text:
    George Auld, Appellant, v. Otis Elevator Company et al., Appellees.
    Gen. No. 15,411.

      Negligence—when not established. Actionable negligence is not shown if it appears from the evidence that the accident was of such a character that prudent men in the exercise of ordinary care would not reasonably have foreseen or anticipated it as liable to occur from the operation of the machinery in use.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 28, 1910.
    Statement by the Court. Appellant brought an action on the case in the Superior Court for personal injuries against four defendants, discontinued as to two, and the case was submitted to the jury on the issues joined between plaintiff and the remaining two defendants, the appellees here. The court, at the close of plaintiff’s case, directed a verdict of not guilty as to both defendants, denied plaintiff’s motion for a new trial, and from the judgment on the verdict the plaintiff appealed.
    A plant to consist of a number of large buildings was under construction for Sears and Roebuck. In one of such buildings was a boiler room 200 feet long from east to west, 58 feet wide, with brick walls 30 feet high and 17 inches thick. The frame of the building was of steel and was erected before the work on the walls began. It consisted of columns 16x12, 30 feet high, roof beams which rested on the columns and rafters. The columns were flush with the outside of the wall. In the boiler room was an electric crane. To support the rails on which the crane ran, beams were placed inside the north and south walls about twenty-five feet above the floor. One end of the beams was bolted to a column and the other supported by a bracket attached to the column. On the cross beams I beams were placed and on the I beams rails were laid. The bridge of the crane consisted of two steel girders three feet apart and extending across the room. At the ends of the girders were wheels which ran on the rails and were connected with a motor by which the bridge was moved north and south. Another motor, the cross traveler, ran on top of the girders of the bridge and connected with it was a hoist. The crane was a part of the permanent structure of the building, and by it an article could be hoisted in any part of the room, moved east or west by the cross traveler, and north or south by moving the bridge of the crane. Before the accident the south and east walls and the north wall to within about 50 feet of its west end had been completed. Plaintiff was in charge of fifteen brick layers who were working on the west wall and the unfinished portion of the north wall. For the brick layers working on the north wall a putlock scaffold about 15 feet high had been erected, which extended east about 50 feet from the west wall. In the completed portion of the wall was a terra cotta course about 18 inches high, the base of which was 45 inches below the level of the crane rail, and it was intended to extend this course to the west end of the wall. The upper 5 feet of the west end of the completed portion of the wall was perpendicular and toothed. From its foot the wall descended by steps until the level of the wall where brick layers were at work was reached at the third column from the west. The distance between the end of the completed wall and the column was 5 feet and the descent in that distance about 4 feet. The west end of the wall was up nearly to a level with the bottom of the terra cotta course, and to ascertain the precise distance between the crane rail and the bottom of that course, so that he might direct his men where to set that course, plaintiff went on the wall to the west end of the completed portion to measure that distance. He made his measurements and started to go west down the steps of the unfinished wall. As he came near to the column he had hold of the rail with his left hand and the crane came from the west and a wheel ran over his hand and inflicted the injuries complained of. Plaintiff was employed by the Thompson Starrétt Company, who were putting up the brick wall under a contract with the owner of the building. The Thomas Elevator Company operated a number of hoists in different buildings of the plant for hoisting materials, but such hoists were not connected in any way with the crane. The crane was used to move and set in place machinery for the Otis Company, which was installing machinery in the boiler room, and for other contractors for the same purpose. It was operated by Otto Bressert, whose wages were paid by the Thomas Company. When one of the contractors desired to have an article moved by the crane, a man representing the contractor gave signals with his hand to hoist, lower, move east or west, north or south, and Bressert obeyed such signals. In operating the crane Bressert walked on the floor of the building and operated the crane by ropes. At the time of the accident a pump was being moved by the crane for the Otis Company. The man who gave the signals for that company to Bressert stood on the floor near the southwest corner of the building. The crane had moved west to a point near the west wall of the building, picked up the pump, and was moving east when the accident occurred. From the evidence the jury might properly find that prior to the day of the accident the crane had not been moved west beyond the west end of the completed wall. The afternoon before the accident Bressert extended the trolley further west, and after that and before the accident, the crane ran twice to a point near the west wall of the building. At the time of the accident that part of the building where plaintiff was when injured was so filled with exhaust steam from an engine outside of the building as to prevent either the man who gave the signals or Bressert from seeing the plaintiff, and there is no evidence tending to show that either of them saw him or knew that he was on the wall.
    Charles M. Foell and Earl J. Walker, for appellant.
    Eddy, Haley & Wetten, for appellees; Charles H. Pegler, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

That each contractor engaged in work on the building in question, or in installing machinery therein, owed to the servants of every other contractor engaged in work on such building the duty to use ordinary care to avoid injuring them, is conceded by appellee's.

If the contentions of the appellant be admitted, that on the evidence in this case the question whether Bressert, who was employed and his wages paid by the Thomas Company, was operating the crane for that company, as its servant, in the prosecution of the business of that company, under such circumstances as to make that company liable for his negligence in such operation, if he was negligent, and the question whether, under the pleadings and evidence, the Otis Company was liable to plaintiff for the negligent operation of the crane, if it was negligently operated, was also a question for the jury, the question remains whether on the evidence the jury might properly find that the crane was negligently operated.

The only work in progress at the time of the accident was the work of laying up the brick wall from the west end of that wall to the third column from the west. From that column east the wall rose by steps so that five feet east of the column it was about four feet higher than it was at and west of the column. The crane was eight or nine feet above the scaffold on which the bricklayers stood and could be moved without danger of injury to persons standing on the scaffold. Plaintiff went up the steps of the unfinished wall which led from the lower level to the higher, stood on the higher wall and made certain measurements. He then started to go back down the steps and in doing so placed his left hand on the crane rail, where it was run over and injured by the crane.

It was the duty of the person or persons operating the crane to guard against such accidents as could be foreseen as liable to occur, by the exercise of ordinary care. To hold that the jury might from the evidence in this case properly find that the operation of the crane was negligent, we must hold that they might properly find that the person or persons operating the crane could by the exercise of ordinary care have reasonably foreseen and anticipated not only that the plaintiff would go up the steps of the wall to such a height as that he could place his hand on the rail, but also that when in such position he would, although standing or walking on a wall seventeen inches thick, place his hand on the rail.

Our conclusion from the evidence is that the accident was of such a character that prudent men in the exercise of ordinary care would not reasonably have foreseen or anticipated it as liable to occur from the operation of the crane under the circumstances shown by the evidence, and, consequently, that the evidence fails to show a negligent operation of the crane. As plaintiff’s right of recovery, waiving all other questions, depended on proof of the negligent operation of the crane, it follows from what has been said, that in our opinion the verdict of not guilty as to both defendants was properly directed, and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    William G. Clarke, Appellant, v. City of Chicago, Appellee.
    Gen. No. 15,419.
    1. Ordinances—poioer to make building, retroactive. If the city' council from observation or experience has determined that certain provisions relating to the construction and operation of a theatre are necessary for the protection of persons attending the same, it is within the power of such council to apply such provisions to theatres already built as well as to those thereafter to be built.
    2. Ordinances—power of city to enforce building. A city is empowered to enforce a building ordinance by causing to be closed a theatre building which has not been made to comply with a valid existing ordinance.
    3. Municipal corporations—when not liable for acts of officers. A municipal corporation is not liable for the act of its mayor and chief of police in doing an act in attempting to enforce the police power of such corporation.
    Action in case. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 28, 1910.
    Statement by the Court. The appellant, the proprietor of a theatre in Chicago, brought an action on the case against the city of Chicago to recover damages because of the alleged wrongful closing of his theatre by the defendant, acting through its mayor and chief of police, and because of changes he was compelled by defendant to make in his theatre before being allowed to use it. The defendant demurred to the declaration, the demurrer was sustained, and plaintiff electing to abide, final judgment was entered for defendant and the plaintiff appealed. The declaration contains but one count. It sets out the ordinances of defendant relating to theatres in force from October 1903, to January 18, 1904; alleges that plaintiff was the proprietor of a certain theatre which had been built and repaired in compliance with said ordinances and which had been licensed by defendant from May 1, 1904, to May 1,1905; that January 2,1904, said theatre was" wrongfully and without any legal process or warrant closed by defendant acting through its mayor and chief of police; that January 18, 1904, a certain ordinance relating to theatres, which is set out, was passed and approved; that January 25, 1904, certain other ordinances relating to theatres, which are also set out, were passed and approved. By said ordinances material changes and alterations were made in the ordinances relating to theatres in force at the time of their passage. The declaration then avers that January 25, 1904, a certain order, which is set out, was passed by the council and approved by the mayor. This order provides that every proprietor of a theatre who shall agree to make the changes required by the ordinances of January 18 and 25,1904, by September 1,1904, may, under certain conditions therein specified and on giving a bond to the city in the sum of $25,000 conditioned for the observance of the provisions of said ordinances, he permitted to open his theatre. The declaration then avers that plaintiff’s theatre complied with the provisions of the ordinance in force prior to January 18,1904, etc., and that plaintiff was compelled to and did make the alterations necessary to comply with said new ordinances, and was compelled to and did give the bond required by the order of January 25; that thereafter on February 11,1904, plaintiff was permitted to open Ms theatre and that he had then fully complied with all of said ordinances and said order; that July 18, 1904, another ordinance relating to theatres, wMch is also set out, was passed and approved. TMs ordinance makes material changes in the ordinances then in force. It is then averred that plaintiff’s time to comply with the ordinance was extended and he was compelled to and did give a new bond to the defendant August 24, 1904. The declaration then sets forth the changes plaintiff was required to make to comply with said new ordinances and order; avers that the value of his theatre was not increased but was decreased thereby; that he expended in making such changes $30,000, and sustained damages by reason of the closing of his theatre and the reduction of the seating capacity thereof in the sum of $20,000, whereby he was damaged, etc., in the sum of $50,000, etc.
    Atwood, Pease & Loucks, for appellant.
    Edward J. Brundage and Oscar H. Olsen, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

It is not contended by appellant that any provision of the ordinances adopted by defendant in 1904 and set forth in the declaration is unreasonable, partial, not designed to promote the public safety, or transcends the limit of the police power granted by the legislature to the city council of the defendant. His Contention is that while the city council might properly, in the exercise of the police power granted to it, adopt such ordinance as to theatres thereafter to be built, it was without power to adopt such ordinance as to theatres theretofore Mult, in the construction of which the provisions of the law and the ordinances in force at the time it was Mailt had been observed and in all respects complied with.

In this contention we cannot concur. If the city council from observation or experience determined that certain provisions relating to the construction and operation of a theatre were necessary for the protection of persons attending such theatre, it would be as important .for their safety to apply such provisions to theatres already built as to those to be built thereafter. In Seattle v. Hinckley, 40 Wash. 468, 82 Pac. 747, 2 L. R. A. (N. S.) 398, a fire escape had been constructed in compliance with the ordinance then in force. An ordinance was thereafter passed requiring different fire escapes to be provided, and it was contended by the owner of the building that the ordinance deprived him of existing rights. In the opinion it was said: ‘£ There is no merit in the contention that the respondent had any inherent or vested right because he had complied with the law existing at the time he built. There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community. But to be protected against such impairment or imperilment is the universally recognized right of the community in all civilized governments—a protection which the government not only has a right to vouchsafe to the citizens, but which it is its duty to extend in the exercise of its police power. * * * It would be a sad commentary on the law if municipalities were powerless to compel the adoption of the best methods for protecting life in such cases simply because the confessedly faulty method in use was the method provided by law at.the time of its construction.” See also Commonwealth v. Roberts, 155 Mass. 281.

No right of action accrued to the plaintiff because of the order of January 25, 1904. Section 51 of the ordinance of January 18 gave to certain officers the right to close a theatre, when any violation of the provisions of that ordinance was discovered, until such provisions were complied with. The order did not direct that any theatre should be closed. It only provided that the proprietor of a theatre who should agree to comply with the provisions of that ordinance and the ordinance of January 25, by a certain date, might, under certain conditions and on giving a certain "bond, open Ms theatre. Plaintiff complied with the conditions and was permitted to open his theatre February 11, 1904. He afterwards, in order to obtain a further extension of time to comply with the provisions of said ordinances, gave another bond. The order infringed no right of the plaintiff, was not mandatory, but only permissive.

Sections 146 and 147 of the ordinances in force when plaintiff’s theatre was bmlt gave certain officers of defendant, including the mayor, the right to close a theatre in case of a violation of or failure to comply with such ordinances. The matter of regulating the construction and operation of theatres by a municipal corporation pertains to the police power. In Culver v. Streator, 130 Ill. 238-243, it was said: “That power may be defined, in general terms, as comprehending the making and enforcement of all such laws, ordinances and regulations as pertain to the comfort, safety, health, convenience, good order and welfare of the public, and all persons officially charged with the execution and enforcement of such police ordinances and regulations are, quoad hoc, police officers.” The act of the mayor and cMef of police in closing the plaintiff’s theatre was an act done by them in attempting to exercise the police power, and for such acts the city is not liable. Culver v. Streator, supra; Wilcox v. Chicago, 107 Ill. 334; Chicago v. Williams, 182 id. 135; Tollefson v. Ottawa, 228 Ill. 134.

We t.Muk that the order sustaining the demurrer to the declaration was proper, and the judgment is affirmed.

'Affirmed.


text:
    Michael Devaney, Appellee, v. The Standard Company, Appellant.
    Gen. No. 15,436.

      Vebdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 28, 1910.
    Holdom, J., dissenting.
    Morse Ives, for appellant.
    B. J. Wellman, for appellee; Arthur A. House, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the Standard Company, defendant, from a judgment for the plaintiff for $2,000 recovered in an action on the case for personal injuries. Plaintiff was injured January 19, 1902. He brought his action against the Otis Elevator Company August 27, 1903, made the defendant and E. T. Harris additional defendants November 11, 1903, discontinued as to the Otis Company and filed his declaration against appellant and Harris November 19, 1903. March 29, 1907, he discontinued as to all of the defendants except appellant. October 24, 1907, he filed an additional count and appellant filed a plea of not guilty and a special plea of the five years statute of limitations to the additional count. To the special plea a demurrer was sustained.

We think that the original count stated a cause of action against appellant; that the additional count restated the same cause of action, and that the court did not err in sustaining the demurrer to the special plea.

We find no error in the rulings of the court on the evidence or on the instructions.

Appellant further contends that the court erred in denying its motion for a new trial because the evidence is not sufficient to warrant or support the verdict.

Defendant, a manufacturer of ornamental iron work, occupied the second story and a portion of the first of a two story building which fronted on a public alley. At the second floor was a door six feet wide. Two feet below the door was a shelf or platform two feet wide projecting from and fastened to the wall of the building. Some feet above the door was a pipe for the escape of exhaust steam from the engine. The platform and exhaust pipe were in place when appellant took possession of the premises it occupied, and the engine and boiler were in the possession of and were operated by the owner of the building. The Otis Company was a customer of appellant and in the habit of receiving goods from defendant at its factory through said door and platform, and plaintiff was in the service of the. Otis Company. Above the door a beam projected from the building and appellant had provided a chain tackle for lowering goods from the door. To use the tackle a chain was thrown over the beam and the tackle hooked into the chain. When not in use the tackle and chain were removed from the beam and kept in the factory near the front door. There was evidence tending to show that appellant had used the tackle; that some of the employes of the Otis Company had also used it before the day of the accident, but none to show that plaintiff or any of the employes of the Otis Company who were with him at the time of his injury had ever used the tackle or knew that appellant had any such tackle. On the day of the accident the Otis Company sent its wagon and six of its employes to appellant’s factory for a box of iron weighing about 800 pounds. The box was about 7 feet long, 5 feet -wide, and 12 inches deep. The wagon was placed under the door and the box brought by the employes of the Otis Company to the door. The platform was four feet above the bed of the wagon. In cold weather the exhaust steam was condensed into spray which fell on the platform, and as a result in such weather the platform was coated with ice. It was so coated on the day in question and had been for some days before that time, but plaintiff testified that he did not observe any ice on the platform, although the other employes of the Otis Company who were with him testified that they saw it. Two of the company’s employes were placed at the door to shove the box out, tilt and lower it so that the lower end or corner would rest on the platform. The other four men, one of whom was the plaintiff, were placed in the wagon to take hold of the box as it was lowered. It was intended that when the box rested on the platform the men on the wagon should take new holds on the box so that it might be lowered slowly to the wagon. The lower end or corner of the box struck the platform six inches from the outer edge and instantly slid forward to the edge of the platform, the men on the wagon were unable to get new holds on the- box and it fell rapidly until its end struck the wagon, when it fell over on its side, striking and injuring the plaintiff. Plaintiff testified that he had not before assisted in lowering a box at appellant’s factory. The other employes of the Otis Company who were called as witnesses testified that the box was lowered on the day in question in the same manner that they had lowered other boxes, except that always before the box had rested on the platform until they could take fresh holds of it.

Appellant owed to its customers the duty to use reasonable care to provide reasonably safe means and appliances for the removal of articles manufactured by it for such customers, and manifestly owed to the employes of a customer the same duty that it owed to a customer.

In the opinion of the majority of the court, the jury might from the evidence properly find that the means and appliances used by the employes of the appellant for the removal of the box in question were means and appliances furnished by appellant to the Otis Company for the removal of said box, although it appears that other and safer means were provided for that purpose by appellant, of which, however, neither plaintiff nor any of the other employes of the Otis Company who were with him at the time of his injury had any notice or knowledge, and might further find: that the platform, coated with ice as it was on the day of the accident, was not a reasonably safe appliance, and that the defendant was guilty of negligence in respect thereto which directly contributed to plaintiff’s injury, and further: that the jury might also properly find that the plaintiff was in the exercise of reasonable care for his own safety. The judgment will therefore be affirmed.

Affirmed.

Mb. Justice Holdom dissenting.


text:
    Buffalo Gasoline Motor Company, Appellant, v. Fred H. Atwood, Appellee.
    Gen. No. 15,448.
    1. Executions—what not subject to levy. Personal property in the possession of the judgment debtor is not subject to levy if such property was acquired and is held as a bailment with power to sell.
    2. Bailments—what not absolute sale. The fact that personal property is in the exclusive possession of the bailee, is invoiced to him at a certain price and is offered for sale by him with the knowledge and consent of the bailor, does not establish a sale so as to render such property subject to levy upon execution.
    Replevin. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed with judgment.
    Opinion filed November 28, 1910.
    Henry T. Chace, Jr., for appellant.

      Henry Tupper, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment for the defendant in an action of replevin brought to recover the possession of a gasoline engine. The case was submitted to the court. The engine was delivered by the plaintiff to one Cuthbert in September, 1904, was placed by him in a boat which he used up to June, 1905, when it was levied on and sold by a constable under executions against Cuthbert. The defendant purchased the boat from the purchaser at the constable ’s sale. The engine was removed from the boat by the sheriff, under the writ of replevin, and delivered to the plaintiff.

The material inquiry in this case is whether Cuthbert received the engine in question from the plaintiff under a contract of bailment, or under a contract of sale. If the former, plaintiff would be entitled to the engine in whosesoever hands it might be found claiming against the bailment. If the latter, it could be leviedi on and sold on execution against Cuthbert whether it was paid for or not, and although the contract for the sale provided that the engine should remain the property of the plaintiff until it was paid for.

There is no material conflict in the testimony. Plaintiff manufactured engines at Buffalo, N. T. Bullock was its agent at Chicago, where Cuthbert was a boat builder. In September, 1904, Cuthbert was building a motor boat for himself and asked Bullock to write plaintiff and see if he could get him an engine on consignment to put in his bbat. Cuthbert told Bullock that his boat would be a fast one; that all the yachtmen in the city would see it and it would be a good bit of advertising for the plaintiff. It was agreed between Bullock and Cuthbert that the engine should be shipped by plaintiff to defendant on consignment; that it should remain the property of plaintiff, but should be placed by Cuthbert in his boat and used by him. The agreement between Bullock and Cuthbert did not in terms provide for the sale of the engine by plaintiff to Cuthbert and Cuthbert did not at any time give any note or other obligation to pay for the engine, but it was agreed by them that Cuthbert might sell the engine at the regular price. Plaintiff shipped the engine to Chicago to its own order September 12, 19Ó4, and it was delivered to Cuthbert. Plaintiff sent Cuthbert an invoice, the original of which was lost, but plaintiff put in evidence what Cuthbert testified was a substantial copy. The copy contained the words, “Consignment. Sold to A. G-. Cuthbert,” and the price, $433.00. Cuthbert testified that in the original the word “Consignment” was written across the words “Sold to,” and there is no testimony to the contrary. Cuthbert placed the engine in his boat soon after he received it, used the boat and offered it for sale, including the engine, from that time to the time of the levy. In the Spring of 1905 Cuthbert proposed to enter his boat in a race and wished to use acid in the engine to increase its speed. He asked Bullock to write plaintiff and obtain permission to use acid. In a letter by plaintiff to Bullock, dated May 5, 1905, which was shown by Bullock to Cuthbert, permission to use acid was refused and Bullock was directed to tell Cuthbert to return the engine to plaintiff. This was a practical construction of the contract by the parties, before any question as to the nature of the contract had arisen, tending to show that both parties regarded the contract under which the engine was delivered to Cuthbert as a contract of bailment and not of sale.

Much reliance is placed by appellee on the facts that it was intended by the parties that the engine should be installed in Cuthbert’s boat and that it was so installed and used by Cuthbert with the knowledge of the plaintiff for nearly a year.

Ho doubt there may be a contract for the delivery of property under such circumstances and for such uses and purposes that the legal effect and natural operation of the contract works a transfer of the property. If in this case timber had been delivered to Cnthbert out of which to make the keel and ribs of his boat and been used for that purpose, such timber would thereby have become an integral part of the boat and the property therein transferred to Cnthbert. There is no evidence in this case to show how the engine was secured or fastened to the boat. All that is shown is that it was placed in the boat by Cnthbert and taken opt by the sheriff. We do not think that by placing or installing the engine in the boat, the property in the engine was transferred from the plaintiff to Cnthbert.

The transaction in question was, we think, a bailment with power to sell, a “consignment for sale.” In such a bailment the facts that the property is in the exclusive possession of the bailee, is invoiced to him at a certain price, and is offered for sale by him with the knowledge and consent of the bailor, are all consistent with the bailment and do .not make the property bailed subject to be taken on execution against the bailee.

We think that under the evidence in this case the engine in question was not subject to be taken on execution against Cnthbert, but that the property and right of possession therein was in the plaintiff at the time the same was taken on the writ of replevin. The judgment of the Circuit Court will therefore be reversed and judgment entered here for the plaintiff and for costs in this court and in the Circuit Court.

Reversed with judgment here for the plaintiff.


text:
    Courier-Journal Job Printing Company, Defendant in Error, v. Benjamin N. Anderson et al., Plaintiffs in Error.
    Gen. No. 15,342.

      Corporations—when failure to comply with statute regulating admission of foreign corporations does not constitute defense. If a foreign corporation is doing business in this state contrary to statute, an undisclosed principal is not thereby precluded from maintaining an action upon a transaction effected by such foreign corporation acting as agent.
    Error to Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and judgment here.
    Opinion filed December 1, 1910.
    Rehearing denied December 15, 1910.
    Statement by the Court. This writ of error brings before us for review a judgment for $865 recovered against plaintiffs in error by defendant in error in an action of the fourth class in the Municipal Court. The statement of claim in the praecipe is as follows: “Plaintiff’s claim is for goods, wares and merchandise sold and delivered to defendants by Insurance Field Company. ” With the praecipe was filed the affidavit of an officer of the plaintiff stating that the Insurance Field had sold and transferred its right to the account sued on to the plaintiff. Plaintiffs in error entered their appearance and afterwards moved to dismiss the suit. With the motion was filed an affidavit of one of the defendants, which stated that the cause of action sued on grew out of a contract between the Inland Fire Insurance Company, a corporation, and The Insurance Field, assignor of the plaintiff; that said Insurance Field was a foreign corporation .for profit, organized under the laws of Kentucky, and at the time when said contract was made maintained an office in Illinois and transacted business and exercised its corporate powers and franchises there, without having complied with the provisions of the Act entitled an “Act to regulate the admission of foreign corporations for profit to do business in the State of Illinois,” and that it had no certificate from the Secretary of State of Illinois authorizing it to do business in Illinois, etc. The motion to dismiss was denied and the cause submitted to the court.
    The goods for the price of which plaintiff recovered were sold by the Insurance Field between September, 1907, and February, 1908. Said Insurance Field was a corporation for profit organized under the laws of Kentucky, and during the time above mentioned and for a long time theretofore had maintained an office in Illinois and done business there. It had not complied with the Act relating to foreign corporations for profit doing business in Illinois, and had no certificate from the Secretary of State authorizing it to do business here.
    Gorham & Wales, for plaintiffs in error.
    Henry S. McAuley and Thomas M. Headen, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

We do not think that the right to maintain this action is to be determined on the affidavit filed with the motion to dismiss, treated as a special plea, but on the facts of the case as shown by the evidence.

The action is to recover the price of goo^js sold and delivered by the Insurance Field, a foreign corporation for profit, which, when said sales were made, maintained an office in this State and did business here without complying with the provisions of the statute regulating the admission of foreign corporations to do business in Illinois. Hurd’s Ed. R. S. sec. 67 b, et seq., chap. 32. If said foreign corporation sold said goods for itself, and not as agent for the plaintiff, it could not maintain an action for their price. United Lead Co. v. Reedy Co., 222 Ill. 199.

Defendant in error contends that the Insurance Field sold the goods in question as the agent for the plaintiff; that the plaintiff was the undisclosed principal of the seller and therefore can maintain this action for their price, although the Insurance Field could not.

We do not think that the general rule that an undisclosed principal who assumes a contract made by his agent takes it subject to all the attendant just counter claims and defenses of the other contracting party, embraces a right in such other party to interpose as a defense the fact that the agent was not authorized to do business in this State. Ilsley v. Merriam, 7 Cush. 242. But we think that the evidence wholly fails to show that the Insurance Field sold the goods in question as the agent of the plaintiff. The contention that the Insurance Field sold the goods in question as the agent of the plaintiff is based on the provisions of a contract in writing between said parties whióh was in force at the time the goods were sold. By that contract the Field Company agrees that the plaintiff company shall do all of its printing, etc.; that the plaintiff shall have the right to solicit printing, etc., and to use the name, good will, etc., of the Insurance Field; that the Insurance Field shall in such business have no interest except a commission of 2y2 per cent, to be paid to it by the plaintiff. The only obligation of the Insurance Field to the plaintiff imposed by the contract in respect to business done by the former company, was to have all. of its printing done by the plaintiff. The plaintiff did not sell the goods in question. They were sold by the Insurance Field, and as that company could not maintain an action in the courts of this State for their price, the plaintiff cannot.

The judgment will be reversed with judgment here for the defendant and for the costs in this court and in the Municipal Court.

Reversed and judgment here for the defendant.


author: Mr. Justice Holdom

text:
    The United States Fidelity & Guaranty Company, Appellant, v. The People of the State of Illinois, for use of Mary McDonnell, Appellee.
    Gen. No. 12,095.
    1- Executors and administrators—what does not discharge bond. The discharge of an executor does not necessarily satisfy the condition of the bond; nor does the closing of the estate have that effect if the specific conditions of the bond have not been complied with.
    2. Suretyships—when release not effected. A surety is not released from the obligations of a bond by virtue of involuntary acts of the party indemnified.
    Action in debt. Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.
    Heard in this court at the October term, 1904.
    Affirmed.
    Opinion filed November 28, 1910.
    Dupee, Judah, Willard & Wolf, for appellant.
    Edwy Logan Reeves and H. A. Tiffany, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Anthony P. McDonnell died testate, naming Edward H. Comer his executor and the usee in this suit, Mary McDonnell, one of his residuary legatees. The will was admitted to probate in the Probate Court of Cook county and letters testamentary thereunder granted to the executor nominated in the will, Edward H. Comer, and he gave the usual executor’s bond for the faithful performance of the duties imposed upon him by the will as such executor, with the appellant as surety. On May 2,1901, the Probate Court entered an order of distribution on an accounting made by Comer, the executor, and among others directed payment of a certain sum to be made to Mary McDonnell, a legatee, and at the same time conditionally discharged Comer from further duty as executor. Comer failed to make the payment to Mary McDonnell as ordered and a deniand having been made upon Comer and appellant by Mary McDonnell for payment and the same not having been made, this suit was brought upon the executor’s bond against Comer, the principal, and appellant, the surety.

The cause was tried with a jury and the trial judge at the close of all the proofs directed a verdict for $3,611.05, as the amount of damages and, after overruling motions for a new trial and in arrest of judgment, a judgment was entered for $60,000 debt, the penalty of the bond, and $3,611.05 damages, debt to be discharged on payment of the damages, etc. Appellant prosecutes this appeal.

It is not disputed that if any recovery is justified, the amount assessed as damages is the amount due at the time the judgment was entered.

Several pleas were interposed. To the third additional plea a replication was filed, to which replication appellant demurred. This demurrer being overruled, appellant elected to abide by it and assigns and argues as error the court’s action thereon. These are all the pleadings involved in this appeal, and under them appellant raises all the questions upon which it relies for a reversal.

The third additional plea sets up a creditor’s bill proceeding against Mary McDonnell at the instance of one Frank Arnold, in which one Lawler was appointed receiver of the real and personal estate of Mary McDonnell and Comer as executor was ordered to turn over to the receiver moneys in his hands belonging to her and that all these orders were entered without any opposition from Mary McDonnell, but without the knowledge or consent of appellant. The replication to this third plea averred, inter alia, that the creditor’s bill was not commenced until long after the- order of distribution was entered, and that Comer had ample opportunity before the appointment of Lawler as receiver in which to have paid the amount due Mary McDonnell. It was further averred that Comer paid to Lawler, receiver, out of Mary McDonnell’s distributive share $665, leaving in his hands as still due her $3,701.05, and that thereafter an order was entered in the creditor’s bill action dismissing the bill and discharging the receiver without prejudice, and that the judgment the foundation of the creditor’s bill proceeding was satisfied of record.

The evidence of appellee, uncontradicted as it was, is ample to sustain the verdict. Appellant proffered evidence of a suit by Comer against Mary McDonnell and proof of its pendency on appeal in this court. It was excluded on the objection of appellee and it is not now urged that this ruling was erroneous.

One of the conditions of the bond in suit is that Comer as executor will “pay and deliver to the persons entitled thereto all the legacies and bequests contained in said will.” This condition of the bond, so far as concerns Mary McDonnell, has not been complied with. It is undisputed that the amount of the judgment is still due her from Comer, the executor. But in defense it is said Comer is not executor; that he has been discharged and such discharge satisfies the bond so far as the same affects the surety, and, furthermore, that the order of the chancery court on Comer as executor to pay the money in his hands due Mary McDonnell to Lawler, the receiver, releases appellant, the surety, from further liability on the bond.

In the first place we are unable to perceive how the conditional discharge of Comer as executor satisfies the conditions of the bond. There is nothing in the bond relating to the discharge of the executor by the court appointing him constituting a fulfillment or performance of its conditions. The discharge of Comer as executor in no aspect of the case has any effect upon any of the rights of any of the parties to the bond. The condition is that Comer will pay the legacies and bequests in the will to the persons entitled thereto. The records of the Probate Court show that Comer was ordered to pay the amount due Mary McDonnell under the will of his testator. When the order of discharge was entered there was no finding that the amount ordered paid had been paid, or any other finding in conflict with the order of distribution made on Comer’s accounting that there was a sum certain due. Even the closing of the estate, without payment of the legacies and bequests, would not discharge the surety on the executor’s bond.

With the argument of counsel for appellant upon the law and their citation of supporting authority, we find no reason to disagree. However, none of it is analogous on either fact or principle to the case in hand. Appellant is not being held beyond the express terms of its undertaking. There is no agreement between Comer and Mary McDonnell which in the slightest degree affects the liability of appellant. Certainly nothing has been done to enlarge such liability. Nor has any of the assets of the Anthony P. McDonnell estate escaped from the executor with the connivance or knowledge' of Mary McDonnell. Neither has appellant by any action of Mary McDonnell been put in any different position or its liability in any manner changed from the condition of its undertaking. The order in the chancery case on Comer to pay the receiver money due Mary McDonnell it is not averred in the pleading was ever complied with, but on the contrary the proof supports the replication that $665 only was so paid, leaving still due the amount recovered. And the record shows without contradiction that without any further payment by Comer the chancery proceeding was dismissed, the receiver discharged and the judgment in faith of which the chancery jurisdiction was invoked was satisfied of record. We are unable to see how the liability of appellant was in any wise affected or increased by reason of any action had in the chancery cause, or to discover any grounds supporting the contention that its liability as surety has been discharged. The bond in suit was given for the protection, among others, of the legacy payable to Mary McDonnell. The amount due her has not been paid, only $665 paid to Lawler, receiver, on account thereof. Whether this payment was made with the assent of Mary McDonnell and without the knowledge of appellant, is immaterial. The liability of appellant is reduced by the amount of that payment and no more. Nothing done or suffered to be done by Mary McDonnell has in any manner intervened to increase the liability of appellant as surety on Comer’s bond. No direction by her concerning the disposition of any part of the testator’s estate and no agreement of release as to any sum due her as legatee, saving the $665 paid Lawler, for which Comer has received credit, which inures to that extent in reduction of defendant’s liability. The hostile suits against Mary McDonnell were not of her creation or procurement, neither did they adversely affect the liability of appellant as surety upon Comer’s bond. Before appellant can be released of its obligation, without payment, Mary McDonnell must of her own volition do some act which, under the conditions of the bond, would operate to release appellant as surety thereon. This is not like the case of People for use of Sexton v. Seelye, 146 Ill. 189, where the minor after reaching his majority, before his guardian rendered his final account, entered into a secret agreement, unknown to Seelye, the surety on the guardian’s bond, whereby the funds of the estate were withdrawn from the guardianship and invested in the private business of the ward and guardian and were lost. An attempt to charge the surety on the guardian’s bond failed because the ward himself had consented, without the knowledge or assent of the surety, to the investment of his estate in a venture in which it was lost. The surety was thereby, through the action of the ward, released from his obligation on the bond. Nothing done by Mary McDonnell in this case can so operate, for all matters intervening in force of which appellant insists its liability has been brought to an end, were involuntary so far as concerns Mary McDonnell, hostile to her and contrary to her will. Paraphrasing the opinion in Gillett v. Wiley, 126 Ill. 310, we think it is clear that Comer owed Mary McDonnell a duty which could be discharged only by performance of the condition of the bond to pay her the amount of her distributive share of the estate of which he was executor, and that until that is done the bond is in force and appellant liable to respond as surety for the dereliction of its principal, Comer. This is the force and legal effect of its undertaking.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    William M. Torrance, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 15,410.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Assumpsit. Appeal from the Superior Court of Cook- county; the Hon. Beet M. Smith, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed November 28, 1910.
    O. R. Barnett and P. H. Truman, for appellant.
    Calhoun, Lyford & Sheean and V. W. Foster, for appellee; John G. Drennan and E. W. Rawlins, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action for alleged breach of a contract of employment between plaintiff, a civil engineer, and the defendant railroad company, the duration of which, plaintiff claims, was two years. After entering upon the employment the defendant, as plaintiff claims, in violation of the terras of the contract and before its expiration by efflux of time, discharged him. For the time which plaintiff actually worked for defendant he was paid at the contract rate less $25, for which amount plaintiff on a trial before the court had judgment and now prosecutes this appeal because the judgment, he claims, should have been for $450.

The only question raised for our decision is whether the evidence establishes plaintiff’s contention that the term of his contract of employment was for the period of two years. ■

Without reciting all the documents offered, but treating them all as in the record, regardless of the rulings of the trial judge touching their materiality, suffice it to say that taking them as a whole they fail to establish the employment of plaintiff for any definite time. The only reference in the correspondence to time is in the letter of Bainbridge to plaintiff of April 6, 1903, in which the writer says: “I am looking for a man to take charge of an important bridge during construction in the field, a job that will last two years.” We think that what is intended by the words “a job that will last two years,” taking the precedent reference, with which it must be read, it being in the same sentence, is, by interpretation, the time contemplated to be taken in constructing the bridge, and not the duration of the contemplated employment of plaintiff.

Plaintiff made a written application to defendant for employment, in which nothing was said about the duration of the employment. If this application was accepted it constituted the contract. If, as plaintiff contends, it was not accepted and the contract was by correspondence between Bamberg and plaintiff, confirmed by Parkhurst, defendant’s engineer of bridges and buildings, that correspondence does not make a contract.

The judgment of the Superior Court being without error is affirmed.

Affirmed.


text:
    Charles Glennon v. Walter W. Wilcox et al. George Christian, Appellee, v. Walter W. Wilcox, Appellant.
    Gen. No. 16,847.
    1. Receiverships—what essential in foreclosure proceeding. To warrant the appointment of a receiver in a foreclosure proceeding, two conditions are essential of concurrence, neither of which can he dispensed with: first, the debtor must be insolvent, and, second, the property on which the lien is sought to be enforced must be meagre and scant security for the debt. The petition praying for the receiver should aver these essentials and the proof establish them in order that the appointment may stand.
    2. Receiverships—how order of appointment must he sustained. In chancery no presumption is indulged that the evidence heard was sufficient to authorize the entry of an order made. The evidence upon which the order is predicated should be preserved by certificate of evidence.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed November 28, 1910.
    Statement by the Court. This is an appeal by-Walter W. Wilcox from an order appointing a receiver of the rents, etc., of certain improved real estate in a mortgage foreclosure proceeding in which appellee filed an intervening petition to enforce a mechanic’s lien upon the mortgaged premises, and also asking for the appointment of a receiver.
    The only question arising on this review is: Do the facts stated in the intervening petition, fortified by the affidavits and other proofs heard by the chancellor, justify the order of appointment?
    The intervening petition sets forth inter alia that George Christian, the petitioner, entered into a written contract with Walter W. Wilcox to do the painting, decorating and varnishing and furnish materials therefor of certain buildings to be constructed on land described in the petition, and that in pursuance of said contract work was done and materials furnished, for which petitioner received in part payment the sum of $718.50, and that $421.50 remains due and unpaid, claiming a mechanic’s lien for the amount due. The petitioner further avers that certain parties have some interest in and to the premises described as purchasers, mortgagees, judgment creditors or otherwise, “but such interests, if any, have accrued since and are subject to the lien of petitioner;” prays that certain parties be made defendant and that they answer without oath; that an account be taken of the amount due petitioner; that he be decreed a lien therefor pursuant to statute; that Walter W. Wilcox be decreed to pay him the amount found due by a short day and that in default the premises may be sold, etc.; that in case of a sale and a failure to redeem defendants and all persons claiming under them be barred and foreclosed of all right of redemption and that a receiver may be appointed, and for other relief. This intervening petition is verified by the oath of petitioner. Subsequently petitioner filed his affidavit, stating that appellant Wilcox was insolvent, also setting forth that there were two trust deed encumbrances upon the property and mechanic lien claims aggregating several thousand dollars, and “that the encumbrances and claims against said property amount to its full value, and that the taxes assessed against said property for the year 1909 have not been paid and are now delinquent, and that the same amount to three hundred thirty-six and 40/100 ($336.40) dollars.” The stipulation of the parties to this appeal admits that the chancellor heard the testimony of Walter W. Wilcox on the motion for a receiver.
    Adams, Bobb & Adams, for appellant; James B. Wescott, of counsel.
    Atwood, Pease & Loucks, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

To warrant the appointment of a receiver in cases of the nature of the one under discussion two conditions are essential of concurrence, neither of which can be dispensed with. They are, first, that the debtor is insolvent, and, second, that the property on which the lien is sought to be enforced is meagre and scant security for the debt. It nowhere appears in the intervening petition, which is appellee’s pleading, that Wilcox is either insolvent or that the premises on which appellee seeks to establish a mechanic’s lien is insufficient security for his claims, which he avers is paramount to all other existing liens and encumbrances. While it is true that appellant’s affidavit, submitted as proof upon the hearing of the motion, states the insolvency of Wilcox and that there exists several trust deed encumbrances and judgments and claims for mechanics’ liens “which amount to its full value,” it is not averred in the petition that the encumbrances or claims set forth are liens upon the premises over which a receivership is sought. Both the allegations and proofs fall short of meeting legal requirement justifying the appointment of a receiver. The ruling on this subject is fairly uniform in this State. In Haas v. Chicago Building Society, 89 Ill. 498, the court say, in discussing the propriety of granting an order appointing a receiver: “Such action will not be taken, however, unless it be made to appear the mortgaged premises are insufficient security for the debt and the person liable personally for the debt is insolvent or at least of very questionable responsibility.” To a similar effect is Gooden v. Vinke, 87 Ill. App. 562; Richey v. Guild, 99 ibid. 451; Kountze v. Omaha Hotel Co., 107 U. S. 378; So. Building & Loan Ass’n. v. Carey, 114 Fed. 288. In Richey v. Guild, supra, the court say: “A combination of these two things” (insolvency and insufficient security of mortgaged premises) “seems to be required in all cases we have examined.” High on Receivers, Ed. 4, par. 667.

The stipulation of the parties states that Wilcox gave oral testimony on the hearing of the motion to appoint a receiver, but we do not find such testimony in the record. As the testimony is not before us, we cannot say what it tended to prove. It was appellee’s duty to preserve such testimony and we cannot say in ah equity cause, as we would say in one at law, “that the court having heard the witness and the party seeking a review failing to preserve in the record such witness’ testimony, we will assume that the facts established by it were sufficient to authorize the court’s action.” The rule controlling is stated in Goodrich v. Thompson, 88 Ill. 547, thus: “If any evidence was in fact offered to sustain the petition, it was the duty of petitioners to preserve it in the record; otherwise this court will assume none was submitted.”

The order of the Circuit Court of June 13, 1910, appointing Charles N. Loucks receiver is reversed.

Reversed. .


text:
    The Merchants Loan & Trust Company et al., Appellees, v. The Northern Trust Company et al., Appellees, impleaded with Marshall Field et al., Appellants.
    Gen. No. 17,134.
    1. Wills—canon of construction. The cardinal canon of construction in the interpretation of a will is from the whole context to gather the intent of the testator, and when so gathered, to declare it.
    2. Wills—powers of trustees. Hela, under the construction of the provisions of the will in question in this case, that the trustees were authorized and empowered to invest the trust funds of the estate represented by them' in real estate located as well in other states as in the State of Illinois.
    3. Trusts—powers of trustees to invest funis of estate. If trustees appointed by a will are domiciled in this state and subject to the jurisdiction of its courts, there is no prevailing public policy which forbids their exercise of a power conferred by will to invest the funds of the estate in real estate located in states other than in Illinois.
    Bill to construe will. Appeal from the Circuit Court of Cook county; the Hon. Thomas C. Windes, Judge, presiding.
    Heard in this court at the December term, 1909.
    Affirmed.
    Opinion filed November 28, 1910.
    Holland & Elliott, for appellants.
    Wilson, Moore & McIlvaine and Isham, Lincoln & Beale, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

Marshall Field, a citizen of Chicago who amassed a great fortune, died testate. His last will and testament is embraced in a will with two codicils thereto. After disposing of a considerable portion of his estate by specific bequests he created a trust as to the residue of his estate primarily for the benefit of his two grandsons, Marshall and Henry Field. The duration of this trust will embrace about one-third of a century of time from the death of the testator. The trustees of such residuary estate are the appellees in this appeal. The corpus of the trust estate is said to be not less than thirty millions of dollars in value, of which the appellees, The Northern Trust Company, Chauncey Keep and Arthur B. Jones are trustees of a fund amounting to two millions of dollars, the main beneficiary being Ethel Field Beatty, the daughter and only surviving child of the testator. The Merchants Loan & Trust Company and the above named Chauncey Keep and Arthur B. Jones are the trustees of the remaining residuary trust estate. The bill in this case was filed by the last named appellees for the sole purpose of procuring a judicial construction as to their powers under the will relating to the investment of the residuary estate.

It appears that the estate left by the testator was about equally divided between real and personal property. His keenness and sagacity as an investor were such that he did not confine his investments within the borders of the State of his domicile, but owned both real and personal property in other States of the Union. He owned real estate not only in Chicago but in New York City and in the States of Massachusetts, Wisconsin, Washington and Minnesota, and stocks of railroad, industrial and other companies incorporated not only in Illinois but in other States. Since the death of Marshall Field and in assumed accord with the powers granted by his will the trustee complainants took title by purchase to two pieces of valuable Chicago real estate and have acquired pro rata shares of additional issues of stock in several corporations in which testator owned stock, and paid therefor with trust funds. The bill prays that a decree may be entered ratifying and confirming the investments made and construing the will of testator as to the powers therein conferred upon the trustees as to the kinds and classes of property in which they may invest trust funds, and as to whether the power conferred includes the power to invest trust funds in real estate in this State as well as within other States of the Union and in stocks of corporations organized in this and other States. Those parts of the will pertinent for consideration in construing and determining the powers either expressly granted or necessarily implied therefrom are embraced within the 21st and 23rd articles of the will, and they are here set forth for a convenient understanding of the matter in hand and to segregate them from the complicated and voluminous remaining provisions of the will, which are not involved in this proceeding. They are as follows:

“I hereby give to and invest them, and their successors and associates in trust, with such powers over and such title and estate in and to the property in this will devised and bequeathed as may be necessary or convenient to carry into full effect my intentions and designs in the execution of this will, and in the several devises, donations and legacies herein specified and made.
“If at the timé of my decease I shall he the owner of any lands, tenements or hereditaments situate, lying and being in any other state or country than the State of Illinois aforesaid, and the laws of such other state or country shall he such that any of the provisions of this instrument shall or might be in conflict therewith, or would be to any extent made ineffective or inoperative thereby, then it is my will and I direct that my executors and residuary trustees shall have the power and shall proceed forthwith to sell such lands and convert them into money or other personal property and the proceeds of such sale shall he applied as the property sold and converted was directed to be.
“While I do not wish to control or embarrass the discretion of my executors and residuary trustees, it is my desire that they shall retain for my estate the better class of securities, including mortgages, railroad or other corporate stocks or bonds, and other securities in which they may find any part of my estate invested at my death, and that in selling or converting any securities they shall in the first instance dispose of such as in their judgment shall seem to be of the less substantial and enduring value for the purpose of investment.
“To the respective trustees of the several trust funds or estates created by this my will, I give and devise full powers of management and control of the respective trust funds or estates, to invest and reinvest the same, and to vary the securities and property in which from time to time such trust funds or estates may be invested and to let and demise any lands and tenements at their discretion respectively; but in making leases it is my desire that preference be given to leases for long terms rather than shorter ones, not exceeding, however, except in cases of ground leases for building purposes, the period of twenty (20) years. The respective trustees are authorized and empowered to sell, transfer and convey any of the trust property for the purpose of rebuilding or for reinvestment, and in case any buildings or building being part of the trust property shall be damaged or destroyed by fire, they may use any and all insurance money that may come to their hands, and any other money or personal property of. the trust estate for the purpose of restoring said buildings or building, or of rebuilding on the same premises in their discretion; but they shall have no power to borrow money or to mortgage any property.
“It is my desire that the respective trustees shall give a preference, whenever it may be practicable to do so, to the making of ground leases instead of sales of lands, under their powers of sale. In making such leases, however, I direct my said trustees before giving possession of demised premises to require and take from the lessee or lessees in every lease adequate security that the lessee or lessees shall within a reasonable time erect or cause to be erected upon the demised premises a building that shall, where the situation and character of the property will in the judgment of my trustees justify^ such requirement, be of first class fire proof construction.
“It is my will and I direct that investments be made with reference to the security of the trust fund rather than the rate of interest or income to be derived from it, and that where real and personal property have been given in trust, a proper proportion be maintained between them. It has been my general intention to keep at least half of my property in real estate and the rest in personal property; but in this particular my trustees are to exercise their own discretion and act in each case as may under the circumstances seem best to thepi.”

The decree prayed was entered and the minor defendants ask this review.

The will of Marshall Field contains no direct or explicit direction as to the character of property in which the trustees shall invest and keep “invested the trust funds, or as to the situs of such property or as to the nature or quality of corporations, whether foreign or .domestic, in which such funds shall be invested, in either stocks or bonds or both. But the will is replete with suggestion and advice which clearly and indisputably indicate a well settled intention in this regard. Not only by suggestion and advice is such intention made clearly manifest, but by the example of his own conduct in this regard, in the acquisition of the estate he accumulated and which came to the possession of his trustees as such, did he unmistakably shadow forth his wish that his own conduct and method should be continued in the management of the trust estate. What can more naturally be gathered from this will than that Marshall Field in effect said to his trustees, “My experience in the world of business and finance has convinced me that the safe and lucrative channels of investment are along the lines of the properties which I have so successfully accumulated. Tn the interest of the trust estate confided to your care, and for the welfare of the beneficiaries of the trust by me created, I desire that you continue to manage and invest and reinvest the trust estate as near as ever changing conditions will allow along the same lines and in the same character and kind of property, both real and personal, as I did in accumulating these investments.”

The cardinal canon of construction in the interpretation of a will is from the whole context to gather the intent of the testator, and when so gathered to declare it; or, in the words of the Supreme Court of Pennsylvania in re Rush’s Estate, 12 Pa. St. 375, “The question is one of intention and depends, not on a rule of law, but on the interpretation of the will.”

Marshall Field clothed his trustees with ample and broad discretion in the management of the trust estate and with full and unhampered powers in the sale, investment and reinvestment of the trust funds. When it is recalled that Marshall Field’s investments maintained a parity between real and personal property, the following language found in the will is fraught with convincing significance: “that investments he made with reference to the security of the trust fund rather than the rate of interest or income to be derived from it, and that where real and personal property have been given in trust a proper proportion be maintained between them.” To hold that the trustees are confined to investments in this State, or to investments in personal property only, and cannot acquire with the trust funds real estate in this or other States of the Union, would do violence to the testator’s clearly defined intention and defeat the purposes of acquisition by -the trustees of property for the trust estate of the character acquired by himself, which acquisition the tenor of his will makes clear was his intention.

In support of this conclusion we quote several excerpts from the will of Marshall Field, found in the very helpful brief of the learned counsel for appellees:

“I give and devise full powers of management and control of the respective trust funds or estate, to invest and reinvest the same, and to vary the securities and property in which from time to time such trust funds or estates may be invested, and to sell and demise any lands and tenements at their discretion respectively.
******* *
“The respective trustees are authorized and empowered to sell, transfer and convey any of the trust property for the purpose of rebuilding or for reinvestment.
******* *
“It is my desire that the respective trustees shall give a preference, whenever it may be practicable to do so, to the making of ground leases instead of sales of land, under their powers of sale.
******* *
“It is my will and I direct that investments be made with reference to securing the trust funds rather than the rate of interest or income to be derived from it, and that where real and personal property have been given in trust, a proper proportion be maintained between them. It has been my general intention to keep ' at least half of my property in real estate and the rest in personal property, hut in this particular my trustees are to exercise their own discretion and act in each case as may under the circumstances seem best to them.”

There is no restriction in the will, either direct or implied, that the trustees shall confine their purchases of real estate from trust funds to lands in this State. On the contrary testator was the owner of lands, as above recited, in several States outside of Illinois, including city lots in New York City and .tracts of land in Western States as far west as the State of Washington. That he desired such investments to be retained by the trustees is seemingly indisputable from the fact that he directed their sale only when the laws of the State were in conflict with their being retained. And if it may be said, as we have already intimated that it may, that it was the intention of the testator, made manifest by his will, that the trustees should follow the policy pursued by himself in making his investments, then it must be admitted that he clothed the trustees with power to acquire for their respective trusts real estate not only in Illinois, but in other States of the Union, unless it can be said that such investments are contrary to the policy of our State and so declared by our courts. It is admitted that our courts have not yet so decided nor in fact passed upon this question. The argument that the investment of the funds of the trust estate in real estate in other States in permitting the trust funds to escape from the jurisdiction of our courts, while in some aspects logical, is not convincing. The trustees of both trusts are domiciled in this State and are at all times answerable to the beneficiaries, in so far as their trusteeship is properly involved, for any breach of their trust in the courts of this State, and the jurisdiction of our courts may be as effectually invoked in disputes arising from investments made outside of the State as to those investments made within it. McCullough v. McCullough, 44 N. J. Eq. 313, and In re Reed, 45 N. Y. App. Div. 196, are claimed to support the contention of the learned counsel for appellants, and this claim is not disputed. However, Tennant v. Staley, 75 L. J. Rep. 56, Amory v. Green, 13 Allen 413, Thayer v. Dewey, 185 Mass. 68, and In re Hall, 164 N. Y. 196, in effect announce the doctrine that in the absence of statutory authority uncontrolled powers of investment will not be held to limit investments to the state or country where the trust was created. On the other hand, the statute of 1905, section 1, concerning investments by trustees, whose powers are not designated by the instrument of their creation, confers power to invest in securities outside of this State and in express terms authorizes investments of trust funds in the bonds of any of the States of the United States or upon first mortgages upon real estate in any State or in the first mortgage bonds of any corporation in any State. This would seem to announce a policy of the State as not only recognizing but authorizing investments of trust funds in property in States without our own borders. If a trustee, without express power, may in virtue of this statute acquire for the trust estate first mortgages on real estate in any State which may make it necessary, in the protection of the trust fund so invested, for the trustee to acquire the title to the mortgaged premises on foreclosure, or otherwise, how can it be seriously contended that the policy of the State inhibits a trustee, with powers conferred so to do, from making an investment in real estate in a State other than this 1 We therefore hold that the power of the trustees to invest trust funds, in their discretion, in real estate in States other than Illinois, conferred by construction of the will as the intention of the testator, is not circumscribed or affected by any State policy, nor in conflict with it, but on the contrary is favored by the policy of the State as expressed in the statute supra.

The action of the trustees in acquiring a pro rata of new issues of stock owned "by testator and forming part of the trust estate, was clearly in pursuance of their duty under the will and is sanctioned by the statute last referred to in these words: “Any trustee may continue to hold any investment received by him under the trust or any increase thereof.” They are therefore doubly fortified in their action in this regard. So far the results of such investments show the wisdom of their action and the sagacity of the testator in making the original investments. In cases of this character and under circumstances ordinarily to be foreseen, the action of a trustee in fostering the investments made by the creator of the trust cannot be questioned as imprudent. A failure in this case of the trustees to have pursued the course which they did might have subjected them to severe criticism and have bordered very near to an inexcusable breach of duty.

The decree of the Circuit Court construing the trust clauses of the will of Marshall Field here involved and defining the powers of the trustees thereunder meets with our approval, and being in our opinion without error it is affirmed.

Affirmed.


text:
    Royal League v. Sarah A. Shields et al., Appellees. Appeal of Agnes J. Carden, Appellant.
    Gen. No. 15,393.
    1. Fbaternai benefit societies—who may question eligibility of beneficiary. The fact that a beneficiary named in a certificate is not eligible is not an objection such as the society alone can raise, as the rights of the parties are fixed by law and are not affected by the action of the society in filing a bill of interpleader to determine conflicting claims.
    2. Fbaternal benefit societies—when certificate void. If the original certificate issued by a society has been canceled and surrendered and a new certificate issued, such new certificate is a nullity if it names an ineligible beneficiary and in consequence the original certificate is considered effective and in force.
    3. Fraternal benefit societies—when statute does not govern determination of eligibility of beneficiary. If the by-laws with respect to beneficiaries are narrower than a statutory classification, the by-laws, and not the statute, control in determining the question of eligibility.
    4. Fraternal beneitt societies—who not eligible as beneficiary. A stranger to the blood of the member, who holds no relationship to him and to whom the member owes no legal obligation of support, is not eligible as a beneficiary under the statute of classification.
    Bill of interpleader. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiel, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and remanded with directions.
    Opinion filed December 1, 1910.
    Statement by the Court. The Boyal League, a fraternal benevolent Association existing under the laws of this State, filed its bill of interpleader, in which appellant and Sarah A. Shields and Frieda Martha Carolina Wassman were made defendants, praying for leave to deposit a certain sum of $4,000 claimed under a benefit certificate issued by it upon the life of one Michael Shields, deceased, leaving the court to settle the conflicting claims of the defendants thereto. Such proceedings were had that the Boyal League was permitted to and did pay the $4,000 into court, and thereupon was discharged out of the case.
    On July 2,1888, Michael Shields made application to the Boyal League for a benefit certificate, which in part is as follows:
    “I direct that in case of my decease all benefit to which I may be entitled from the Boyal League be paid $1,000 to Agnes Jennings and $3,000 to Kitty Jennings, related to me as nieces, subject to such future disposition of the benefit among my dependents as I may hereafter direct, in compliance with the rules of the order.”
    The application being approved, certificate No. 3835 was on July 31, 1888, issued to Michael Shields, containing this provision, viz:
    “These conditions being expressly assented to and complied with the Supreme Council of the Boyal League hereby promises and binds itself to pay out of its Widows’ & Orphans’ benefit fund to Agnes Jennings $1,000, and Kate Jennings $3,000, nieces, a sum not exceeding $4,000, in accordance with and under the provisions of the laws governing said fund, provided that said member is in good standing at the time of his death, and provided also that this certificate shall not have been surrendered hy said member and another certificate issued at his request in accordance with the laws of this order.”
    In March,’ 1900, Michael Shields’ niece Kitty Jennings, named as a beneficiary in certificate No. 3835, died and Michael Shields surrendered that certificate to the Boyal League and procured the Boyal League to issue certificate No. 32307, dated May 10, 1901, in every material respect of the same tenor as the one surrendered except that Frieda Martha Carolina Wassman was named as sole beneficiary and designated therein “as dependent upon said Shields.” Michael Shields died May 6, 1906, without having surrendered the last mentioned certificate, intestate, without leaving direct descendants, but the defendant, Sarah A. Shields, his widow. Agnes Jennings, subsequent to the date of certificate No. 3835, married and survived Michael Shields, and is now Agnes J. Carden, the appellant. Sarah A. Shields claimed the amount paid into court as widow of Michael Shields, and Frieda Martha Carolina Wassman claims the money as beneficiary named in certificate No. 37307, and appellant’s claim is grounded on the contention that Frieda Wassman not being eligible as a beneficiary under the conditions of the certificate or the laws of the Boyal League, the surrender of certificate No. 3835 was inoperative, that it was consequently in full force and effect at the time of the death of Michael Shields, and that as the survivor of the two beneficlaries named in that certificate she is entitled to be adjudged the rightful recipient of the whole amount paid into court by the Boyal League. The defendants each answered, setting up their respective claims and the cause was referred to a master to take proofs and report his conclusions of law and fact thereon to the court. The master found in favor of the claim of Frieda Wassman and after overruling the objections of Mrs. Shields and appellant filed his report, and the chancellor after hearing the exceptions of appellant and Mrs. Shields to the master’s report overruled them and entered a decree awarding the amount remaining on deposit after payment of costs to Frieda Wassman as the beneficiary under certificate No. 37307; from which decree Agnes J. Carden prosecutes this appeal.
    The testimony develops that Frieda Wassman was a manicurist and that Michael Shields met her as such and by having her manicure his finger nails became acquainted with her and took a liking to her and interested himself in her welfare. Learning at one time from her employer that her absence from his shop was caused by the illness of her mother, he visited her home and discovered that Mrs. Wassman was ill, that Frieda was in attendance upon her and that the loss of Frieda’s salary consequent upon her absence from her work distressed Mrs. Wassman acutely. Shields thereupon provided them with money and gave them thereafter on an average, "counsel claim, of $50 a month for nine years before his death. Frieda lived with her mother and was never a member of Shields’ family. During a greater part of the time Frieda worked at her calling as a manicurist, to which she added “ladies hairdressing,” sometimes regularly and at other times attending upon ladies at their residences. Shields at one time told Frieda she could depend on him, that she need not go out to work, that he considered her as his adopted daughter. He also informed her of the Boyal League certificate being made out in her name for her benefit, that his wife had enough, that appellant was taken care of, and that Kitty Jennings, his other niece, was dead.
    George C. Fry, for appellant.
    Henry Russell Platt, for appellee, Frieda Wassman.
   Mr. Justice Holdom

delivered the opinion of the court.

We think the crucial, decisive question for our determination is: Was Frieda Wassman within the meaning of the law of this State and of the Boyal League dependent upon Michael Shields ? If she was, the decree must be sustained; if she was not, the decree must be reversed and the money deposited by the Boyal League be ordered paid to appellant.

Payment by the Boyal League of the amount of the certificate into court and its being dismissed out of the case, operated to divest it of all interest in the fund, which as a matter of fact it is not making any claim to. Tet the money is in court under the bill of interpleader for the express purpose of having the court determine which of the defendants is legally entitled to it. Such is the purport of Grand Lodge A. O. of U. W. v. Ehlman, 246 Ill. 555, where it was held that the fact that the beneficiary named in the certificate is not eligible, is not an objection such as the Society alone can raise, as the rights of the parties are fixed by law and are not affected by the action of the Society in filing a bill of interpleader to determine conflicting claims. Royal Arcanum v. McKnight, 238 ib. 349.

On this appeal our determination is limited to the rights of the parties before us—appellant and Frieda Wassman. In its final analysis the vital question resolves itself into the proposition as to which of the two certificates was in force at the time of Michael Shields’ death. Consequently if the second certificate was within the power of the Boyal League to issue, then that is the certificate in force. If it was without the power of the Boyal League to designate Frieda Wassman as beneficiary for the reason that she was not dependent upon Michael Shields, then that certificate is a nullity and the surrender of the first certificate did not operate to cancel it. For as said in Order of Golden Cross v. Merrick, 163 Mass. 374: “The second certificate binds only in case the second certificate is effectually substituted for the first, and the first certificate stands unless the beneficiaries named in the second are persons competent to take. Elsey v. Odd Fellows Rel. Ass’n, 142 Mass. 224.” Grand Lodge A. O. of U. W. v. Ehlman, supra.

Chapter 73, section 258, R. S., and the object of the order are in harmony. Section supra reads: “Payment of death benefits shall only be paid to the families, heirs, blood relations, affianced husband or affianced wife of or to persons dependent upon the member.” The original application for a certificate of incorporation states: “and to benefit the widows, orphans and dependents of deceased members thereof.” This was subsequently enlarged to read, and to benefit the widows, orphans, husbands and dependents of deceased members thereof. ’ ’

Was Frieda Wassman dependent upon Michael Shields ? She was a stranger to his blood and held no relationship to Michael Shields which the law terms dependent. In other words, Shields could not legally, at any time, have been compelled by law to support her or to contribute anything toward her support. She was at no time either a member of his family or his household. She was not his daughter by nature or adoption. Whatever sums he may have paid her from time to time were purely voluntary, and he could have ceased payments at any time without incurring any legal liability for so doing. He could not have been compelled to pay, at any time, contrary to his will or by recourse to the courts. '

When the authorities cited by the learned counsel for Frieda Wassman are carefully scanned it is found that none go to the extent of holding that a person can be designated a beneficiary who is not within the class authorized by the by-laws of the association issuing the certificate to a member. Consequently such authorities are of no controlling force in deciding the rights here involved.

The by-laws of the Royal League as to the class of persons who may become beneficiaries are controlling. Complying with such by-laws, Frieda Wassman was designated dependent upon the member, and if she was not in fact ‘£ dependent, ’ ’ then the certificate is inoperative and she has no rights in virtue of it. Even should it be conceded that the statute is broader than the by-laws —which is not the case—and that under the statute she might lawfully be named a beneficiary, still the bylaws will govern. Under them the power of the Royal League must be measured. This is clearly manifest from Old People’s Home Society v. Wilson, 176 Ill. 94, where it is said: “It is no answer to say that the statute of the State under which the association was organized was broad enough to permit such society to take. The corporators of the corporation chose to restrict the objects of its benevolence to the immediate family of the member, and the courts must construe the contract as they find it. The Policeman’s Benevolent Association is an Illinois corporation, which has voluntarily chosen to restrict its benevolences to the immediate families of its members, and we must apply the restrictions found in the statement of the object of the association as specified in the certificate of incorporation, and not the statute itself, in its broadest scope. It is obvious that there is nothing illegal or against public policy in the action of the association in narrowing the scope of its beneficial action.” Murphy v. Nowak, 223 Ill. 301.

It is further clear that Frieda Wassman was not dependent on Michael Shields within any known definition of the term “dependent.” She was capable of and did by her earnings care for herself. The money of Shields was in fact given for and applied to the support of Frieda’s mother and except at the times when she ceased her work to care for her mother, she did not personally benefit from Shields’ benevolent contributions. In the well reasoned case of Supreme Council Catholic Benevolent Legion v. McGinness, 59 Ohio St. 531, in which a brother of the member was held not to be dependent, the court say: “The term ‘or dependents’ Immediately follows the word ‘family.’ The language taken together imports one who is dependent upon a member for support, as a wife or child, and it will be noted that the declared purpose of the organization, as specified in the charter, is ‘to afford moral and material aid to its members and their dependents.’ This language, it is true, might include a brother, but not necessarily; for it might easily be that the brother himself was the head of a family, and for. aught that appears that is true in the present case. To bring a brother within the category of the benefit clause, it would be necessary to allege and prove that he was in fact one of the family in such a sense as to be, in part at least, dependent upon the member for support. Ballou v. Gile, 50 Wis. 614, 7 N. W. 561. The relationship of brother standing alone would be wholly insufficient. The classes of persons to be benefited being designated in the charter, it is clear that the member would be without power to select as a beneficiary one not so designated, and the corporation equally without power to accumulate a fund for persons other than those of the classes so named.”

The niece of a deceased wife of a member named in the certificate as a dependent, who worked in the family for wages, was held in Grand Lodge v. Gandy, 63 N. J. Eq. 692, not to be a dependent. Caldwell v. Grand Lodge of U. W., 148 Cal. 195; Lavigne v. Ligue des Patriotes, 178 Mass. 25; Murphy v. Nowak, supra.

The rule defining dependency is well stated in McCarthy v. N. E. Protection Association, 153 Mass. 314, thus: “Trivial, casual or perhaps wholly charitable assistance, would not create a relation of dependency within the meaning of the statute or by-laws. Something more is undoubtedly required. The beneficiary must be dependent upon the member in a material degree for support or maintenance or assistance, and the obligation on the part of the member to furnish the means, it would seem, rests upon some moral or legal or equitable ground, and not" npon the purely voluntary or charitable impulses or disposition of the member.” In Good v. Towns, 56 Vt. 410, dependent in a statute was construed to mean legally dependent. Duval v. Hunt, 34 Fla. 85. We therefore hold that Frieda Martha Carolina Wassman was not dependent upon Michael Shields and that certificate No. 37307, in which she is named beneficiary, as such dependent, is void, because she was, under the by-laws of the Boyal League, ineligible to take any benefit under it. It therefore follows that appellant as survivor of her deceased sister (their designation in certificate No. 3835 being valid) is entitled to receive the whole amount paid into court by the Boyal League under its interpleader in virtue of the last named certificate, which was in full force at the time of the death of Michael Shields. Miller v. Prelle, 122 Ill. App. 380.

The decree of the Circuit Court is reversed and the cause is remanded to that court with directions to enter a decree finding that appellant Agnes J. Carden is the legal beneficiary of all of said fund and entitled to receive the same and ordering and directing that it be paid to her.

Reversed and remanded with directions.