text:
    Mattie White Spalding, Appellant, v. Estate of William R. White, Deceased, Appellee.
    1. Executors and administrators, § 209

      —when contract by deceased to pay daughter for waiving claim of alimony against husband and keeping house for deceased, basis for claim against estate. Where a father agrees to pay his married daughter a certain sum of money, if she will waive her claim to alimony against her husband, and after the divorce come and live with her father and keep house for him, and she had fully complied with the agreement on her part at the time of her father’s death, without such sum being paid, field that she was entitled to such sum as a claim against her father’s estate, and field that she was entitled to have such claim allowed though she was granted alimony on her petition to the court where the divorce was granted after the death of her father.
    2. Contracts, § 134

      —when contract by father to pay daughter to waive claim for alimony against husband and keep house for father not illegal. Where a father agrees to pay his daughter a certain sum if she will waive her claim for alimony against her husband and come and live with her father and keep house for him, and the agreement on her part is fully performed at the time of her father’s death, held that the agreement is not void as being only a promise to make a gift not fulfilled within the lifetime of the donor, nor void under the statute of frauds as being a promise to answer for the debt of another, nor void as against public policy because made to secure a divorce.
    3. Contracts, § 83

      —when agreement to waive claim, for alimony sufficient consideration to support a promise by a third party. An agreement by a daughter to waive, forbear and discontinue her claim for alimony against her husband in a divorce suit is sufficient to support a promise by her father to pay her $1,000 if she will come to his home and keep house for him.
    4. Contracts, § 142

      —when contracts relating to alimony not invalid as against ptiblin policy. It is not contrary to public policy in an action for divorce to permit the parties interested therein to make any agreement which they may see fit concerning their property rights or for the support of the wife, and the fact that the wife may have been influenced by a third party to make an agreement relating alone to alimony will not vitiate the contract made by the third party.
    5. Frauds, statute of, § 10

      —when contract not void as being a promise to pay debt of another. Contract by a father to his married daughter to pay her a certain sum in consideration that she would waive her claim for alimony in a divorce suit against her husband and come and keep house for her father, held to be an original undertaking on the part of the father and not void under the statute of frauds as being a promise to pay the debt of another, and held, though the contract was within the statute of frauds, that the plea of the statute of frauds cannot be invoked when the contract has been completely performed by the other party.

      Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 16, 1913.
    Rehearing denied December 3, 1913.
    Barry & Morrissey and Lester H. Martin, for appellant.
    Welty, Sterling & Whitmore and Frank Y. Hamilton, for appellee.

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

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Appellant, Mattie White Spalding, is the daughter of William R. White, deceased, she married one Dr. J. B. Spalding who lived in Wisconsin; Mrs. Spalding began an action for divorce, and the question arose concerning the payment of alimony. William R. White was then a widower, and for the purpose of avoiding a controversy over the question of alimony, he entered into an agreement with Mrs. Spalding by which he promised her that if she would not contest the question of alimony with her husband and would come to his home, if a divorce was granted, and keep house for him he would give her $10,000. Mrs. Spalding waived her claim for alimony.

That a contract was made .and its terms and conditions agreed upon between Mrs. Spalding and her father is not disputed. Mrs. Spalding procured her divorce and went to her father’s home in Bloomington, Illinois, where she lived and kept house for him until bis death, thereby fully completing and carrying out the terms and conditions of the contract on her part. Her father in his lifetime turned over to her, to secure the payment of this $10,000, two notes amounting to $20,000, which he represented to her as being good security; and during his lifetime paid interest to her on this $10,000; the last payment of interest was made by a check for something over $900 a few days before his death. This check was paid by his executors after lu's death, hut he never paid the principal for the reason, as stated by him, that he was a little short of money and needed what he then had in his business. Mrs. Spalding filed a claim against his estate, the claim was disallowed by the County Court and on appeal to the Circuit Court was there rejected; and from the judgment of the Circuit Court this appeal is prosecuted.

Appellant insists that the judgment should be reversed for the reason that she waived and surrendered at the request' of her father a valid and subsisting claim which she had against her husband; that she fulfilled all of the terms and conditions of her contract with her father, and the notes having proved worthless which were given to her to secure the payment of the same; and that the judgment is against the manifest weight of the evidence and is contrary to the law.

Appellee on the other hand insists that the judgment is correct, and should be affirmed, claiming that the agreement was only a promise to make a gift, and was not fulfilled within the lifetime of the donor and therefore void; that it was a promise to answer for the debt of another and void under the statute of frauds; and also because it was made to secure a divorce between Mrs. Spalding and her husband and is therefore contrary to public policy. 1

The contention that the promise was a mere gift is conclusively disproved by the testimony of both counsel for Mrs. Spalding and Dr. Spalding in the divorce proceedings, who were present when the contract was entered into. Their evidence shows the promise was made upon condition that Mrs. Spalding would make no claim for alimony from her husband, and after the divorce she would go to the home of her father and keep house for him; both of these conditions were complied with by her. She thereby not only waived a valid claim she then had against her husband, but also performed services after that time and up to the date of her father’s death in his household.

The agreement to waive, forbear and discontinue her claim for alimony against her husband was a sufficient consideration to support this contract. Morgan v. Park Nat. Bank, 44 Ill. App. 582; McMicken v. Safford, 197 Ill. 540; Warren v. Warren, 105 Ill. 568; Dalby v. Maxfield, 244 Ill. 214.

It is insisted, however, that because appellant petitioned the court where the divorce was granted for an allowance of alimony from her husband after the death of William B. White, which petition was allowed, she cannot recover.

Appellant fulfilled her promise to the deceased who has failed to comply with his agreement to pay her the $10,000, whereby he violated his contract, and the fact that she was compelled to obtain support from her former husband after her father had failed to comply with the terms of his contract will not permit the estate of the deceased to escape its performance, after the contract has been fully performed by her; to permit this would be to allow the estate to profit by the wrongful act of the testator.

Even though the waiver of her right to alimony should be held not to be a sufficient consideration to support the agreement, it will not seriously be contended that the agreement to perform the duties of housekeeper for appellee’s testator during the remainder of his life, and the fulfillment of the promise, was not a sufficient consideration to support the contract; and there is no contention made by appellee that this would not be sufficient consideration.

From the conclusion above reached, it therefore follows that the contention that this promise was a mere gift cannot be maintained.

The contention that it was a promise to answer for the debt of another and void under the statute of frauds is equally untenable for the reason that it is conclusively proved that instead of being a promise to answer for the debt of another it was an original undertaking by appellee’s testator. While it was a duty imposed by law upon Dr. Spalding to care for and maintain bis wife, it was not such an obligation that where for a sufficient consideration another person by contract agrees to furnish the wife with support can avoid the contract under plea of the statute of frauds, and, even though the contract had been within the statute of frauds, appellee cannot now invoke the plea of that statute for the reason that the contract has been fully and completely performed by. the other party with whom it was made. Knight v. Collings, 227 Ill. 348.

Upon the further and last contention made by appellee, that it was a promise made to secure a divorce between Mrs. Spalding and her husband, there is no evidence in this record upon which such a contention can be sustained. The application for divorce was pending, cause for divorce existed, the divorce was finally granted, and it is not contrary to public policy in an action for a divorce to permit the parties interested therein to make any agreement which they may see fit concerning their property rights or for the support of the wife; they may make any agreement settling their property rights or waive any property rights which they deem advisable, and the fact that the wife may have been influenced by a third party to make an agreement relating alone to alimony will not vitiate the contract made by the third party.

The finding of the court is clearly against the manifest weight of the evidence and is contrary to the law. The cause was heard in the Circuit Court without a jury, the jury having been waived. This court is therefore authorized to finally determine the cause and either enter a final judgment in this court or remand the cause and direct what judgment shall be entered. The judgment is, therefore, reversed and the cause remanded to the trial court with directions to allow this claim and enter judgment against the estate of William B. White for the sum of $10,000, together with interest thereon from the death of the testator.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    Louis Heilbrunn et al., Appellants, v. J. J. Ellsworth et al., Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 299

      —when judgment for costs against interpleaders in attachment not a final judgment. Judgment entered on demurrer against interpleaders for costs in an attachment proceeding, there being no judgment finding that the property was the property of attachment defendant or that the interpleaders were not owners of or entitled to the property, held not a final judgment, from which an appeal may be taken, and appeal was dismissed with permission to either party to withdraw the record and make application to the trial court for a final judgment.
    Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding.
    Heard in this court at the October term, 1912.
    Dismissed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by J. J. Ellsworth and Harry McNair, partners, doing business under the firm name of Ellsworth and McNair, against William Fink in attachment. Louis Heilbrunn and David Kahn, partners, doing business under the firm name of Heilbrunn and Kahn, claiming the property levied upon, filed interpleading petitions to which the attachment plaintiffs filed pleas. The intervening petitioners demurred to the pleas and the demurrer was overruled. The intervening petitioners electing to stand by their demurrer, judgment was rendered against them for costs, from which judgment they appeal.
    Vause & Hughes, for appellants.
    Henley & Douglas and Spencer Ward, for appellees.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

2. Appeal and error, § 267 —jurisdiction on appeal from interlocutory judgments. On appeal from an interlocutory judgment, such as a judgment for costs alone, the reviewing court obtains no jurisdiction by reason of the appeal, and the question that no final judgment was rendered is jurisdictional with the court, though the parties submitted the cause as though a final judgment had been rendered.


text:
    Florence Marshall et al., Appellees v. Modern American Fraternal Order, Appellant.
    1. Insurance, § 763—commencement of limitation period under incontestable clause when new benefit certificate is issued. Where the original benefit certificate contains a clause making the certificate incontestable after three years, and a new certificate is issued the same as the original, except that the names of the beneficiaries are changed, the limitation period commences from the date of the original certificate and not the date of the new certificate.
    2. Insurance, § 717

      —when by-laws of a fraternal insurance order will not be construed retroactive. A by-law passed after the issuing of a benefit certificate will not be held retroactive and applicable to certificates then in force unless such intention is expressly declared or must necessarily be implied from its language, and such is the rule where a member has stipulated to. be bound by subsequently enacted by-laws.
    3. Contracts, § 187

      —when court will adopt construction of the parties. Where parties to a contract have placed a construction upon the contract, or where they have had dealings between themselves, and have by their conduct and dealings placed a construction thereon, such construction will be adopted by the court, unless it is contrary to the plain terms of the contract.
    4. Insurance, § 717

      —when a by-law enacted after the issuance of a benefit certificate will be construed prospective. Where a benefit certificate is issued at the time of the existence of a by-law making the certificate incontestable after three years, except for a misrepresentation as to age, or nonpayment of dues, and later a by-law was adopted which repealed the former by-lawmaking the benefit certificate incontestable and provided that the certificate shall he void if the member commits suicide at any time, held that the insurer by issuing a new certificate to the member after the adoption of the latter by-law, containing the same incontestable clause as in the former certificate, construed the latter by-law as prospective only and not retroactive.

      Appeal from the Circuit Court of Greene county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 16, 1913.
    David L. Wright, for appellant.
    M. Meyerstein, Jr. and Rainey & Jones, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, some topic and section number.

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

On the 28th day of July, 1900, appellant, a Fraternal Insurance Order organized under the laws of the State of Illinois, issued a benefit certificate to Jackson Marshall for the principal sum of one thousand dollars. On May 3, 1910, at Marshall’s request, a new certificate was issued and the beneficiary changed and appellees became beneficiaries under the new certificate.

Appellees’ declaration avers that Marshall became a member of appellant Order on the 28th day of July, 1900, when a benefit certificate was issued making the wife of Jackson Marshall beneficiary. The declaration further avers that on May 3, 1910, almost ten years after the date of the issuance of the first policy, appellant Company, at the request of Marshall, issued a new certificate in which at his request appellee became the beneficiaries and were beneficiaries at the time of his death. The declaration further makes all necessary averments as to compliance with all rules and regulations of the order, together with the death of Jackson Marshall on May 24, 1911, and the furnishing proofs of loss, etc. The declaration avers further that the contract of insurance between Marshall and appellant was entered into on the 28th day of July, 1900, the date of the original certificate; that the new certificate of May 3, 1910 was issued for the sole purpose of changing the beneficiaries; that the new certificate was identical with the original except as to beneficiaries; and that the contract of insurance must be considered and held to have been made at the date of the original certificate, notwithstanding the new certificate was afterwards issued.

Defendant pleaded the general issue and three special pleas; to the special pleas a demurrer was sustained. The question of the ruling of the court in sustaining the demurrer to these pleas is not before this court, for the reason that appellant took leave to file four additional pleas which contain all of the matters set forth in the pleas to which the demurrer was sustained.

The first additional plea avers that plaintiffs ought not to have and maintain their action for the reason that the beneficiary certificate declared upon constitutes only a part of the contract between defendant and Jackson Marshall, that the original certificate was issued upon the written application of Marshall, and contains the clause stating it was issued.

“Upon condition that the statements made by said member in his or her application for membership and in answer to the interrogatories of the local medical examiner are true, full and correct; also issued subject to the laws, rules and regulations of the Order now in force or that may thereafter be promulgated, and all are made part of the contract.”

The plea then avers that at the time of the issuance of the original certificate in plaintiffs’ declaration mentioned the following by-law was in force and effect:

“Incontestable Certificate 50. The benefit certificate-issued by this Order shall be incontestable after three years except for misrepresentation as regards age and for failure to pay any dues and assessments.”

Also avers that if the insured had not correctly stated his age, then the beneficiary should he paid only such amount as they would he entitled to had the correct age been stated. The plea then avers' that after the date of the original certificate, and on the 30th day of August, 1901, being less than three years from the date' of the original certificate and prior to the death of the said Jackson Marshall, the defendant society adopted, promulgated and put in force the following by-law:

“Suicide. Section 53. If any person holding a beneficiary certificate comes to his or her death by the hand of his or her beneficiary or beneficiaries, except by accident, or if he or she shall come to his or her death by his or her own hand, whether sane or» insane, then the beneficiary certificate of such member shall be null and void. * * * Section 92. All laws or parts of laws heretofore enacted or amended,' except as herein specified, are hereby repealed.”

The plea then further avers that on the 24th of May, 1911, the said Jackson Marshall came to his death by his own hand.

The second additional plea avers that the same was issued upon the written application of Jackson Marshall, and contained the same clause in regard to the rules and % regulations then in force or which might thereafter be promulgated. The plea further avers that by section 43 of the Revised Laws it is provided as follows:

“A member in good standing may surrender his or her beneficiary certificate and have a new one issued subject to the laws of the Order, such changes to be made upon petition, accompanied by fifty cents certificate fee, signed by the member, attested by the Secretary * * * and the issuing of such new certificate shall cancel and render null and void such previous certificate to such member.”

The plea further avers that on the 29th of April, 1910, the said Jackson Marshall desired to surrender his original certificate and have a new one issued to him, subject to the laws of the Order as provided in said section 43, that he surrendered his certificate and that on May 3, 1910, the new certificate set forth in plaintiffs’ declaration was issued, that thereupon from that' time the original certificate was null and void and the certificate of date May 3, 1910, was the only contract of insurance existing between Marshall and the defendant Order. The plea further avers that it is expressly provided that if a member while in good standing in three full years from the date of said certificate, to wit: from the 3d day of May, 1910, should die by his or her own hand, whether sane or insane, then said certificate should be null and void and no recovery should be had upon the same. And further avers that on the 24th of May, 1911, the said Marshall died by his own hand.

The third additional plea avers the issuance of the original certificate on the 28th of July, 1900, and that for the purpose of changing beneficiaries Jackson Marshall surrendered that certificate and a new certificate was- issued to him of date May 3, 1910, as alleged in the declaration, and that thereupon the original certificate became null and void, and that new certificate was the only contract of insurance between Marshall and the defendant Order, the repeal of the by-law making the certificate incontestable and the adoption of the by-law forfeiting the certificate if the insured committed suicide as alleged in the first additional plea, then avers the death of Marshall by his own hand.

The fourth additional plea avers the same facts as set forth in the others, in a condensed form.

Plaintiff demurred to each of the first, second, third and fourth additional pleas, and the demurrer was sustained by the court. Defendant elected to stand by these pleas, withdrew the plea of general issue, and the court thereupon rendered judgment on the demurrer and against the defendant for one thousand dollars, the amount of the certificatefrom which judgment it appeals, and assigns as error the judgment of the trial court in sustaining the demurrer to these pleas.

The declaration and pleas both set forth the issuing of the original certificate, its surrender and the issuing of the new certificate on May 3, 1910, for the purpose of changing beneficiaries.

Opinion was filed in this cause March 18,1913, and a rehearing allowed. Upon careful consideration of the petition for rehearing and reconsideration of the arguments presented, we have arrived at a different conclusion than that expressed in our former opinion.

It is conceded by appellant that at the time of the issuing of the original certificate a by-law was in force which provided that the certificate should be incontestable after three years from its date except for a misrepresentation as to age or the failure to pay dues. By its pleas appellant insists that the adoption of the by-law of August 30,1901, which is as follows:

“If any person holding a beneficiary certificate comes to his or her death by the hand of his or her beneficiary or beneficiaries except by accident, or if.he or she shall come to his or her death by his or her own hand, whether sane or insane, then the beneficiary certificate of such member shall be null and void.” abrogated the by-law in force at the date of the original certificate and that the new by-law must control, that this by-law fixes no time within which the provision against committing suicide is prohibited.

Appellant contends that it is not liable under the policy for the reason that the by-law which provided that the policy of insurance should be incontestable after the expiration of three years from its date was repealed August 30, 1901, and that a new by-law then passed which did not contain the limitation period or the incontestable clause, and that under and by virtue of the new by-law the policy became void and no recovery could be had thereunder if the insured committed suicide at any time; also that by reason of the fact that the old policy issued to the insured on July 28, 1900, was surrendered at the time that the new certificate was issued May 3,1910, that the time for computing the limitation period, if such limitation period is held to be operative, should commence from the date of the last certificate, May 3, 1910.

It is contended on the other hand by appellees that the by-law contained the incontestable clause having been in force at the date of the original certificate, and appellant having issued its certificate containing this incontestable clause, that the certificate with the incontestable clause then became such a contract that the insured acquired a vested interest thereunder and that any by-law passed by the Order abrogáting the conditions of this contract should not be applied thereto, and that the by-law passed on August 30, 1901, should not be given a retroactive effect, but should be held to apply only to policies issued after that date. Appellees also insist that the limitation period in the new certificate should begin to run from the date of the original policy, that being the time when the deceased became a member of the Order, and having remained a member of the Order for nearly ten years, the issuing of the new certificate did not create the beginning of a new time from which to count the limitation period.

Notwithstanding the contention of appellant that its by-law in force when the original certificate was issued was repealed, it issued to the insured on May 3, 1910, almost nine years after the promulgation of this new by-law, its new certificate with the following clauses therein:

“In the event that said member while in good standing, shall come to his or her death by the hands of a beneficiary, except by accident, or if in three full years from the date hereof said member shall die by his or her own hand, whether sane or insane, then this certificate shall be null and void and no recovery shall be had on the same.
It is hereby agreed and understood that this certificate shall be incontestable after remaining in force three full years after the date thereof. ’ ’

These clauses are in direct conflict with the by-law which it is insisted by appellant shall control, and it is a familiar rule of law that where a contract is written by one party and its terms conflict, the construction most favorable to the other party will be adopted.

Two questions are thus presented by this record, one, whether the limitation period of three years under which the policy might be contested by reason of the suicide of the insured commences at the date of the original policy or at the date of the new certificate; the other, whether the by-law passed by the appellant order on the 30th day of August, 1901, repealing the old by-law providing for the incontestable clause, and providing that the policy should be void if the insured committed suicide at any time, whether sane or insane, shall be held to apply to this policy. As to the limitation period, the issuing of the new certificate did not make any new contract with the insured except as to who should be beneficiaries thereunder, and the time of the computation of the three-year limitation period, if applicable, must be held to be the date of the original certificate.

The authorities of this State hold that a by-law passed after the issuing of a benefit certificate will not be held to be retroactive and Applicable to certificates then in force, unless the intention that it shall be so operative is expressly declared or must necessarily be implied from its language, and this rule is adopted even where a member has stipulated that he will be bound by the laws of the Order that may thereafter be enacted. Benton v. Brotherhood of Railroad Brakemen, 146 Ill. 575; Voigt v. Kersten, 164 Ill. 314; Covenant Mut. Life Ass’n. v. Kentner, 188 Ill. 431; Nowak v. Murray, 127 Ill. App. 132.

Without determining the question as to whether the insured obtained a vested interest in this policy and by reason of which appellant could not pass a by-law applicable to his certificate, the rule of law is well settled that where parties have entered into a contract and have placed a construction upon that contract, or where parties have had dealings between themselves, and have, by their conduct and dealings placed a construction thereon, then the courts will follow that construction; and that construction will be adopted by the court unless it is contrary to the plain terms of the contract. Appellant had in force the by-law which provided that the certificate should be incontestable after the expiration of three years, except for the reasons stated, on July 28, 1900, issued its certificate containing this incontestable clause and on August 30, 1901, adopted a by-law repealing the by-law providing the certificate should be incontestable, but notwithstanding the adoption of the by-law on August 30, 1901, almost nine years after adopting the by-law repealing the former by-law providing for the incontestable clause, issued its new certificate to Marshall containing the same incontestable clause of the original certificate. If it was the intention of the appellant Order that the repealing of the incontestable by-law was to be applicable to all policies issued prior thereto, then why did appellant issue its new certificate, upon the surrender of the old one, containing the same incontestable provisions?

By issuing its new certificate containing the same incontestable clause, appellant Order has construed its by-law to be only prospective, and not retroactive, and in so doing has held that it does not apply to the certificate issued to Marshall in force at the time of the adoption of the new by-law; and having adopted that construction, the court will follow it. Hall v. First Nat. Bank, 133 Ill. 234; Street v. Chicago Wharfing & Storage Co., 157 Ill. 605; Ingraham v. Mariner, 194 Ill. 269.

For the reasons hereinbefore stated, the pleas filed by appellant present no defense to the declaration,. and the trial court properly sustained the demurrer, and the judgment is affirmed.

'Affirmed.


text:
    The People of the State of Illinois for use of Lucella Cruthis, Appellee, v. John B. Revelli and Western Brewing Company, Appellants.
    1. Bonds, § 34

      —when plea of nil debet not proper. Nil debet is not a good plea in an action of debt on a penal bond which recites on its face an acknowledgment of the debt, and a demurrer tc such plea is properly sustained.
    2. Corporations, § 506

      —nature of plea of ultra vires. The plea of ultra vires is a denial of the power and authority of the pleader to do and perform acts with which it is sought to be charged.
    3. Intoxicating liquobs, § 57

      —when plea of ' ultra vires by surety in action on dramshop keeper’s bond demurrable. In an action on a bond given by a dramshop keeper under R. S. c. 43, § 5, J. & A. If 4604, a plea of ultra vires by one of the sureties, a brewing corporation, engaged in manufacturing and selling beer, denying it had authority under its charter to become surety on the bond, held demurrable, the plea not showing that it did not have general authority to perform all acts in providing for the sale of its products.
    4. Intoxicating liquobs, § 57

      —when plea by surety in action on dramshop keeper’s bond demurrable. In an action on a bond given by a dramshop keeper to procure a license, there having been a judgment previously recovered against the dramshop keeper for the wrongful sale of liquor to plaintiff’s husband, a demurrer to a plea denying the sale of liquor to plaintiff’s husband, and denying that plaintiff was injured in her means of support thereby, held properly sustained.
    5. Intoxicating liquobs, § 57

      —conclusiveness of prior judgment against dramshop keeper in action on dramshop keeper’s bond. In an action on a bond given by a dramshop keeper to procure his license, a judgment recovered against the dramshop keeper for damages resulting to plaintiff from the wrongful sale of liquor to plaintiff’s husband is conclusive that the sales were made, that they were wrongful and that plaintiff was damaged by reason thereof.
    6. Intoxicating liquors, § 57

      —when evidence offered in action on bond insufficient to show vindictive damages were recovered in prior action against dramshop keeper. In an action on a dramshop keeper’s bond, where a judgment had been previously recovered against the dramshop keeper for wrongfully selling liquors to plaintiff’s husband, and such judgment remained unpaid, action of court in sustaining objection to the introduction in evidence of the stenographer’s report of the evidence in the former suit, to prove that a verdict was rendered in that case for vindictive as well as actual damages, held not error, such evidence being insufficient to prove that vindictive damages were included in the verdict, and the amount of the verdict not justifying such contention.
    7. Intoxicating liquors, § 57

      —when charter of surety inadmissible in suit on dramshop keeper's bond. In an action on a dram-shop keeper’s bond, an objection to introduction in evidence of the charter of a brewing corporation, one of the sureties, to show it had no authority to execute the bond, held properly sustained.
    Appeal from the Circuit Court of Montgomery county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 16, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    D. R. Kinder and Schaefer & Kruger, for appellants.
    F. M. Guinn, Miller, McDavid & Miller and Harry L. Ballard, for appellee.

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

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Appellee sues John B. Revelli for the wrongful sale of intoxicating liquor to her husband, thereby causing his death. Appellant, the Western Brewing Company, and O. L. Kinzer were sureties on the bond given by John B. Revelli, required to be given by the keeper of a dramshop under section 5, chapter 43 of the Revised Statutes (J. & A. ¶4604), and for its wrongful sale to the husband of appellee, a judgment of three thousand dollars was recovered against him. That judgment not having been paid, appellee brought suit on the bond against John B. Revelli, the Western Brewing Company and O. L. Kinzer as sureties. Appellant Western Brewing Company filed pleas of nil debet and ultra vires. Demurrers were sustained to both of these pleas. Appellants then filed pleas denying the sale of intoxicating liquor by John B. Revelli to the deceased, and denying that appellee was injured in her means of support by reason of the death of her husband. A demurrer was sustained to this plea and appellant Western Brewing Company and Kinzer then filed a plea setting np that they were not parties to the suit in which the judgment was rendered, had had no opportunity to defend, also that on that trial evidence was introduced and instructions given to the jury on the question of vindictive damages, and that vindictive damages were allowed to appellee against said John B. Revelli. A demurrer to this plea was overruled, replication filed and issue joined.

Appellee offered in evidence the record of the judgment against John B. Revelli, together with the bond, on which bond appellants Western Brewing Company and Kinzer were sureties, and rested. Whereupon appellant moved to direct a verdict, the motion was overruled. Appellants then introduced in evidence the instruction given in the action brought by appellee against John B. Revelli, relating to vindictive damages in that case. Appellants then offered to show by the stenographer who reported the evidence in that case the evidence given upon that trial concerning notice to John B. Revelli requesting him not to sell intoxicating liquor to the husband of appellee; objection to this evidence was sustained. Appellant Western Brewing Company then offered in evidence its charter as a corporation, for the purpose of showing that it did not have the power to become surety upon the bond. Objection was also sustained to this offer of evidence. This being all the evidence on behalf of appellant, they then renewed their motion to direct a verdict for the defendants and each of them. This motion was overruled. Whereupon the court, on motion of appellee, directed a verdict against appellants for the amount of the former judgment, three thousand dollars.

It is contended by appellants that the court erred in refusing to direct a verdict for the appellants and each of them, that it erred in sustaining objections to each offer of evidence made by them, and erred in directing a verdict for plaintiff.

Bevelli was engaged in the sale of intoxicating liquors. In order to obtain his license to sell intoxicating liquors it was necessary that he furnish and provide a bond running to the People of the State of Illinois and conditioned as required by the Dramshop Act. For the purpose of assisting him in securing his license, appellant Western Brewing Company signed this bond. The Brewing Company was incorporated to manufacture and sell beer; in order to continue in business it was necessary to dispose of its product, and it was empowered under the law to do all lawful acts in the furtherance of its business. In order to assist the appellant Bevelli to conduct a dramshop and make sales of beer, which was a product manufactured by it, the Western Brewing Company executed this bond. It is but a legitimate inference that in creating an agency for the sale of a product produced by it to that extent it was benefited in its business. And it should not be permitted after having been instrumental in securing the license for the dramshop keeper, by whom the wrong was committed and the damage done, to deny its authority to execute the bond by means of which it was instrumental in securing the license for Bevelli, for without the license having been issued upon the furnishing of this bond, as required by law, no injury would have occurred to appellee through this channel.

Upon the contention that the court erred in sustaining demurrers to the plea of nil debet, it has been a universal rule of practice in this State that nil debet is not a good plea in an action of debt, the bond reciting on its face an acknowledgment of the debt, and this being an action brought upon a penal bond executed by appellants, it follows that the demurrer to the plea of nil debet was properly sustained.

The appellant Brewing Company insists that under its charter it had no authority to become surety upon the bond of a dramshop keeper, and that its plea of ultra vires was a good plea. The plea of ultra vires is the denial of the power and authority of the pleader to do and perform acts with which it is sought to be charged. And in this instance the pleas set forth that the Western Brewing Company was organized and incorporated under the laws of Illinois for the manufacture and brewing of beer, malt extract and other malt, vinous and spirituous liquors and the sale of the same, and denying that it was incorporated as a surety company, and that by reason of it not having specific authority under its charter powers to become such surety that the obligation executed by it is null and void. This plea does not aver or show in what manner or by what means the sale of its product might be consummated, and from all that appears in this plea it had general authority to do and perform all acts which would tend to provide for and be instrumental in the sale of its products. While we do not wish to be understood as holding that this corporation had the power to do a general surety or security business and become surety under any and all conditions, we do hold that the plea filed by the Western Brewing Company in this action does not show and is insufficient for the purpose of presenting the • question as to whether its act was ultra vires, all the material facts averred in the plea might be true and still the act of becoming surety on this bond not be ultra vires. The demurrer to this plea was properly sustained. Blue Island Brewing Co. v. Fraatz, 123 Ill. App. 26; Chicago & M. Tel. Co. v. Type Tel. Co. 137 Ill. App. 131.

The next plea filed by appellant denies the sale of intoxicating liquor by John B. Revelli to the deceased and denies the appellee was injured as a result thereof in her means of support. Appellee having prosecuted the cause of action against the dramshop keeper who committed the wrong and for whom the Western Brewing Company and Kinzer became sureties, the judgment recovered by appellee in that action against the dramshop keeper is conclusive that the sales were made, and that they were wrongful, and that appellee has been damaged by reason thereof as against the sureties of the dramshop keeper; and it follows therefore that the plea presented no defense, and the demurrer was properly sustained thereto.

The Western Brewing. Company and Kinzer then filed an additional plea setting up that they were not parties to the suit in which the judgment was rendered and had had no opportunity to defend; that on that trial evidence was introduced and instructions given on the question of vindictive damages, and that vindictive damages cannot be recovered in an action upon this bond. It is under this plea that appellants offered evidence to which objections were sustained.

Appellant insists that it was error for the court to sustain the objection to the evidence of the stenographer by whom appellant offered to prove from his notes evidence of notice to Revelli not to sell liquor to appellee’s husband. The only object of the tender of this evidence was for the purpose of proving that in the verdict rendered by the jury in the action against Revelli the jury awarded vindictive as well as actual damages. The admission of this evidence could not have in any way determined or enlightened the jury trying this cause upon the question as to whether or not vindictive damages were included in their verdict. The cause of action in that case was the death of appellee’s husband, the amount of the judgment was three thousand dollars. The action was brought for the loss, damage and injury to the support of appellee ; by the death of her husband she was deprived of the support to which she was entitled. The amount of the verdict recovered precludes any contention that vindictive damages were included therein. The courts of this State have sanctioned judgments in greater amounts than this upon the mere presumption of loss of support. The court did not err in sustaining the objection to this evidence.

Appellant Western Brewing Company then offered in evidence its charter and this offer was made solely for the purpose of showing that the Brewing Company had no power under its charter to execute the bond. From what has heretofore been said in this regard, the court properly held that the Brewing Company was estopped to deny its authority to execute this bond and properly sustained the objection to this evidence.

This being all of the evidence offered on behalf of appellants, the court again properly overruled its motion to direct a verdict and the court having sustained demurrers to all of the pleas filed by the defendants except the one concerning vindictive damages, and the only evidence admitted in support of this plea being the instruction given by the court upon the former trial, there was no evidence to sustain the plea. The court properly instructed the jury to find the verdict for appellee.

Finding no error in this record, the judgment of the trial court is affirmed.

Affirmed.


text:
    Ezekial Edwards, Appellant, v. Elijah Etter, Appellee.
    (Not to be reported in full.)
    Appeal from the County Court of Morgan county; the Hon. Edward P. Brockhouse, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Elijah Etter against Ezekial Edwards to recover a commission alleged to be due the plaintiff for services rendered in procuring a purchaser for defendant’s farm. From a judgment in favor of plaintiff for two hundred and seventy dollars, defendant appeals.
    Abstract of the Decision.
    1. Brokers, § 37

      —when broker not the procuring cause In securing a purchaser for a farm. In an action to recover a commission for procuring a purchaser for defendant’s farm, the declaration alleging that the farm was listed with plaintiff to sell at one hundred and twenty dollars per acre, a verdict for plaintiff held to be manifestly contrary to the evidence, the evidence showing that the farm was sold for one hundred and five dollars per acre by the defendant and there being no evidence that plaintiff ever informed defendant that the person malting the purchase was a prospective buyer, or that the farm was sold by defendant at a less price than one hundred and twenty dollars per acre with any intention to deprive plaintiff of a commission.
    2. Brokers, § 36

      —sufficiency of performance by broker to entitle him to a commission. To entitle a broker to a commission he must be the efficient cause in either effecting a sale, or in finding a buyer who is ready, willing and able to buy at the stipulated price, or to whom the owner afterwards sells.
    Edward C. Knotts and Walker & Woods, for appellant.
    William N. Hairgrove, for appellee; Robert Tilton, of counsel.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    E. F. Bowles, Executor, Appellant, v. Ida Seymour et al., Appellees.
    1. Pledges, § 24

      —rights of pledgor in equity. Though ordinarily when property is pledged as collateral security for a debt, the pledgor has no interest in the property until after the payment of the indebtedness, and in an action to recover it before the debt is paid it is necessary to either aver a tender or an offer to pay, a court of chancery is not required to arbitrarily so hold but in the exercise of its equitable powers may determine what the rights of the parties are and protect them in its decree.
    2. Creditors’ suit, § 7

      —when fraudulent conveyances may be set aside to enforce collection of a judgment held as collateral security. On creditors’ bill to set aside certain conveyances as fraudulent for the purpose of enforcing the collection of a judgment held by one of the defendants as collateral security for certain notes, a decree setting aside the conveyances and allowing the complainant the amount due on the judgment less the amount due on the part of the notes, held erroneous in so far as it failed to allow an offset against the judgment of the amount of all the notes.
    Appeal from the Circuit Court of Montgomery county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 16, 1913.
    Rehearing denied December 3, 1913.
    J. H. Atterbury and Paul McWilliams, for appellant.
    Lase & Cooper and Hill & Bullingtoh, for appellees.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

On January 20, 1896, in her lifetime, Susan Bowles recovered a judgment against Ida Seymour, one of the appellants, for $1,179.37. Susan Bowles in her lifetime, on August 1, 1896, became indebted to one Rebecca Culp in the sum of $2,000, for which she gave her two notes drawing seven per cent, interest, and Susan Bowles at that time claiming to have an interest in the fee to real estate sought now to be reached by the creditors’ bill filed in this cause made and executed a mortgage on this real estate to Rebecca Culp to secure the payment of these two notes for $1,000 each. These two notes were assigned to B. F. Culp by Bebecca Culp on the day they bear date. Some question having been made as to the title which Susan Bowles had in the real estate in question, she, for the purpose of better securing the payment of the $2,000 to B. F. Culp, assignee of the notes, assigned to him as additional security therefor the judgment recovered January 20, 1896, against Ida Seymour for $1,179.37. The Supreme Court determined that Susan Bowles held but a life estate in the real estate which she had mortgaged to Bebecca Culp. [172 Ill. 521.] On February 9,1900, Susan Bowles made and executed to B. F. Culp another note for $150, drawing seven per cent, interest, and on February 24, 1902, executed to him another note for $50, drawing interest at seven per cent.

Ida Seymour, against whom Susan Bowles recovered the judgment, at the time of the recovery of the judgment had an interest in the fee to the lands in question and on February 11, 1903, more than seven years after the recovery of the judgment of Susan Bowles, and after the lien of the judgment had expired, with her husband, James B. Seymour, conveyed her interest in these lands by quitclaim deed to William L. Seymour, a brother of her husband, for the recited consideration of one dollar. On February 25th following, William L. Seymour quitclaimed the same lands to James B. Seymour, the husband of Ida Seymour, with a stated consideration of one dollar; these deeds were executed for the purpose of transferring the title of Ida Seymour to her husband. On April 6,1903, the judgment in favor of Susan Bowles against Ida Seymour was revived. On September 5th following, James B. Seymour and wife quitclaimed these lands back to William L. Seymour for a consideration of $4,000, and on September 10th, following, William L. Seymour and wife executed a mortgage thereon to James B. Seymour to secure this $4,000. These conveyanees and transactions were all made without the payment of any money between the parties. In April, 1904, the notes executed by Susan Bowles to B. F. Culp were still unpaid, and Susan Bowles assigned to B. F. Culp her life estate in the premises with the power to collect rents and profits and apply the same on the notes which he held against her. He collected part of these rents and credited them on the notes. Susan Bowles died March 6, 1906, and appellant, B. F. Bowles, was made executor of her last will and testament. On January 20, 1908, B. F. Culp assigned and transferred to James it. Seymour, the husband of Ida Seymour, the four notes executed by Susan Bowles.

The bill in this ease was filed March 25, 1908. It alleges that the conveyances between ■ Ida Seymour, James R. Seymour and William L. Seymour were fraudulent and void, and should be set aside for the purpose of permitting the collection of the judgment secured by Susan Bowles against Ida Seymour. The chancellor held the conveyances fraudulent and void as against this judgment and found that at the date of the decree rendered there was $2,139.63 due to the complainant as executor of Susan Bowles on this judgment. The decree also found that on the two notes for $1,000 each, made by Susan Bowles to Rebecca Culp and held by James R. Seymour, there was a balance due of $1,325.03, and decreed that after allowing these sums to James R. Seymour, the appellant as executor of the last will and testament of Susan Bowles was entitled to receive the balance. By that decree the court refused to allow James R. Seymour to offset the amount due upon the two notes of $150 and $50.

After the assignment to B. F. Culp of the life interest of Susan Bowles in the premises in question, Culp rented this land, and at the time he assigned these four notes to James R. Seymour one instalment of rent due for the use of these premises by the tenant, amounting to $280, was not then paid. Although this amount had not been paid to Culp by the tenant, he, upon demand of Seymour, credited the note with this amount. The court by its decree did not allow this credit.

This appeal is prosecuted by the executor of the last will and testament of Susan Bowles from that decree, and insists that the court erred in allowing James B. Seymour any credit for the notes held by him against the judgment recovered by Susan Bowles in her lifetime.

At the time of the filing of the bill in this cause the judgment recovered by Susan Bowles was then held by James B. Seymour as collateral security to secure the notes which he. had obtained from B. F. Culp by assignment. The bill filed by complainant to set aside the conveyances and subject the lands in question to the payment of the judgment recovered by Susan Bowles, and which was held by James B. Seymour as collateral, does not contain in any averment offering to pay to James B. Seymour whatever sum, if any, might be due him by reason thereof; neither does the bill aver any tender of the amount due on these notes.

Appellees insist that while the judgment was pledged as collateral and the indebtedness for which it was so pledged unpaid, the judgment was not an asset belonging to the estate of Susan Bowles, and entered a motion in the trial court asking the court to restrain further prosecution of that suit. This motion was overruled and it is insisted that the court erred in overruling this motion and in permitting the prosecution of the suit.

Appellees also insist that the court erred in finding a decree in favor of the complainant, and in decreeing that defendants or any of them should pay any amount upon said judgment; also insisting that the court erred in refusing to allow James B. Seymour to offset against this judgment the $150 and the $50 notes assigned by B. F. Culp to him. Appellees have assigned cross-errors covering these questions.

This being a creditors’ bill by complainant to subject these lands to the payment of a debt due from Ida Seymour, it was incumbent upon complainant to show that the conveyances were fraudulent and made with the intention to hinder and delay the collection of the. judgment in favor of Susan Bowles. For the purpose of establishing this proof, complainant placed James B. Seymour upon the stand for the purpose of showing there was no consideration for these conveyances, but on cross-examination he testified that the conveyance from his wife to him was made to repay money advanced by him for her musical education, under a promise to repay him, that he had expended $2,500 in this behalf, and that the conveyance of this property was made to reimburse him therefor. Complainant having placed Mr. Seymour upon the stand to prove no consideration, opened for the cross-examination the question as to what consideration there was, if any, and these matters were properly permitted to be brought out upon cross-examination of the witness. But it is evident that the court who heard this testimony and saw the witness on the stand did not give much credence to it, for he disregarded it, and under the rule that where a chancellor has heard the evidence and made his finding regarding the same, it should not be lightly disturbed by this court unless this court can say that the finding is clearly and manifestly against the evidence; we are not so convinced and we are not inclined to disturb his finding that the conveyances were fraudulent as against this judgment. While we are aware that ordinarily when property is pledged as collateral security for a debt the pledgor has no interest in the property until after the payment of the indebtedness for which it is so pledged as collateral, and in an action to recover it before the debt is paid it is ordinarily necessary to either aver a tender or an offer to pay, a court of chancery is not required to arbitrarily so hold but in the exercise of its equitable powers may determine what the rights of the parties are and protect them in its decree.

We are of the opinion that the court properly held that the conveyances were fraudulent as against any sum which then remained due on this judgment, but a party seeking the aid of a court of equity must be required to do equity and the chancellor properly granted to James B. Seymour the right to have the two $1,000 notes, together with the interest due thereon, offset against this judgment and there is no error in the decree in that regard. Appellant has not been injured by the decree rendered, and as to him it should be affirmed. But upon the question of the cross-errors assigned by appellees as herein before stated, it is the general rule that in property or assets pledged as collateral security to another, the pledgor has no interest therein, and no right to bring any action thereon, until the indebtedness for which it is pledged is paid, this rule is not so iron clad and imperative that a court of chancery will not determine and adjust the rights of parties in the property pledged.

The record discloses that Mrs. Bowles agreed that this judgment should be held as collateral security not only for the two $1,000 notes, but also for the $150 and the $50 note, and it is of no concern either to her or her estate what James B. Seymour paid to Culp for the transfer of these notes to him. He is entitled to offset as against the judgment, the entire amount of these notes, together with all interest due thereon.

The chancellor erred in not permitting James B. Seymour to offset the $150 and the $50 notes as against this judgment. The executor of Mrs. Bowles could obtain no greater interest in this judgment than she had at the time of her death, he stands in her place, he has whatever rights she had and no more.

We are of the opinion that the decree of the trial court is proper in all respects with the exception that James B. Seymour should also have been given credit as against this judgment for the $150 and the $50 notes, together with the interest due thereon; and for the error of the chancellor in not allowing these credits the decree will be reversed upon the cross-errors, and remanded with directions to enter a decree allowing James E. Seymour credit for the four notes, together with interest thereon. Decree affirmed in part and reversed in part and remanded with directions.

Affirmed in part, reversed in part and remanded with directions.


text:
    Flora Oliver, Appellant, v. The First National Bank of Mt. Olive, Appellee.
    (Not to be reported in full.)
    Appeal from the County Court of Macoupin county; the Hon. Truman A. Skell, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 16, 1913.
    Rehearing denied December 3, 1913.
    Statement of the Case.
    Action originally commenced by the First National Bank of Mt. Olive against Max Lange in attachment for an alleged indebtedness on two promissory notes. The attachment writ was levied on a certificate of stock and one Flora Oliver filed the statutory notice upon the sheriff that she claimed to be the owner of the certificate. On a trial of right of property in the County Court a judgment was rendered finding that claimant was not the owner of the certificate of stock. From such judgment, claimant appeals.
    A. A. Lowry and Victor Hemphill, for appellant; Schneider & Schneider, of counsel.
    L. M. Harlan and Peebles and Peebles, for appellee.

      Abstract of the Decision.
    Appeal and error, § 528*—when propositions of law or fact essential to preserve questions for review. On appeal from a judgment rendered by the trial court without a jury there is no question preserved for the court of review where no propositions of law or fact have been submitted to the trial court.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    John Keller, Appellee, v. Chicago, Wilmington and Vermilion Coal Company, Appellant.
    1. Mines and minerals, § 153

      —when defendant entitled to contradict evidence introduced by plaintiff without objection. In an action against a mining company for injuries sustained by plaintiff while employed as a motorman on a haulage motor used for moving cars in defendant’s mine, the declaration alleging that the injury resulted from a derailment on account of the defective condition of the tracks, held that where plaintiff is permitted, without objection, to show that a tie at or near the place of the accident was removed and replaced with a new one after the time of the injury, a refusal by the court to permit defendant to show under what circumstances the tie was removed is error.
    2. Mines and minerals, § 182

      —questions for jury. In an action for personal injuries sustained by plaintiff by reason of the derailment of a car in a mine, alleged to have been caused by defective tracks, whether the derailment was caused by the defective condition of the track and what caused the derailment,. held to be questions for the jury, where the evidence is conflicting.
    3. Mines and minerals, § 192

      —when instruction ignoring question whether injury was caused by fellow-servant erroneous. In an action for personal injuries in a mine, based on a common law count in the declaration, the giving of an instruction directing a verdict for plaintiff upon the finding of the circumstances recited in the instruction without requiring the jury to determine whether the accident was caused by the negligence of a fellow-servant, held error.

      4. Instructions, § 131

      —when erroneous for ignoring essential elements. An instruction which directs a verdict for plaintiff must include all the elements necessary to be found by the jury.
    5. Damages, § 115

      —when verdict for personal injuries excessive. A verdict for plaintiff for $3,400 for injury to his limb not such as will be of any serious damage, held excessive, the expense for a physician and otherwise amounting to $400, his earning capacity at the time of the injury being $2.92% per day, and since the injury has been earning a greater sum.
    Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    Brown & Hay and John T. Creighton, for appellant; Mastin & Sherlock, of counsel.
    James H. Murphy, for appellee; Edward C. Knotts, of counsel.

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

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action against appellant for an injury to appellee alleged to have been caused to him by reason of the. negligence of the appellant Company by whom he was employed as a motorman on a haulage motor used in the mine of appellant Company for the movement of its cars. The trial below resulted in a judgment for $3,400.

Appellee filed a declaration with five counts; the third and fourth counts having been withdrawn from the jury by the trial court, the cause was tried upon the first, second and fifth counts.

The first count charges appellant with being the owner and operator of a mine in Macoupin county; that appellee’s duties required him to haul loaded cars from a certain switch in the mine to the bottom of the shaft, and to return empty cars from the shaft to the switch where they were distributed throughout the mine, these cars were hauled over and upon a track built for this purpose in the entry where appellee was required to work; that it was the duty of the appellant Company to keep and maintain this track and switch in a reasonably safe condition for the performance of the work required of appellee, but that appellant, disregarding its duty, permitted the ties to become rotten and worn at and near the point where the switch connected with the main track in this entry at a place known as the parting, that by reason thereof the spikes became loose and were insufficient to hold the rails, and that by reason of this negligence the motor which appellee was operating was derailed, and by reason of which he was injured.

The second and fifth counts charge wilful violation of the statute regarding mines and miners.

The second count averring the old and rotten condition of the ties, loose spikes, etc., alleging that this constituted a dangerous condition which should have been discovered by the defendant’s mine examiner, but that the mine examiner failed to visit, inspect and observe the mine and inscribe the month and day of his visit, and to mark by conspicuous marks the dangerous place, failed to report his findings to the mine manager and to make a report thereof to be kept in a book required for that purpose, and that said condition was not discovered by the mine examiner, and while such dangerous condition existed, appellee was permitted to enter the mine for work without being under the direction of the mine manager.

The fifth count alleges that at a short distance west of the switch there was a dangerous condition in the rails of the main track by reason of their being old, defective, battered and bent and out of line, that the mine examiner wilfully failed to visit and inspect the mine and discover these conditions and to inscribe upon the- walls with chalk the month and day of his visit, failed to place conspicuous marks, failed to report to the mine manager, and failed to make the entry in the book required by the statute to be kept for that purpose, and that while these conditions existed appellee was permitted to enter the mine for work, not being under the direction of the mine manager.

No plea appears of record, but the cause went to trial, and it will be presumed that the general issue was filed.

Appellant insists upon a reversal of this cause, and assigns as reasons therefor that the evidence does not support the allegations of the declaration, that the court erred in the admission and rejection of evidence and in the giving and refusing of instructions, that the amount of damages is excessive; also for the reason that the injury was not caused by reason of wilful violation of the mine act, but by reason of the negligence of a fellow-servant.

The evidence discloses that appellee was in the employ of the appellant Company in its mine in Macoupin county; that in the prosecution of its work in this mine the cars of coal were hauled by mules from the various rooms where it was mined, and collected at a point in the main entry, and from there hauled to the main shaft by the motor operated by appellee; that after the cars were emptied they were then returned in trains to the switch by appellee, but the transferring of the cars from the main track to the switch was done by means of a flying switch, which means that the cars were started with considerable speed upon the main track by the motor, the motor then uncoupled from the train, its speed increased faster than the moving train, and after it had passed the switch stand the switch was then thrown by an operator and the train of cars permitted to pass upon the switch. It was while making one of these flying switches that the motor which appellee was operating left the track.

There is a serious conflict in the evidence as to whether or not the ties were rotten or the spikes loose at or near this switch, but the evidence does disclose that there was a bend or kink in the track at a point about six feet from the switch point. Appellee insists that the motor car left the track by reason of these conditions, while appellant insists that the kink in the track was not sufficient to have caused any derailment, and that the derailment of the motor car occurred further down the track, near the frog of the switch, and that the accident was caused by reason of the failure of the switchman to be at his post of duty. As to where the switchman was the evidence is very conflicting, appellant insisting that he was at a point some one hundred and fifty to two hundred feet or more away from his post of duty and that after he saw the train of cars coming he attempted to reach the switch to throw it, and that he failed to properly observe the condition of the switch and wrongfully threw it so that the motor car instead of passing along the main track was thrown upon the switch track, and that the derailment of the motor did not occur at the point of the switch or near it, but that the motor was derailed at or near the guard rail near the frog in the switch; just where it was actually derailed the evidence is very conflicting. The motor came to a stop at a point almost directly over the frog and between the guard rails, with wheels off the track on either side of the frog. The train of cars which was following the motor car remained upon the main track instead of passing upon the siding, and that the foremost car of the train hit the motor at the point where it was standing throwing appellee from his seat and injuring him. Appellant insists that the fact that the motor car took the siding and did not continue on the main track and that the train of cars took the main track and did not go upon the siding is conclusive proof that the accident was caused by the failure of the switch operator to properly tend the switch. Where the evidence is so conflicting and contradictory it is for a jury to pass upon the question as to how or in what manner the accident was caused; and the case was properly submitted to the jury by the trial court for the purpose of determining the questions of fact from the disputed evidence.

The evidence is also very conflicting as to whether the mine examiner had performed his duties as required by the statute and whether or not the accident was occasioned by reason of this failure to perform the duties required of him; this evidence presents a question of fact that should be determined by a jury. From the condition of the conflicting evidence in this record we do not deem it proper for this court to, at this time, make any finding of facts, as it is necessary to reverse this judgment upon the ruling of the court in regard to the admission of evidence and upon the instructions given.

The court permitted appellee to show that a tie at or near the place where appellee insists the injury occurred and the condition of which appellee insists was the cause of the injury was removed by appellant Company after the time of the injury and replaced by a new one, and permitted appellee to show by witnesses that this was done upon the order of Mr. Woods, the superintendnt of the defendant Company. Appellant concedes that this proof was made without objections. After this evidence was in the record, appellant offered to show that the tie was not removed either upon the direction or upon any order given by Mr. Woods, the superintendent, and to show that the tie was removed by reason of false statements and assertions made to the workmen who removed the tie. While the evidence that the tie was removed or the track repaired would not have been proper if objected to by appellant, although the evidence was admitted without objection, after appellee produced this evidence appellant should have been permitted to have shown that the superintendent gave no order or direction regarding the removal thereof, and to have shown how and under-what circumstances the tie was so removed; and we think the court erred in refusing to admit this evidence, as it was proper for the purpose of contradicting and disputing evidence offered on behalf of appellee, which in all probability affected the finding of the jury.

The court gave to the jury on behalf of appellee the following instruction:

“The court instructs the jury that as to the first count of the declaration, that if you believe from the preponderance of the evidence the defendant is guilty of the negligence charged in said count and that such negligence caused plaintiff’s injury, as alleged in the first count, and that at and before the time plaintiff was so injured he was in the exercise of ordinary care for his own safety and that he did not know of the peril by which he was injured and could not have discovered the same by the exercise of ordinary care, then as to the first count you should find the defendant guilty.”

The instruction directed a verdict for the plaintiff upon the finding of the circumstances recited in the instruction. The first count of the declaration was a common law count, and the question as to whether or not the injury was caused by reason of the’ negligent act of the fellow-servant in this record, it was error for the court to give the jury this instruction which directed a verdict without requiring it to determine that the accident was not caused by reason of the negligence of the fellow-servant before a recovery could be had. The omission of this question from the instruction and the failure to require the jury to find thereon before returning a verdict for appellee was error. The rule is familiar that where an instruction directs a verdict for the plaintiff the instruction must include all the elements necessary to be found by the jury. Chicago Suburban W. & L. Co. v. Hyslop, 227 Ill. 308; Chicago Consol. Traction Co. v. Schritter, 222 Ill. 364.

We do not find that the court committed any other serious error prejudicial to the appellant.

Upon the question of the judgment being excessive, the record discloses that appellee at the time of the injury was earning $2.92% per day; that his expense for a physician and otherwise amounted to about $400; that he has some injury to his limb, but not such as will be of any serious damage; that since the injury occurred he has been able to work and received $3.24 per day. For his suffering and loss of time which he has sustained by reason of the injury and for any suffering that he may have in the' future he may be entitled to recover, hut under the evidence in this record we are compelled to hold that the judgment is excessive.

For the reasons hereinbefore stated, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    L. O. Foster, Appellee, v. Walker Smith, Appellant.
    1. Sales, § 283

      —questions for jury. In an action for breach of warranty in the sale of a team of horses, the questions whether a warranty was made, or if made whether the buyer relied upon the warranty in making the purchase, or relied on his own test of the horses, are for the jury.
    2. Sales, § 352

      —when buyer not entitled to recover money paid for breach of warranty. In an action for the breach of a warranty of a team of horses and for a return of the purchase price, where the horses were purchased as a team, and no specific price paid for either horse, the buyer being unable to return the team by reason of the death of one of the horses cannot recover the purchase price paid, but must recover if at all on the breach of the warranty, if one was made and proved.
    3. Sales, § 402

      —when instruction as to measure of damages for breach of warranty erroneous. Instruction as to measure of damages in an action for breach of a warranty in the sale of a team of horses, held erroneous.
    4. Sales, § 392

      —when seller's ignorance does not defeat recovery for breach of warranty. In an action for the breach of warranty of the soundness of a team of horses, the seller cannot defeat recovery for breach of warrant by showing that he did not know the condition of the horses at the time of the warranty.

      5. Instructions, § 88

      —preponderance of the evidence. Instruction as to the manner of deiermining wherein the preponderance of the evidence lies, held misleading.
    6. Appeal and error, § 1561

      —when refusal of requested instruction harmless. Refusal of requested instruction fully covered by other instructions given is not error.
    7. Appeal and error, § 1833

      —when special pleas filed after remandment of cause demurrable. After reversal by the Appellate Court of a former judgment and the reinstating of the cause in the trial court, special pleas filed by defendant setting up the judgment of Appellate Court and presenting as an issue of fact what was determined by such court on its former hearing, held demurrable.
    8. Appeal and error, § 1514

      —when improper remarles of counsel prejudicial. Inflammatory and improper statements made by counsel in his argument to the jury, among them being a statement that he did not care what the Appellate Court said in its opinion on a prior appeal in the cause, held prejudicial.
    Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochran, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    B. F. Shipley and Herrick & Herrick, for appellant.
    Stone & Gray, for appellee.

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

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This cause was previously in this court (163 Ill. App. 613), and the former judgment recovered was reversed and the cause remanded. We have no desire to change in any particular what was then said by this court concerning the measure of damages in a case of this kind. Upon the former hearing the only question this court determined was the proper measure of damages, and that appellee could not recover the purchase price of the horse that died.

After purchasing the team In question appellee had it in his possession for several weeks, during that time one of the horses died, he then returned the other horse to appellant and demanded the return of the purchase price. The death of the horse was not caused by reason of any ailment existing at the time of the purchase.

The evidence on the second trial is that appellant sold to appellee a team of horses; appellee insists that the team was warranted to be sound, but notwithstanding this warranty, appellee made some tests for the purpose of ascertaining for himself their condition before taking them, and the question as to whether the warranty was made and whether, if one was made, appellee relied upon the warranty in making the purchase or relied upon his own test of the horses were both questions of fact for the determination of the jury from all the evidence in the case under proper instructions by the court. Upon the former hearing this court did not hold, as contended for by appellant, that no recovery could be had for a breach of warranty of the horse that died. The holding of this court at that time was that no recovery could be had for the return of the purchase price of that horse. These horses were purchased as a team, and no specific price was paid for either horse, and appellant being unable to return the team by reason of the death of one of the horses, he could not recover the purchase price paid, but must recover, if at all, on a breach of warranty if one was made and proved.

Instruction number four given on behalf of appellee does not follow the rule held by this court upon the former hearing as to the true measure of damages in this case, but instructs the jury that if they find for the plaintiff, then they shall arrive at the amount of his damages in a manner contrary to the holding of this court upon the former hearing. This instruction as given is not a correct statement of the law as to the measure of damages, and it was error to give it. It is contended by appellant that if the horses were unsound, this fact was unknown to him, and that he should have been permitted to show this fact. If appellant warranted these horses as contended for by appellee, and guaranteed them to be sound, then it is immaterial whether appellant knew that the horses were unsound or not, and he cannot be permitted to defeat a recovery for a breach of warranty by showing that he did not know the condition of the horses at the time of the warranty.

The eighth instruction given on behalf of appellee should not have been given, as it could only tend to mislead the jury and is in direct conflict with instruction number nine given on behalf of appellant, which was properly given.

Instruction number twelve for appellee is also erroneous for the reason stated herein concerning instruction number four regarding the question of the measure of damages.

The court did not err in refusing instructions number twenty-one and twenty-two requested by appellant for the reason that the questions therein presented were fully covered by the other instructions given for appellant.

After the reversal of the former judgment and the reinstating of the cause in the trial court, appellant filed special pleas setting up the judgment of this court and thus presenting as an issue of fact what was determined by this court in its former hearing. The court properly sustained a demurrer to these pleas.

The first instruction given to the jury on behalf of appellee as to the manner of determining wherein the preponderance of the evidence lies is misleading. The correct rule laid down as to the preponderance of the evidence will be found in Elgin, J. & E. Ry. Co. v. Lawlor, 229 Ill. 621.

It is insisted by appellant that counsel for appellee in his argument to the jury not only went entirely outside of the record but used many inflammatory and improper statements to the jury, and among these statements counsel repeated the second time that he did not care what the Appellate Court said in its opinion. While the remarks of counsel throughout the argument were subject to severe criticism and should not have been permitted by the court, we would be inclined to reverse this case upon the remarks of counsel alone, if we were not compelled to reverse it by reason of errors in the record; we will not criticise his actions further than to say that he should be mare careful in the future, as this court will not permit a verdict to stand where it can see that improper and undue remarks made by counsel have influenced the jury in arriving at their verdict.

By reason of the error of the trial court in giving instruction number four, eight and twelve, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Philbriok

text:
    Sarah E. Franklin, Appellee, v. The Continental Casualty Company (Incorporated), Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 16, 1913.
    Rehearing denied November 5, 1913.
    Statement of the Case.
    Action by Sarah E. Franklin against The Continental Casualty Company, incorporated, to recover upon an accident policy issued by defendant to plaintiff’s husband in his lifetime. From a judgment in favor of plaintiff for $531.37, defendant appeals’.
    Appellant insists it is not liable, claiming that representations in the application for insurance were made warranties, that insured misrepresented his age and that insured met death by natural causes, under a policy payable only on condition that death be caused by accident, violent and external means, without the intervention, directly or indirectly, of any other cause, and contends that the court erred in the admission and rejection of evidence and the giving and refusing of instructions.
    Abstract of the Decision.
    1. Insurance, § 697

      —when instruction limiting a coroner’s verdict proper. In an action for accident insurance on a policy payable only for accidental death caused by external and violent means without the intervention, directly or indirectly of any other cause, where a coroner’s verdict is admitted in evidence stating that the insured “came to his death by pulmonary hemorrhage, said hemorrhage being caused by natural causes,” an instruction eliminating from the consideration of the jury that part of the coroner’s verdict finding that the pulmonary hemorrhage was produced by natural causes, held proper.
    2. Appeal and error, § 1455

      —when overruling demurrer to replication harmless. Where a special plea filed by the insurer sets up that the insured misrepresented his age in the application for insurance and that such representation was made a warranty under the terms of the policy, and a replication thereto is filed denying that the age was material or in any way increased the risk, action of court in overruling defendant’s demurrer to the replication held harmless, the cause being tried with the issue involved and there being no evidence in the record in support of the plea.
    3. Insurance, § 686

      —when evidence sufficient to require question as to cause of death to he submitted to jury. In an action to recover accident insurance, evidence offered by plaintiff showing that the insured fell, striking his chest upon a post and that within a short time thereafter blood began to flow from his mouth and nostrils as a result of hemorrhage of the lungs, held to show such a condition as to require the court to submit to the jury the question as to how and in what manner the insured met his death, and refusal of court to direct a verdict for defendant held not error.

      Ralph Dempsey and W. R. Curran, for appellant; M. P. Cornelius, of counsel.
    J. P. St. Cerny and W. B. Cooney, for appellee.

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

   Mr. Presiding Justice Philbriok

delivered the opinion of the court.

4. Insurance, § 613 —burden of proving cause of death. In an action for accident insurance, the burden of proof is on the plaintiff to show by a preponderance of all the evidence in the case that deceased came to his death as averred in the declaration, but where the plaintiff by its evidence makes a prima facie case the burden is on the defendant to rebut the same in accordance with his pleas.

5. Insurance, § 697 —when instruction as to burden of proving cause of death not erroneous. In an action for accident insurance, instructions as to the burden of proving cause of death held not to place the burden on defendant to prove by a preponderance of the evidence that deceased came to his death by reason of natural causes, in order to defeat recovery.


text:
    Thomas E. Wing, Appellee, v. G. J. Little, Appellant.
    1. Gaming, § 39

      —when special plea and cross-bill in action to subject property used for gambling to payment of judgment recovered for money lost demurrable. On bill filed against the owner of a gambling house to subject the premises to the payment of a judgment recovered by complainant against a third person for money lost at gambling on the premises, held that the defendant could make a complete and ample defense against the judgment upon his answer, and that the action of the court in sustaining a demurrer to a special plea and a cross-bill alleging that the judgment was obtained by fraud and collusion between' the complainant and such third party, held proper.
    2. Gaming, § 43

      —when evidence sufficient to sustain decree subjecting gambling premises to payment of a judgment recovered for money lost thereon. On bill filed against the owner of a premises to subject the premises to the payment of a judgment recovered by complainant against a third party for money lost at gambling on the premises, the bill alleging that the loss at gaming occurred on the premises belonging to defendant, and that defendant knowingly permitted gambling to be conducted on the premises, held that to entitle the complainant to the relief prayed it was necessary for him to prove the allegations of the bill, and the findings of a decree awarding the relief prayed held sustained by the evidence.
    3. Judgment, § 394

      —when conclusive against collateral attach. On bill filed against the owner of a gambling house to subject the premises to the payment of a judgment formerly recovered by complainant against a third party for money lost at.gambling on the premises, the judgment having been rendered by a court of competent jurisdiction and not having been appealed from, set aside or vacated, is conclusive and cannot be collaterally attacked by the defendant.
    4. Equity, § 379

      —conclusiveness of verdict of jury when submission is discretionary. It is a familiar rule in chancery that the chancellor may present an issue of fact to a jury for its determination, but unless such is required by law to be submitted to a jury the finding of the jury is merely directory and is not conclusive, and the chancellor upon final hearing may follow that verdict or entirely disregard it.
    5. Appeal and error, § 1528

      —when error in instructions in a chancery case will not reverse. Upon the submission to the jury of an issue in a chancery case it cannot be assigned as error that the chancellor erred in its instructions to the jury, when the submission is discretionary with the chancellor.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeiqhton, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 16, 1913.

      Certiorari granted by Supreme Court.
    John G. Friedmeyer and Albert Salzenstein, for appellant.
    Hardin W. Masters, Gillespie & Fitzgerald and Thomas D. Masters, for appellee.

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

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Appellee, Wing, recovered a judgment in the Circuit Court of Sangamon county against one Adams for three thousand dollars for money alleged to have been lost by Wing in a game of chance in a gambling house kept by Adams in the city of Springfield. Execution was issued on this judgment and returned nulla bona. Appellee then filed his bill in chancery for the purpose of subjecting the premises owned by appellant, G. J. Little, to the payment of the judgment, and averring in this bill that the loss was had at gaming in the premises located at 121 South Fourth street in the city of Springfield and owned by appellant, and that appellant Little knew that Adams was conducting a gaming house therein and knowingly permitted gambling to be conducted in his property.

To the amended bill appellant filed a special plea of nul tiel record, also a plea that the judgment recovered by appellee Wing against said Adams was obtained by fraud and collusion between Adams and complainant, and that said Wing did not lose three thousand dollars or any other sum in gambling rooms kept by Adams in the building of Little as set forth in the bill of complaint. Issue was joined upon the plea of nul tiel record, and a demurrer filed to the second amended special plea. The demurrer to this plea was sustained, appellant filed his answer and replication was filed thereto. Appellant filed a cross-bill alleging that said judgment was obtained by fraud and collusion between Wing and Adams and asked to have said judgment set aside and vacated; a demurrer was sustained to the cross-bill.

Upon the hearing appellant demanded that a jury be impaneled and that certain questions presented to the court be submitted to the jury for determination. The court refused to submit these propositions as requested by appellant Little but did submit to the jury the following question as an issue of fact to be tried by the jury:

“Did the defendant G-. J. Little at any time during the month of November, 1908 or subsequent thereto and prior to the 26th of February, 1909, knowingly permit the premises described in the amended bill of complaint to be used or occupied as and for a place where games of chance for money and other valuable things were played?”

This question was answered in the affirmative by the jury. The court refused to set aside the verdict of the jury, and upon final hearing found the issues for the complainant and entered a decree in accordance with the prayer of the bill, directed that execution issue against the property in question, and that the same be sold to satisfy the judgment.

Appellant insists that this decree is erroneous and should be reversed and urges that the court erred in sustaining the demurrer to its special plea, in sustaining the demurrer to the cross-bill, in the admission and rejection of evidence and the instructions given to the jury upon the question of fact submitted to it, and that the decree is not supported by the evidence.

Upon the contention that the court erred in sustaining the demurrer to the special plea alleging that the judgment was obtained by fraud and collusion between Wing and Adams, the issue presented by this plea was a collateral attack upon the judgment rendered by the Circuit Court of Sangamon county in favor of Wing against Adams. This judgment as between Wing and Adams in no manner affected the property of appellant, and it was of no concern to him whether the judgment was obtained by fraud and collusion as he was in no manner bound thereby; it was of no concern to him that Wing had obtained the judgment against Adams, as appellant Little could not in any way be injured or affected by that judgment except in a proceeding to subject his property to a sale for its satisfaction ; and the question as to whether or not the loss for which this judgment was recovered occurred in the premises owned by appellant, and that he knew gambling was carried on therein by Adams, is presented for the first time in this suit. Before a recovery could be had as against appellant it was necessary that appellee prove that the money was lost by gaming in a gaming house kept or conducted by Adams and that appellant knew and permitted gambling to be conducted therein by Adams. It is a familiar rule in chancery that the chancellor may present an issue of fact to a jury for its. determination, but unless such is required to be submitted by law to a jury, the finding of the jury is merely directory and is not conclusive, and the chancellor upon final hearing may follow that verdict or entirely disregard it. Upon the submitting of that question to the jury it cannot be assigned as error that the chancellor erred in its instruction to the jury, as the submission of that question was discretionary with the chancellor.

Upon the contention that the court erred in sustaining the demurrer to the cross-bill, we find upon examination of this cross-bill that the object and prayer of the bill was to set aside the judgment as between Wing and Adams, appellant was not a party to that judgment and he was not entitled upon a cross-bill to have the judgment in favor of Wing and against Adams set aside, he could make a complete and ample defense as against that judgment upon the answer, and it could be of no concern to him that Wing had obtained the judgment against Adams. The judgment in favor of Wing against Adams having been rendered by a court of competent jurisdiction and not having been appealed from, set aside or vacated, is conclusive as between Wing and Adams, as to the right of Wing to recover against Adams.

The property of appellant Little cannot be subjected to the payment of this judgment except on proof of the allegations in complainant’s bill that the money was lost at gaming in a gaming house kept or maintained by Adams in the building in question owned by Little, and upon the final hearing in the trial court the chancellor as well as the jury found that appellant Little knowingly permitted gambling to be carried on in the building in question owned by him, and the chancellor found by his decree that these gambling rooms were conducted by Adams and that appellee lost his money therein.

We have carefully examined this record, and we are satisfied that the proof fully sustains the allegations of the bill and the findings made by the chancellor in his decree, and that the decree rendered is correct and should not be disturbed. It is, therefore, affirmed.

Affirmed,