prevail in this State, still the authorities that support it clearly sustain us in the conclusion that we have reached.

We find no error in this record, and the decree of the Superior Court of Cook county will be affirmed.

Affirmed.


author: Mr. Presiding Justice Fitch

text:
    Emma Dickerhoof and Henry E. Dickerhoof, Appellants, v. Edward Wood, Individually and as Executor, et al., Appellees.
    Gen. No. 19,408.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Transferred to Supreme Court.
    Opinion filed June 24, 1914.

      Abstract of the Decision.
    Appeal and ebbor, § 195

      —when freehold involved in will contest. A freehold, held to be directly involved in a proceeding to set aside a will on the ground of unsoundness of mind and undue influence, where by the terms of the will the sum of three hundred dollars is bequeathed to the daughter and two children of the deceased, to be equally divided between them, and the rest of the property, both real and personal, is devised to a nephew of the deceased third wife of the testator, it appearing that the whole estate of the deceased consisted of a house and lot worth about two thousand five hundred dollars, upon which there was an incumbrance of one thousand dollars. Gottmanshausen v. Wolfing, 224 Ill. 270, followed.
    Statement of the Case.
    Bill filed in the Circuit Court by Emma Dickerhoof and Henry E. Dickerhoof against Edward Wood, individually and as executor of the last will and testament of John Bazeley, deceased, Myrtle Bazeley Wraith, Robert Wraith and Blanche Bazeley to set aside the will of John Bazeley, deceased, which was admitted to probate in the Probate Court. From a decree upholding the will, complainants appeal.
    George J. Gilbert, for appellants.
    Bernstein, Grossman & Bernstein, for appellees.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


author: Mr. Presiding Justice Baume

text:
    Elizabeth A. Booth, Appellant, v. The Supreme Lodge, Knights of Pythias, Appellee.
    Gen. No. 18,737.
    Insurance, § 763

      —when limitation of liability in benefit certificate not controlling. A provision in a benefit certificate limiting the liability of the society to an amount based upon the member’s expectancy of life in case of death.by suicide, unless the certificate has been in full force for thirty-six months preceding his death, construed as not controlling in a case though the member died before the thirty-six months expired, where such member was insured under another benefit certificate which was in force for three years prior to his death and such provision in the certificate conflicted with a by-law, and it appeared that the by-laws authorized the board of control to prescribe the form of the certificate, but expressly denied it the power to change any law of the society.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and judgment here.
    Opinion filed June 24, 1914.
    George Mackay, for appellant.
    Edmund S. Cummings, for appellee.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit instituted in the Municipal Court by Elizabeth A. Booth against the Supreme Lodge, Knights of Pythias, to recover the amount of a benefit certificate for $2,000 issued to William S. Booth, the husband of plaintiff. A trial by the court resulted in a finding and judgment against the defendant for $90.80, being the proportion of the amount named in the certificate which the matured life expectancy of the insured bore to his entire expectancy at the date of his admission to the insurance department of the defendant, and from said judgment the plaintiff prosecutes this appeal.

The material facts are stipulated. The insured joined the insurance department of appellee as a fourth-class member in 1901, when a benefit certificate for $1,000 was issued to him, and he continued a member of the fourth class until July 1, 1907, when he was transferred to the fifth class, plan “A”, and received a certificate for $1,000 in lieu of the one first issued to him. On September 1, 19Í0, the insured applied for and received the benefit certificate here involved for $2,000 in the fifth class, plan “D”. The insured came to his death by suicide on August 15, 1911. The benefit certificate dated July 1, 1907, for $1,000 was paid by appellee, but it refused to pay the face of the certificate here involved upon the ground that by the death of the insured, by suicide within thirty-six months after the date of the certificate, its liability was limited to the amount based upon the insured’s expectancy of life, which amount being the amount of the finding and judgment it tendered to appellant.

Clause 2 of the certificate is as follows:

“The charter, all the laws, rules and regulations of the Society governing the Insurance Department now in force and as the same may be hereafter changed, altered, added to, amended and repealed together wit£. the said application contained in parts one and two, and any subsequently made applications that may be accepted respecting this certificate, and this certificate * * * shall compose the contract between the member and the society.”

Clause 11, under the designation, “Conditions, Provisions and Benefits”, contained in the certificate, provides as follows:

“If the death of the member holding this certificate results from suicide, either voluntary or involuntary, whether the member be sane or insane at the time, * * * then the amount to be paid on this certificate shall be a sum only in proportion to the whole amount thereof, as the member’s matured life expectancy is to his entire expectancy at the date of this certificate, the expectation of life based upon the American experience table of mortality to govern.
The foregoing provision of this paragraph shall not apply to the member if at the time of his death this certificate has been in full force thirty-six months consecutively immediately preceding his death.”

Section 491 of the by-laws of the appellee Society is as follows:

“If the death of any member of the fourth and fifth class heretofore admitted or hereafter admitted to the said classes shall result from suicide either voluntary or involuntary whether such member shall be sane or insane at the time * * * then the amount to be paid upon such member’s certificate in lieu of the full amount thereof, shall be a sum only in proportion to the whole amount as the matured life expectancy is to the entire expectancy at the date of said member’s admission to the insurance department, the expectancy of life based upon the American experience table of mortality to govern, provided in case of members transferred to the fourth class from either of the first, second or third classes, and in case of members transferred from the fourth to the fifth class, the date of such transfer shall be taken as the date of admission to the insurance department in computing the amount to be paid as aforesaid, provided further that this section shall not apply to any member of the fifth class who has at the time of his death been in continuous good standing in the fifth class for thirty-six months immediately preceding his death, nor to any member of the fourth class who has been in continuous good standing in the fourth class for thirty-six months consecutively immediately preceding his death, and thirty-six months succeeding January 1 A. D. 1911.”

It will be observed that there is a clear conflict between clause 11 of the certificate and section 491 of the by-laws with reference to the condition upon which the limitation of liability by reason of the death of the insured by suicide becomes operative. Clause 11 provides that such limitation shall not be operative as to the assured if at the time of his death the certificate has been in full force thirty-six months consecutively immediately preceding his death, while section 491 of the by-laws provides that such limitation shall not become operative as to any member of the fifth class who has at the time of his death been in continuous good standing in the fifth class for thirty-six months immediately preceding his death. If clause 11 of the certificate is controlling, the judgment must be affirmed, because the certificate had not been in full force for thirty-six months consecutively immediately preceding the death of the insured. If section 491 of the by-laws is controlling, the judgment must be reversed, because at the time of his death the insured had been in continuous good standing in the fifth class for thirty-six months immediately preceding his death.

It is well settled law, not controverted by appellee, that the laws and rules of a benefit society are to be liberally construed in favor of the insured and the beneficiary ; that where an attempt is made by such society to work a forfeiture of a benefit certificate the laws, rules and regulations of such society will be construed most strictly "against it; that where the language of a contract of insurance is uncertain or ambiguous, it will always be construed in favor of the insured and against the insurer. Coverdale v. Royal Arcanum, 193 Ill. 91; Knights Templars Indemnity Co. v. Vail, 206 Ill. 404; Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488.

It is insisted on behalf of appellee that other sections of its by-laws contain provisions whereby the insured, when he made application for the certificate in question and upon the issuance to him of such certificate, became subject to be treated as a new applicant for membership in the fifth class, and that when section 491 of the by-laws is, as it should be, construed in connection with said other sections referred to," the contract of insurance is made certain and unambiguous in the respect in question, and that clause 11 of the certificate embodies the true construction in that respect of said section 491 of the by-laws.

A consideration of the several other sections- of the by-laws brought to our attention by counsel for appellee fails to disclose wherein the provisions of said sections may properly be held to apply to the precise situation here involved.

Section 482 provides that members desiring to transfer from a higher rate plan to a lower rate plan shall be treated as new applicants, and members who take extended or paid-up insurance and desire to secure membership in some other plan or upon another certificate in said fifth class shall be treated as new applicants.

The insured did not procure a transfer of his certificate from plan “A” to plan “D”, but retained his certificate for $1,000 in plan “A”, when he applied for and received the certificate here involved. Nor did the insured take extended or paid-up insurance when he applied for and received the'' certificate in question. It follows, therefore, that the provisions of said section 482 of the by-laws," prescribing the conditions upon which certain members of appellee Society shall be treated as new applicants, are not applicable to the situation here presented.

Section 488 provides that any member of the insurance department who is carrying insurance therein for a sum less than $5,000 and who may desire to increase the same in the fifth class, so that he may carry the full amount of $5,000 in said fifth class, shall be eligible to apply for such increase in the fifth class, and he shall be regarded, so far as such increase is concerned, as an original applicant for admission to the insurance department.

Clearly, the provisions of section 488 are by express terms only applicable to a member who desires to increase the amount of his insurance to $5,000, the full amount which he is permitted to carry. The insured at the time he applied for the certificate for $2,000 in question was only carrying insurance to the amount of $1,000, so that his application for the certificate for 12,000, evidenced his desire to only carry insurance to 'he full amount of $3,000, being $2,000 less than he was entitled to carry, and the provisions of said section did not become operative upon his making application for the certificate in question.

It is said by appellee that assuming there is a conflict between the by-laws and the benefit certificate, the provisions of the benefit certificate will prevail over those of the by-laws.

If the provisions contained in the benefit certificate were formulated and adopted by the Supreme Lodge, the governing body of appellee Society, the position of appellee upon this question might be tenable, but a determination of the question predicated upon that hypothesis is not necessarily involved here.

Sections 393, 416 and 417 of the by-laws, in so far as the same are here pertinent, provide as follows:

“See. 393. For the purpose of effecting the orderly conduct of business of the Insurance Department of. this Society, there is hereby created a Board of Trustees to be known as the ‘Board of Control’, which board shall have full charge and complete control of the business and affairs of the Insurance Department, subject at all times and in all things to the direction of and to account and report to the Supreme Lodge Knights of Pythias.”
“Sec. 416. The Board shall prescribe the form of all applications, certificates of membership or other forms, as well as the books, blanks and notices, unless otherwise provided by these statutes.”
“Sec. 4-17. The Board shall have power to make, pass and enforce any order, rule or regulation to cover any exigency or case not provided for in the statutes of the Society, or by reason of inaction of the Supreme Lodge, provided, however, that it shall not possess the power to repeal, add to, take from, nor change any law of the society. The powers that are herein granted to the Board are not to be regarded as ex-kausted by being once exercised, but are to continue until such powers are withdrawn by this society.”

It is apparent from a consideration of these several sections that while the board of control is authorized to prescribe the form of certificates of membership, it is expressly denied the power to repeal, add to, take from or change any law of the society. This express inhibition upon the exercise of such power by the board of control was merely a recognition by the Supreme Lodge of the rule of law which prohibited it from delegating its lawmaking power to the board of control.

As the necessary effect of the provision in clause 11 of the certificate would be to repeal or change section 491 of the by-laws, so as to render the same nugatory, the incorporation by the board of control of such provision in the certificate was unauthorized and ineffectual and the provisions of section 491 of the by-laws must be held to be controlling.

The judgment of the Municipal Court is reversed and judgment will be here entered in favor of appellant and against appellee upon the benefit certificate in question for $2,000 damages and costs of suit.

Judgment reversed and judgment here for $2,000 and costs.