text:
    Edward Elwell, Trustee, et al., Appellees, v. Thomas P. Hicks, Appellant.
    Gen. No. 17,602.
    1. Mortgages—when mortgagor who has conveyed is liable on foreclosure for deficiency. Where defendant purchases real estate and gives notes secured hy a trust deed in part payment and after-wards conveys a two-thirds interest to two grantees who each agree to assume and pay one-third of the encumbrance a deficiency decree is properly entered against defendant if the real estate when sold under foreclosure does not satisfy the indebtedness.
    2. Courts—when appellate court is bound to follow supreme court. The Appellate Court is bound to follow the decision of the Illinois Supreme Court in matters of local law though inconsistent with the U. S. Supreme Court.
    3. Mortgages—principal and surety. While as between the mortgagor and the grantee of the mortgaged property who assumes the mortgage debt, the latter becomes the principal debtor and the former the surety, this is only true between the mortgagor and grantee and the mortgagee may treat them both as principal debtors and have a personal decree against both unless he has agreed to release the mortgagor and look solely to grantee for payment.
    4. Novation—where mortgagor conveys mortgaged property. Where a mortgagor conveys mortgaged property there is no novation unless there is something to show the mortgagee has released the mortgagor and agreed to look solely to the purchaser for payment of the mortgage debt.
    5. Evidence—testimony of grantees of mortgagor where administratrix is complainant. In a foreclosure case where defendant, the mortgagor, had conveyed a two-thirds interest in the mortgaged property, the grantees are incompetent witnesses to testify that the mortgagee who is deceased agreed to look solely to them for payment of the mortgage debt.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.
    Alfred E. Barr, for appellant.
    Caswell & Healy, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

In March, 1894, Mark K. Collins sold real estate in Chicago to Thomas P. Hicks and took notes for a portion (amounting to $3,300) of the purchase money, secured by a trust deed mortgage from said Thomas P. Hicks to one Edward F. Elwell as trustee.

In August, 1903, there being a default in the payment of the principal and interest of the notes, Mary K. Collins, the holder of the notes, and Edward F. Elwell as trustee, filed their bill in the circuit court to foreclose the trust deed, making Thomas P. Hicks, Stephen P. Hicks and Frederick S. Baird and their wives defendants, as holders of the equity of redemption in possession of said premises.

Although the argument of appellant in this case asserts that the bill was filed to foreclose the said trust deed “for the non-payment of interest,” this is placing a construction on the somewhat unartificial language of the bill which it does not properly bear. There is nothing anywhere in this record to show any extension of the principal notes or any of them beyond the time of the filing of this bill, and although the bill unnecessarily alleged that Mary K. Collins had elected to declare and had declared due the whole of said principal sum described in said notes, the bill itself, without this statement, would show that according to the tenor of the notes there was $3,300 and certain interest thereon dne. Nor is there any contention that this principal amount, or any part thereof, has ever been paid. But the attempt to enforce the apparently simple security furnished by this trust deed for a sum of-money beyond all question due has been a laborious and prolonged affair, which has reached its final stage only after almost ten years of litigation.

The opportunity for this prolongation of what might have been expected to be a simple matter arose from the following situation: After purchasing the property and giving the notes and trust deed, Thomas P. Hicks, according to the allegations of the bill, at once conveyed a one-third interest in it to • Stephen P. Hicks and one-third to Frederick S. Baird, who each “assumed and agreed to pay one-third of said thirty-three hundred dollars encumbrance.”

In a joint answer to this bill filed by Thomas P. Hicks and wife, Stephen P. Hicks and wife and Frederick S. Baird and wife, they denied that Thomas P. Hicks had conveyed to Stephen P. Hicks or Frederick S. Baird any right, title or interest in or to said premises, or that either of them had ever assumed any portion of said incumbrance. Said conveyances and assumptions were proved, however, on the hearing before the master by the deeds themselves. The answer, however, set up as a substantive defense that in July, 1903, Mary K. Collins agreed with the defendants to exchange the three $1,100 notes for $33 in cash and a quitclaim deed of the premises in question, and this agreement the defendants were ready to carry out. Contemporaneously the defendants filed a cross-bill, setting up this alleged agreement, representing that since filing her bill Mary K. Collins had departed this life and that Amy E. Hatch had been appointed administratrix with the will annexed of her estate, and praying that the agreement be carried out, and the said Amy E. Hatch, administratrix, be ordered to turn over the notes canceled to the defendants, and Elwell as trustee be ordered to release the trust deed. The cross-defendants, Hatch and Elwell, answered and denied all knowledge of any such agreement, but alleged that if there was any such agreement it was entirely verbal, and claimed the benefit of the Statute of Frauds.

The Circuit Court after a hearing entered a decree in June, 1905, finding there was due Hatch as administratrix $4,148.37 and interest from the date of the master’s report, and $200 as a reasonable solicitor’s fees and ..ordering a foreclosure sale in default of payment. The decree also provided that after the coming in and confirmation of the master’s report of sale, in case any deficiency should be shown in the amount due Hatch, administratrix, she should be entitled to execution against the defendants Thomas P. Hicks, Frederick g. Baird and gtephen P. Hicks, “personally liable therefor.” The cross-bill was dismissed.

From this decree the defendants Thomas P. Hicks, Stephen P. Hicks and Frederick S. Baird appealed to this court. The cause was assigned to the Branch Appellate Court which on November 23, 1906, reversed the decree and remanded the cause to the circuit court. The only point, however, decided adversely to the complainants in the opinion (Hicks v. Elwell, 129 Ill. App. 561) is the one which the judge delivering it says was the principal objection urged to the decree, namely, that following the master’s recommendations the court below, in its decree, provided for a possible deficiency decree against Stephen P. Hicks and Frederick S. Baird $390.49 in excess of what a correct computation of interest would make it. The master and circuit court were held to have erred in not giving these two defendants the benefit of a reduction of the rate of interest from May 1, 1897, up to the time of hearing. The court expressly says that the conditional provision of the decree for a deficiency was proper except as to amount. “Such decree,” it says, “may be rendered conditionally at the time of foreclosure or after sale and ascertainment of the balance due. * * * In the case at bar the decree for deficiency and for execution was entered as it properly might be at the time of foreclosure.”

On the remandment of the cause to the circuit court, however, the cause was again sent to a master and a determined effort made by the defendants to establish the defense against foreclosure alleged in the answer and cross-bill to exist by reason of the alleged agreement by Mrs. Collins in June or July, 1903, to take cash and quitclaim deeds from the defendants and cancel the notes.

The master held, and the court confirmed the holding, by overruling all objections and confirming the master’s report, that as the defendants (cross-complainants) were practically seeking a specific performance of a contract for the conveyance of real estate, the Statute of Frauds was a bar to their claim, inasmuch as the only written memorandum referring to the agreement-contended for, was insufficient to avoid said statute. This memorandum was as follows:

“July 20, 1903.
Received of F. S. Baird Abstract L. 1, Blk. 4 Gage & McKay’s Sub. B. 9, Wright & Webster Sub. of N. E. 1/4-12-39-13, from Government to June 30/92 on exchange note for deed.
Mrs. Mart K. Collins.”

The master also held that, inasmuch as Amy E. Hatch was suing and defending in the capacity of administratrix and objected to the testimony of Baird and Hicks on the ground of interest, their oral testimony was inóompetent. He therefore recommended that the cross-bill be dismissed for want of equity and a decree for foreclosure entered. The sum due was computed according to the rule laid down in the opinion of the Branch Appellate Court and amounted to $3,965.20. The circuit court, by a decree May 31, 1907, overruled all exceptions to the master’s report, confirmed the same, dismissed the cross-bill and found that there was due Amy E. Hatch, administratrix, etc., the said sum of $3,965.20 and interest thereon at the lawful rate from May 20, 1907 (the date of the master’s report), and $200 for solicitor’s fee. It ordered a foreclosure sale and directed the master, if there was a deficiency, to report it to the court.

From this decree the defendants Thomas P. Hicks, Frederick S. Baird and Stephen P. Hicks appealed to this court, and the appeal was heard in the Branch Appellate Court as cause No. 14,020 June 2, 1908. That court affirmed the decree of the circuit court, filing an opinion which is not reported. The Branch Appellate Court in it declared that the master and the court below were right in holding that in view of the fact that the real complainant in this bill was the administratrix of a deceased person, Thomas P. Hicks and Frederick S. Baird were incompetent witnesses as to the agreement concerning the cancellation of the notes, and that “the receipt signed by Mrs. Collins in evidence fell far short of proving the agreement set up in the answer and cross-bill.” From this order of affirmance the appellants in the Appellate Court appealed in turn to the Supreme Court.

The Supreme Court affirmed the Appellate Court February 19, 1909, Elwell v. Hicks, 238 Ill. 170, holding that the only questions involved related to the appellant’s rights under the cross-bill; that the receipt introduced in evidence was not such a memorandum as is required to avoid the Statute of Frauds, and that Baird and Hicks were both incompetent witnesses even if the memorandum could be supplemented by parol evidence. Of Baird it is said;

“He was at the time of the trial, as well as at the time of the alleged interview with Mrs. Collins, interested equally with Hicks and his interest was then and still is antagonistic to the interest of Mrs. Collins.”

When the order of affirmance^ from the Supreme Court had been filed in the circuit court, the foreclosure sale under the decree was made, and by the mas-tor’s report of sale and distribution it appeared that there was a deficiency still due and unpaid to the complainant Hatch, administratrix, etc., of $2,704.10.

A motion having been made for the entry of a deficiency decree against Thomas P. Hicks for the amount of said deficiency, the cause was, on motion of the solicitor for said Thomas P. Hicks, referred (January 17, 1910), to a master to take evidence and report conclusions as to the liability of the defendant for the deficiency.

Before the court and before the master, Thomas P. Hicks objected to the entry of such a decree on the ground that Mary K. Collins, subsequent to the execution of the quitclaim deeds from Thomas P. Hicks to 'Stephen P. Hicks and Frederick S. Baird, respectively, recognized the said grantees as the principal debtors each for one-third of the amount of the entire indebtedness, and that thereupon Thomas P. Hicks, the original maker of said notes, became merely a surety; that subsequently, shortly after May 1, 1897, the said Mary K. Collins agreed with Baird that the time of payment of his undivided one-third of the principal and interest on said notes should be extended for one year from that date, and that Thomas P. Hicks had no notice of said extension, and by it, inasmuch as he was merely a surety for two-thirds of the entire debt, was released from his liability as to said two-thirds.

The master’s report negatived this contention of Thomas P. Hicks on the ground that both Baird, whose deposition was offered before the master, and Thomas P. Hicks, who testified personally before him, and who were the only witnesses whose testimony was presented on the hearing, were interested and incompetent witnesses under the order of reference, and that there was no proof that the said Mrs. Collins ever treated or dealt with the said grantees or either of them as principal in such a way as to make Thomas P. Hicks merely a surety; and no competent evidence (although Baird’s deposition contained such a statement) that the time of payment was ever extended for Baird without the knowledge of the said Thomas P. Hicks.

The circuit court overruled all exceptions to the master’s report, confirmed the same and decreed that Thomas P. Hicks pay to Amy E. Hatch, administratrix, etc., the amount of said deficiency,- namely, $2,704.10, with interest thereon from the date of said master’s sale.

From this decree Thomas P. Hicks prayed and perfected the present appeal to this court, and makes here the same contention as he made before the master. We do not think it is well founded. The primary fallacy of it is the assumption, to quote from appellant’s argument, that “the relation of Thomas P. Hicks automatically changed under the Illinois law from principal to surety on the notes” when he made deeds of one-third interest each to Stephen P. Hicks and to Frederick S. Baird, respectively, of the premises bought by him from, and mortgaged to, Mary K. Collins.

On this assumption rests the whole contention of the appellant. To justify it he relies on the opinion of the Supreme Court of the United States in Union Mut. Life Ins. Co. v. Hanford, 143 U. S. 187.

It is true that in that case the Supreme Court of the United States in February, 1892, seems to say that because, under the law of Illinois, a mortgagee may sue at law a grantee who, by the terms of an absolute conveyance from the mortgagor assumes the payment of the mortgage debt, therefore “the grantee as soon as the mortgagee knows of the arrangement, becomes directly and primarily liable to the mortgagee for the debt for which the mortgagor was already liable to the latter and the relation of the grantee and the grantor towards the mortgagee as well as between themselves, is thenceforth that of principal and surety for the payment of the mortgage debt.”

But it may be remarked that the court takes occasion to note both in the opinion and statement prefixed thereto, that there was an express assent of the mortgagee to the conveyance (of the entire equity in the premises mortgaged) and the agreement to pay the mortgage debt, and that the court places its decision on the law of Illinois as it is declared by it to be, and admits it to be inconsistent with “the settled law of this” (the United States Supreme) “Court.”

But whatever the language of Mr. Justice Cray in the Hanford case, supra, may seem to indicate in the matter involved here, our Supreme Court, whose decisions we are bound to follow in a matter of local law, even if inconsistent with those of the United States Supreme Court, has left us in no doubt what the law of Illinois is on the question.

In Fish v. Glover, 154 Ill. 86, in ah opinion filed almost three years after the Supreme Court of the United States had decided Union Mut. Life Ins. Co. v. Hanford, supra, the Supreme Court of Illinois, in a case where the original mortgagor claimed as against the mortgagee the benefit of rules relating to surety-ship, because of the conveyance by him of the equity and the assumption of the indebtedness by the grantee, used this language in deciding adversely to the contention :

“It has been held, that, as between the mortgagor and the grantee of the mortgaged property who assumes the mortgage debt, the latter becomes the principal debtor, and the former the surety for the payment of the debt. * * * But this is only true as between the grantee of the mortgagor assuming the mortgage debt and the mortgagor himself. As between them, the mortgaged property becomes the primary fund. But the mortgagee may treat both as principal debtors, and may have a personal decree against both, unless he has consented to accept such grantee of the mortgagor * * * as surety merely.”

After more to the same effect the court quotes approvingly from Jones on Mortgages, secs. 741, 742a:

“There is no novation unless there be something to show that the mortgagee has released the mortgagor, and has agreed to look solely to the purchaser for payment of the mortgage debt. * * * It would be a singular doctrine, if the contract rights of the mortgagee could be changed by any arrangement between the mortgagor and his grantee, to which the mortgagee was not a party.”

Five years later, in 1899, the Supreme Court of Illinois said in Webster v. Fleming, 178 Ill. 146-157:

“The mortgagor and the grantee from the mortgagor, who assumes the payment of the incumbrances upon the property, are both liable as principal debtors to the mortgagee, unless the latter has released the mortgagor from his liability, and has agreed to look solely to the purchaser from him for payment of the mortgage debt.”

And in October, 1905, in Scholten v. Barber, 217 Ill. 148-150, the same court, treating of precisely the same question here presented, said:

“In this State the rule is, that as between the mortgagor a/nd his grantee who assumes the payment of the encumbrance, the grantee becomes principal debtor and the mortgagor becomes his surety. Dut the mortgagee is in no wise affected by the agreement to which he is not a party. He may disregard, it and bring his action against the original debtor only, or he may accept the promise made for his benefit, and, treating it as an additional remedy, bring his action against the grantee. If the agreement is accepted by the mortgagee, each party to it is an original promisor for the payment of the encumbrance, but the contract rights of the mortgagee cannot be changed by any arrangement between the mortgagor and his grantee unless the mortgagee agrees to such change.”

The law of Missouri was invoked in this case and the court points out that evidence that the law of Missouri in cases where the grantee assumes and agrees to pay an existing encumbrance is different from this Illinois rule and like that contended for by appellant herein, does not tend to prove that the law of Missouri applicable to the case at bar is different from that of Illinois because the grantee did not assume or agree to pay the encumbrance.

The italics in the quotations we have made are oí course our own. The doctrine laid down is very different from that insisted on by the appellant and attributed to the Federal Supreme Court, that an “automatic” change is worked on a mortgagor’s liability when he conveys to one who assumes the mortgage.

In the case at bar there is no evidence, even if all that Baird and Hicks testified to at any time during its progress should be held competent and relevant, that Mrs. Collins or her representatives ever consented to accept Thomas P. Hicks “as surety mérely,” nor that she “agreed to look solely” to Stephen P. Hicks and Frederick S. Baird for the whole or any part of the mortgage debt. In this application for a deficiency judgment Mrs. Collins’ representative has in effect disregarded the additional promises and brought her action against the original debtor only.

We think this so clearly disposes of the matter that it is unnecessary to discuss the incompetency of Baird and Thomas P. Hicks as witnesses. Without their testimony there cannot be made for Thomas P. Hicks even the pretext of defense against this deficiency judgment. Despite the ingenious arguments of counsel, we do not think they were competent witnesses at this final stage and in this final section of the cause, any more than they were when they were adjudged not to be by this court and the Supreme Court during its progress.

The decree of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    Clarence Herricks, Appellee, v. Chicago & Eastern Illinois Railroad Company, Appellant.
    1. Hastes and servant—common tool. A set hammer, such as used in blacksmith shops to make square angles on iron, is not a common tool but requires a skilled mechanic to keep it in reasonably safe repair and a master owes a duty to a blacksmith’s helper to keep such a hammer in such a repair.
    2. Evidence—order of introduction. In an action for injuries to plaintiffs eye, caused when a piece of a hammer split off and entered it, the action of plaintiff’s counsel in introducing the piece of the hammer in evidence after defendant rests, though he has it in court in his pocket during the trial, to prevent defendant’s witnesses from seeing or examining it during their testimony, while not ground for reversal is improper and would justify refusal to admit the piece of metal in evidence.
    3. Argument of counsel—restriction to evidence. Argument by plaintiff’s counsel, in an action for the loss of an eye, to the effect that the sight of the other eye might be lost through sympathetic nerves or otherwise is highly improper and should be condemned by the trial court where there is no evidence of such a possibility.
    4. Argument of counsel—abuse of witnesses. Abuse of a witness by plaintiff’s counsel for the sole reason that he is in the employ of the defendant and unworthy of belief, is grossly improper.

      5. Damages—when not excessive. A verdict for $1,400.00 is not excessive where the sight of one of plaintiff’s eyes was destroyed and it was necessary to remove the eye ball.
    Appeal from the Circuit court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    H. M. Steely and H. M. Steely, Jr., for appellant.
    Acton & Acton, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Plaintiff, by his next friend, August Herricks, brings this action to recover for the loss of an eye, the sight of which was destroyed by alleged negligence of the defendant in furnishing and permitting plaintiff to use and work with a tool known as a set hammer, which it is alleged had been repaired and remade by the defendant in a negligent and improper manner. The beneficiary plaintiff was a minor nineteen years old, and will be referred to hereafter as. plaintiff.

The declaration contains several counts, and alleges the head of this set hammer, by reason of its long continued use had become so battered, by hammering thereon, that the edge of the face of the hammer had curled over and formed what are known as burrs on the sides. It appears from the evidence that a set hammer is a tool used in blacksmith shops for the purpose of malting a square and perfect angle upon iron or material where the same is required to be bent or shaped for its proper use; that the set hammer is used by holding it upon the material to be formed or shaped and striking upon the head or- face with a heavier hammer. This set hammer was being used to make a perfect angle on a piece of iron which was being made into a hanger for brake beams.

The defendant had in its employ one J. J. Higgins, an expert blacksmith; plaintiff was working with him as his helper, and as such helper it became his duty to do and perform such work and services as Higgins should direct. Plaintiff had been engaged in this work for about nine months before the injury. To become a skilled blacksmith, it required three years work as a helper and then three years as an apprentice.

The formation of these burrs upon the set hammer made it necessary to repair or remake the set hammer; and the remaking or repair of this hammer was done by the blacksmith with the assistance of the plaintiff as his helper.

Plaintiff, as such helper, had had no experience or knowledge of the manner or method or work necessary to repair this hammer in a proper and safe condition. This set hammer was prepared by taking it from the handle, heating it to a red or cherry heat and then by hammering the burrs, which had formed at the edges of the face of the hammer, down so as to make the hammer smooth and of the proper size; after this was done it then became necessary, in order to render the hammer safe for use, to cut off the head far enough to remove all of the burrs which had been hammered down.

The specific negligence charged and attempted to be proved was a failure to cut the head of the hammer off sufficient to remove all of the burrs, that by reason thereof, pieces of the burrs remained upon the hammer; that these burrs were not and could not, in this manner, be welded into the hammer, so that they would not fly off when striking the face of the set hammer in using it. That when plaintiff used this set hammer after it had been repaired, and while it was being held by the blacksmith Higgins, the blows which were struck upon the hammer by the plaintiff with the heavier hammer caused a sliver or piece of metal to fly from the set hammer striking plaintiff in the eye, destroying its sight, and that it became necessary to remove the eye ball. Plaintiff recovered a judgment below for $1,400, and to reverse that judgment this appeal is prosecuted.

As a cause for reversal defendant insists that the hammer was properly and skilfully repaired; that the piece of the hammer which entered the plaintiff’s eye was not part of one of the burrs which had been hammered down but was a part of the face of the hammer which was caused to fly from the hammer by the negligence of plaintiff in striking a slanting or glancing blow upon the head of the set hammer, that the proper method of striking a set hammer was by a square blow. That the striking of the hammer with a glancing or slanting blow was contributory negligence on the part of the plaintiff; also, that the accident was one of the ordinary risks of employment assumed by plaintiff. That the set hammer was a common tool with which plaintiff was as familiar as defendant. Defendant also insists that the court erred in its rulings upon the admission and rejection of evidence, and the giving and refusing of instructions; and that counsel for plaintiff made improper remarks to the jury in his final argument.

Upon the question of the negligent repair of this set hammer, the evidence discloses two proper methods of repairing a set hammer, one being to cut off the burrs before attempting to reface the hammer, the other to heat the hammer, hammer the burrs down, and then cut the hammer off at a point which will remove all of the burrs. This hammer was repaired by and under the direction of Higgins, by hammering the burrs down and then cutting about one-fourth of an inch off from the head of the hammer, and refacing it; it is the contention of the defendant that this removed all of the burrs, or pieces that had been hammered down, while it is the contention of the plaintiff that the hammer was not cut off a sufficient length to remove all of the pieces or burrs and that it was one of the pieces which had been hammered down which flew off and destroyed plaintiff’s eye. It was a question of fact for the jury to determine whether or not the hammer was properly repaired and refaced, and by their verdict they have determined this question against the contention of the defendant and we are not prepared to say that their finding is not supported by the evidence in the record. The contention that the set hammer was a common tool and its condition and use was as well known to plaintiff as defendant and the master is not liable for damage arising from the use of a common tool cannot be sustained; the set hammer had its peculiar use and construction and required a skilled mechanic to keep it in reasonably safe condition and repair for use, and defendant must be held to have owed a duty to plaintiff to have so repaired it. Duerst v. St. Louis Stamping Co., 163 Mo. 607; Johnson v. Missouri Pac. R. Co., 96 Mo. 340; Van Hul v. Great Northern R. Co., 90 Minn. 329; Noble v. Bessemer Steamship Co., 54 L. R. A. 456, 127 Mich. 103.

The jury was also warranted in finding that the plaintiff was inexperienced and had no knowledge of the proper method or manner of repairing this hammer, that whatever services he performed therein was done by and under the direction of the blacksmith Higgins, who had authority to direct and control the work of the plaintiff.

It was also a question for the jury to determine whether or not plaintiff was negligent in striking the set hammer, and also whether or not the sliver or piece of metal which entered plaintiff’s eye was part of one of the burrs or whether it was a piece dislodged from the face of the hammer by the glancing or slanting blow and by its verdict has determined all of these questions in favor of the plaintiff, and from an examination of the record we are satisfied that their verdict is warranted by the evidence and that there is sufficient proof in the record to sustain the charge of negligence made against defendant by plaintiff in bis declaration.

It is insisted by defendant, also, that the court erred in permitting plaintiff to reopen his case after defendant had closed its evidence, and offer evidence which should properly have been presented in chief. While the question of the time when evidence shall be presented is usually a matter of discretion with the court, we feel compelled to criticise the action of plaintiff’s counsel. The piece of the hammer which had been taken from plaintiff’s eye was in court and in the pocket of plaintiff’s counsel during all of the trial, who did not see fit to exhibit the same to the jury or offer it in evidence in chief; but after the defendant rested his-case, plaintiff was recalled to the stand, the piece of metal produced and identified by him as the piece which had been taken from his eye; it was then admitted in evidence by the court over the-objections of the defendant. This necessitated a re-examination of the defendant’s witnesses relating to this piece of metal, and counsel for the plaintiff in his argument to the jury, says the reason it was not offered in chief was that he did not want to permit defendant’s witnesses to see or examine it during their testimony. This was a piece of sharp practice which ought not to be countenanced or permitted by any court, and we feel that it is our duty to criticise and condemn this action by plaintiff’s counsel; and while it is not a matter which required a reversal of the cause, it is a practice that should not be tolerated; the court would have been justified in sustaining the objection to the introduction of the piece of metal at that time.

Objection is also made to the remarks of plaintiff’s counsel in his final argument to the jury. The objections to this argument relate in part to the appeal to the jury to give plaintiff such damages as would commensurate with his loss, and arguing the sight of the other eye might by some possibility, through sympathetic nerves or otherwise, be lost and the boy compelled to go through life blind. There was no evidence whatever of any such possibility; this argument could only have a tendency to inflame or prejudice the minds of the jury, it was highly improper and should have been condemned by the trial court.

Counsel’s remarks concerning witnesses who are in the employ of defendant and who testified in this case were also improper; the abuse of a witness for the reason that he is in the employ of the defendant and that for that reason alone is unworthy of belief is uncalled for and grossly improper; and while we do not consider that the actions and remarks in this case require reversal of the judgment, we feel that plaintiff’s counsel came so near overstepping the limit that his action merits a just rebuke.

We do not feel that the court committed any substantial error in the admission or rejection of evidence, and having given careful attention to the instructions given and refused which have been criticised quite severely by defendant’s counsel, we do not find, upon such examination, that there is sufficient error therein to require reversal of this cause; upon the whole record we are satisfied that the charge of negligence as made by plaintiff in his declaration is sustained by the proof, and that substantial justice has been done, that the damages are not excessive, and, therefore, affirm the judgment.

Affirmed.


author: Mr. Presiding Justice Thompson

text:
    A. T. Green, Plaintiff in Error, v. William H. Smith et al., Executors, Defendants in Error.
    1. Administbation of estates—evidence as to claim. In an action against the estate of a deceased person on a note for $6,000 purporting to be signed by him, it is not error to admit evidence as to decedent’s financial condition and circumstances, that at the time he gave the note to plaintiff he held plaintiff’s note for $3,000 which was past due, and that plaintiff paid interest to him and to the executors but received no interest on the $6,000 note.
    2. Administbation of estates—evidence as to claim. In an action on a note against the estate of the alleged maker two tax schedules of personal property sworn to by plaintiff, one made before and one after the note in question is alleged to have been given, in which the note was not listed are competent as admissions against plaintiff and tend to show that the note was neither in his possession or in existence.
    3. Appeals and errors—saving questions. Where the introduction of tax schedules of personal property in which a note on which action is brought was not listed by plaintiff is not objected to in the trial court on the ground that no proper foundation therefor was laid, the objection cannot be raised in the Appellate Court.
    4. Negotiable instruments—what instruction as to considerar tion correct. An instruction in an action on a note is correct which informs the jury that the want of consideration destroys the validity of a note in the hands of the payee and if the jury believe from the evidence that the note was given without good or valuable consideration they should find for defendant.
    5. Negotiable instruments-—when instruction as to considerar tion based on the evidence. It cannot be said that an instruction in an action on a note is not based on the evidence where it informs the jury that if from the evidence they believe that the note was given without any consideration plaintiff could not recover and there is evidence that the note was given in lieu of land which the maker intended to give to his daughter who was plaintiff’s wife.
    6. Instructions—when not error to refuse. Where a plea sets up fraud and circumvention in an action on a note and there is no evidence on that question, it is not reversible error to refuse long and involved instructions telling the jury that there is no evidence on that issue though the jury should be so told.
    Error to the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.

      Flack & Lawyer, for plaintiff in error.
    Elting & Mainline, for defendants in error; Gilbert J. Hainline, of counsel.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action of assumpsit brought by plaintiff in error against defendants in error, executors of the last will of Samuel Smith, deceased, on a promissory note for $6,000, dated August 10, 1909, payable on demand after date with interest at the rate of six per cent, per annum payable annually, purporting to be signed by Samuel Smith. Verified pleas of the general issue, denying the execution of the note and a want of consideration together with a plea of fraud and circumvention were filed, upon which issues were joined. A jury returned a verdict in favor of the defendants on which the judgment was rendered and the plaintiff has sued out a writ of error to review that judgment.

The evidence shows that Samuel Smith died February 2, 1911, leaving an estate of about $65,000, of which $40,000 was in real estate and $25,000 in notes and mortgages; at the time of his death he was 82 years of age and for many years his eye-sight was so poor that when he wrote his name he would get his face as close as possible to the paper. Plaintiff’s first wife was a daughter of Samuel Smith; she died August 7, 1909. Smith furnished plaintiff with $100 with which to take his deceased wife to Effingham for burial and on his return plaintiff gave Smith a receipt dated August 10, 1909, for $100 stating that the expenses amounted to $69 and that the balance was returned to Smith; this writing signed by plaintiff was found among Smith’s papers.

The evidence in support of the execution of the note was given by Bertha Luce, who is a sister of the plaintiff’s present wife, and was a clerk in plaintiff’s millinery store. She testified that Smith came into plaintiff’s store on August 10,1909, and said: “Is Mr. Green here? I would like to see him, I am ready to sign that note; ’ ’ that Green, who was in the back part of the store got the note and Smith said we will go up in front so I can see to sign it, “you better draw a line here so I can see where to sign my name I am nearly blind; ’ ’ that plaintiff had the note prepared before Smith came in; that there was nothing peculiar in the way he signed his name; that he was standing up when he signed it, and that he signed it just like any one else would.

Charles H. Green, a brother of plaintiff testified that in August, 1909, he saw Smith in plaintiff’s barn that “my brother mentioned to him about his business, that they ought to get together and settle it up; Smith said ‘ How much do you claim ? ’ ’ My brother said in the neighborhood of $6,600 or $6,500. He said “I think you have it a little high, how would $6,000 suit you?” to which my brother assented; that Smith then asked if he would be at the store to-morrow and plaintiff said “I can be at the store any time.” And Smith said “to-morrow I will come down and we will try and get this thing in Shape;” that there was nothing said about what'it was for; there was no figuring done and there was nothing said either about a note outstanding between them or about Green owing Smith.

William Clark, a horse buyer and not related to any of the parties, testified that he asked Smith if he owed Green a note, he said “yes, I told him I was talking of selling a horse to Green and he said he owed him a $6,000 note;” that he never told Green about this conversation and never talked with Green’s lawyer about it.

Proof for the defense was made by eight witnesses, business men, bankers and others who testified concerning Smith’s manner of writing, that they had seen him write many times; that they knew the writing of Smith and that the signature in question was not his signature.

W. H. Smith, a son of the deceased testified that in a conversation with the plaintiff after the death of the. testator, he asked plaintiff how he came to have that note, and plaintiff replied that the deceased had once owned a piece of land which he had intended to give to plaintiff’s first wife, the deceased’s daughter; that Smith’s second wife had induced him to sell this land and that the deceased gave him this $6,000 note to represent what he had intended his daughter, plaintiff’s first wife to have in the land. The plaintiff, although a witness after this testimony was given, did not deny this conversation.

It is contended that the court erred in admitting in evidence testimony which showed that on August 10, 1909, the time the note in controversy was given, that Smith, the testator, held a note past due, executed by plaintiff for $3,000, dated March 1, 1901, bearing interest at six per cent, per annum, upon which the plaintiff paid interest annually up to the time of the death of the testator, and which he has since paid to the executors, and in permitting proof to be made as to the financial condition and circumstances of the testator.

This character of evidence in claims against the estates of deceased persons is held to be proper. Thorp v. Goewey, 85 Ill. 611. In the Thorp ease, one of the issues was that the pretended note was never made by the deceased and the evidence of the kind here objected to was held proper for the consideration of the jury. In the case at bar, there was testimony offered by plaintiff tending to show there had been a settlement of the financial affairs of the parties and that the note in controversy was given on a settlement. The improbability of the testator giving a note for $6,000 when he held a note executed by the payee for $3,000, long past due, on which the payee thereafter paid interest and that the payee would hold a note for $6,000, without the interest being paid, against the party holding the $3,000 note who collected his interest, were circumstances pertinent to the issue especially when the mouth of one of the parties was closed by death and the other by law. There was no error in admitting such evidence, and the weight to be given to it was a question for the jury.

It was also contended that the court erred in admitting in evidence two schedules of personal property made and sworn to by the plaintiff to the assessor of the city of Macomb. One schedule was made April 30, 1910, the other is April 16, 1911. These schedules show that all the assessable property the plaintiff had in that city in each of those years consisted of a clock, a sewing machine and some household goods of the aggregate value of $81 the last year and $93 the first year. The assessor also testified that he inquired of plaintiff if he had any notes and plaintiff replied that he had listed all he had. The schedules are admissions that plaintiff did not have the note he now claims to have had since August 10, 1909, and were competent evidence. 1 Eney. of Evidence, 363. If the note had been in existence at the time of the making of the schedules, but in some other parties hands, it was in the power of plaintiff to have shown such fact, and the fact that he did not list such a note tended to show it was neither in his possession nor in existence. While there are authorities holding such evidence to be incompetent, we hold that in reason it is competent as an admission against the party who made the schedules. Plaintiff now also contends that no proper foundation for the introduction of the schedules was laid by showing that he was a resident of Macomb, that objection was' not made in the trial court and cannot be raised here for the first time.

Plaintiff also insists that there was error in giving the defendant’s eighth instruction. The instruction informed the jury that the want of consideration destroys the validity of a note in the hands of the payee, and if the jury believe from the evidence that the note was given without any good or valuable consideration they should find for the defendants. The objection is made that the instruction does not tell the jury that the fact of want of consideration must be found from a preponderance of the evidence. The instruction as given laid down a correct principle of law and did not omit an essential legal principle. If the jury from the evidence believe it to be a fact that there was no consideration for the note they could only arrive at such belief because they were impelled to it by the preponderance of the evidence, and they were told in other instructions on whom rested the burden of proving the several issues.

It is also contended that it was error to give the seventh instruction which informed the jury that if from the evidence, it believed that the note was given without any consideration and that it was a gift, the plaintiff could not recover. Plaintiff argues there was no evidence on which to base the instruction. There is evidence tending to prove that the note was given to plaintiff for land which the maker had intended to give his daughter, and having sold the land, that he gave the note to her surviving husband, the plaintiff, in lieu of the land.

Both parties requested instructions concerning fraud and circumvention. There was no evidence before the jury on that question and the court refused to give any instructions on that issue. The two instructions asked by plaintiff on that question are long and involved, one of them attempts to set forth the substance of the plea but varies from its averments; the other sets forth at considerable length the evidence in the case on other issues and then tells the jury there is no evidence in that issue. If the plaintiff had simply asked an instruction telling the jury there was no evidence on that issue the court would undoubtedly have given it. As we understand the rule, if there is evidence to support some counts in a declaration, and there is no evidence to support other counts, it is not error to refuse instructions telling the jury that certain counts are withdrawn from their consideration. Consolidated Coal Co. v. Scheiber, 167 Ill. 539; Swift & Co. v. Rutowski, 182 Ill. 18; Chicago & A. R. Co. v. Anderson, 166 Ill. 572. The same rule is applicable to pleas. While the jury should have been told there was no evidence on that issue yet it was not reversible error to refuse the instructions as asked. Finding no reversible error in the case the judgment is affirmed.

Affirmed.


author: Mr. Presidietg Justice Thompsoet

text:
    The People of the State of Illinois, Defendant in Error, v. J. W. Martin, Plaintiff in Error.
    1. Informations—when insufficient. A count of an information which charges that defendants, J. W. Martin and Marie Watson, being unmarried persons, lived together in an open state of fornication and adultery contrary to the statute, does not set forth facts constituting the statutory offenses since it is not averred that defendants are a man and a woman.
    2. Information—form. An information charging adultery and fornication should be carried on in the name and by the authority of the People of the State of Illinois and conclude against the peace and dignity of the same.
    3. Adultery—defined. Adultery is sexual intercourse of a married person with a person other than the offender’s husband or wife.

      4. Adultery—when people must prove that defendant is married. Where counts of an information charging defendant with adultery aver that defendant is a married person, the People must prove that averment.
    Error to the County Court of Adams county; the Hon. Lyman McGarl, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.

      Fred G. Wolfe and William: Schlagenhauf, for plaintiff in error.
    John T. Gilmer and Arthur R. Roy, for defendant in error.
   Mr. Presidietg Justice Thompsoet

delivered the opinion of the court.

An information consisting of two counts was presented to the county court of Adams county at the May term, 1912, against J. W. Martin and Marie Watson. Leave was given to amend the information and to file an additional count. The first count as amended charges the defendants “did then and there live together in an open state of fornication the said J; W. Martin and Marie Watson being then and there each ■and both of them single and unmarried persons, to the evil example of others in like cases offending contrary to the form of the statute,” etc.

The second count, as amended, charges that J. W. Martin and one Marie Watson did then and there Eve in an open state of adultery and fornication: “the said J. W. Martin being then a married male person and the said Marie Watson being then and there a single and unmarried female person and prays due process of law to make them answer to the said People of the State of Illinois.”

The transcript of the record made by the clerk as filed in this court contains no other count. The bill of exceptions however contains an additional count substantially in the language of the second count.

J. W. Martin was the only defendant arrested. The plaintiff in error by counsel made a motion to quash the amended information and each count thereof, which was overruled. A jury was waived and the case was tried by the court without a jury. The court found “the defendant guilty in manner and form as in said information charged, ’5 and sentenced him to be imprisoned for six months.

The statute (section 45 of the Criminal Code) provides: “If any man and woman shall live together in an open state of adultery, or adultery and fornication, every such person shall he fined not exceeding $500 or confined in the county jail not exceeding one year.”

The first count contains no averment as to the sex of either J. W. Martin or Marie Watson. Even if there is a presumption as to Marie Watson from the Christian name, there can be no presumption from the initials of J. W. Martin, hence from anything that appears in that count the defendants may be both of the same sex. Adultery and fornication are statutory offenses. The alleged offenses are not charged in the language of the statute since the defendants are not averred to be a man and a woman. The count- does not set forth facts constituting a statutory offense. Johnson v. People, 113 Ill. 99; Cochran v. People, 175 Ill. 28. The court erred in overruling the motion to quash the first amended count.

The second count and the additional count conclude with a prayer for process “to make them answer to the People of the State of Illinois touching and concerning the premises aforesaid.” . “Such an information like an indictment should be carried on in the name and by the authority of the People of the State of Illinois and conclude against the peace and dignity of the same.” Const. art. VI, sec. 33; Gould v. People, 89 Ill. 216; Parris v. People, 76 Ill. 274.

The second and additional counts charge the plaintiff in error, J. W. Martin, with the crime of adultery. Adultery is sexual intercourse of a married person with á person other than the offender’s husband or wife. Counsel for the People cite authority that an accused person is presumed to be single and unmarried. Gaunt v. State, 50 N. J. Law, 490. These counts aver that plaintiff in error is a married man. It was necessary to prove that averment. 1 Am. & Eng. Ency. of Law, 756 and cases cited. There is not a scintilla of evidence in the record tending to show that plaintiff in error was a married man. The conviction cannot he sustained on either the second or additional counts for lack of necessary proof. The judgment is reversed and the cause remanded.

jReversed and remanded.


text:
    Charles M. Peirce, Appellee, v. Levi W. Sholtey, Appellant.
    1. Evidence—examination of experts. The approved method of introducing expert evidence as to the reasonable value of attorney’s services, for which action is brought, is to put questions to qualified expert witnesses which assume certain facts claimed to be based on plaintiff’s evidence and to ask what would be the reasonable and customary value of such services, assuming such facts to be true.
    2. Evidence—examination of experts. It is not proper in an action for fees for attorney’s services, in introducing expert evidence, to ask expert witnesses whether they heard the evidence of plaintiff in chief as to the services rendered and, after an affirmative answer, to ask what in their judgment is the reasonable, customary and ordinary charge for such services; but it is not reversible error when there is no conflict on the question of the services performed.
    3. Payment—iurden of proof. In an action for attorney’s fees and for money advanced, where defendant pleads payment, it is proper to instruct that the burden of proving such plea is on defendant.
    Appeal from the Circuit Court of McLean county; the Hon. C. D. Mybbs, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Welty, Sterling & Whitmore, for appellant.
    Fitz Henry & Gillespie, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit, brought by Charles M. Peirce, appellee, to recover $1,000 for services as an attorney and for money advanced for Levi W. Sholtey, the defendant. The declaration consists of the common counts. The defendant filed pleas of the general issue and of payment. A trial resulted in a verdict and judgment in favor of the plaintiff for $450.

The evidence shows that the defendant on June 20, 1908, made a contract with the South West Land Company, a corporation with headquarters in Chicago, for the purchase of a section of land in Texas and with his son executed for the purchase thereof six judgment notes amounting to $12,480. At the same time the son of defendant, made a contract for the purchase of a quarter section of land from the same company, and with his father executed six other judgment notes, for the sum of $3,200. The notes made by defendant and his son matured at various times from the execution of the contract to March, 1913. The defendant insisted the notes were deposited in a private bank known as the Anchor Bank run by one Jacob Martens. Martens claimed to have purchased several of the notes amounting to $8,000. Plaintiff in company with the defendant visited the office of the Land Company in Chicago and thereafter prepared and filed two bills in chancery, one for the defendant, the other for plaintiff’s son, against the South West Land Company, Martens and others in the McLean Circuit Court praying for the cancellation of the contracts and notes and for injunctions restraining the defendants from transferring the notes. Injunctions were issued as prayed. Afterwards settlements of the difficulties between the parties were made by which the complainants obtained deeds upon the payment of $13,000.

The principal contention of the defendant is that he only employed plaintiff to file the bill in which he was complainant and that he is not responsible for the services rendered by plaintiff in his son’s suit. The son was not present at the office of plaintiff until after the bills had been prepared and was not a witness in this suit. It was a question of fact for the jury to decide from the evidence whether the defendant employed the plaintiff to file both bills or only defendant’s bill. The evidence for the respective parties is in direct conflict. We are not able to say that the verdict and judgment is not sustained or is against the manifest weight of the evidence.

It is also insisted that in the settlement between defendant and the Land Company, the Land Company was to pay his attorney’s fees. The settlement was reduced to writing and only provides for the payment of court costs; the plaintiff testified it was never agreed that the Land Company was to pay his fees.

It is also contended that the court erred in permitting questions to be put to practicing attorneys examined as to the reasonable value of attorney’s fees. They first qualified as expert witnesses on the value of legal services. The questions put to a number of these witnesses assumed certain facts claimed to be based on the evidence of the plaintiff and asked what would be the reasonable, customary and fair value of such services assuming such facts to be true. To some witnesses the question was put if they had heard the evidence of the plaintiff in chief as to the services rendered by him, and having answered in the affirmative they were asked what in their judgment was the reasonable, customary and ordinary charge for such services. The first method is the approved method of introducing expert evidence. The latter method is not good practice and is disapproved, but is not reversible error when there is no conflict on the question of the services performed. 5 Ency. of Evidence, 619.

It is also insisted that an instruction given at the request of the plaintiff telling the jury that the burden of proving the plea of payment was on the defendant, was erroneous. This was an affirmative plea and the instruction properly stated the law.

We find no error of law in the case.

The judgment is affirmed.

Affirmed.


text:
    LaCrosse Lumber Company, Appellant, v. Grace Methodist Episcopal Church of Jacksonville, Appellee.
    1. Mechanics’ liens—notice must state name of contractor. Under section 24 of the Mechanics’ Lien Statute a notice given to the owner of the property by the claimant for lien, which does not state that such claimant is a sub-contractor or was employed or contracted to furnish materials, and which does not state the name of the contractor with whom he contracted, or who his principal is, is invalid.
    2. Mechanics’ liens—church trustees. In a suit to enforce a mechanics’ lien against a church, where the trustees are joint owners with the corporation "such trustees are necessary parties and must be sued and served with summons as individual trustees.
    3. Pleading—demurrer for want of necessary parties must he special. A demurrer for want of necessary parties, being for a matter that can be cured by amendment, should be special.
    4. Mechanics’ liens—statute strictly construed. As mechanics’ liens were not recognized by the common law or in equity, but exist only by statute creating them, and providing for the methods of their enforcement, such statutes must be strictly construed with reference to the requirements upon which the right depends.
    5. Mechanics’ LiENS^-wofice must he served on owner or agent. To state a case for lien, the notice required by the statute must be shown to have been served on the owner or his agent.
    6. Mechanics’ liens—original contractor need not give notice. Under section 5 of the Mechanics’ Lien Statute, when the claimant for a lien is an original contractor, the notice to the owner, required under section 24, is not necessary.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.

      Adams, Bobb & Adams, and J. Marshall Miller, for appellant; James B. Wescott, of counsel.
    Rinaker & Beerly, Worthington & Reeve and William N. Hairgrove, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Appellant on March 11, 1911, filed a hill to foreclose a mechanic’s lien in the circuit court of Morgan county, alleging that on or about June 1, 1909, Grace Methodist Episcopal Church of Jacksonville, Illinois, a religious corporation, and the Trustees of Grace Methodist Episcopal Church of Jacksonville, Illinois, were the owners of certain real estate in the city of Jacksonville; that on or about said date said Church and the Trustees of said Church entered into a contract with one John Stillwagen, whereby said Stillwagen was to furnish the material for and erect a certain church building on said property; that Stillwagen in the performance of his contract with the Church contracted with appellant whereby appellant agreed to furnish and deliver lumber at the then market prices therefor which was used in the construction of said building to the value of $3,274.98, the last delivery being on November 15, 1910, “at which time said contract between this complainant and John Stillwagen was fully completed;” that complainant caused to be filed in the office of the circuit clerk of Morgan county a verified statement of claim for mechanic’s lien.

The bill further alleged that on December 12, 1910, complainant caused to be served upon the superintendent in charge of said church building and upon the proper agent of said church, a notice of a mechanic’s lien, a copy of which is attached to the bill as an exhibit.

The bill concludes with a prayer for summons for “the Defendants, The Grace Methodist Episcopal Church of Jacksonville, Illinois, the Trustees of Grace Methodist Episcopal Church of Jacksonville, Illinois, and John Stillwagen and the Illinois Steel Bridge Company, a corporation.”

Summons was returned served, “by reading and delivering a true copy of the same to each of the within named Defendants, W. E. Veitch, President, and Stephen B. Capps, Secretary of the Board of Trustees of Grace Methodist Episcopal Church of Jacksonville, and upon W. E. Veitch, President and Stephen B. Capps, Secretary of the Board of Trustees of the Trustees of Grace Methodist Episcopal Church of Jacksonville, Illinois.”

On May 17, 1911, a general demurrer was filed to the bill by Grace Methodist Episcopal Church which was overruled and an order entered by the court consolidating this case with another suit which had been filed to enforce a mechanic’s lien on the same property.

Answers were filed by the defendants, John Stillwagen and Grace Methodist Episcopal Church, replications were filed thereto by appellant and the cause was referred to a master in chancery.

At the next term of court the order of reference was set aside upon the motion of Grace Methodist Episcopal Church and John Stillwagen and leave given defendants to withdraw their answers and to file a demurrer to the bill of the LaCrosse Lumber Company, appellant.

Defendant, Grace Methodist Episcopal Church, filed a general and special demurrer on January 16, 1912, setting up as special grounds that the notice served by appellant which is attached to the bill herein as Exhibit “B” is not sufficient in that it does not comply with the statute. The court sustained the demurrer and dismissed appellant’s bill for want of equity.

It appears from the allegations of the bill that the Trustees of Grace Methodist Episcopal Church are by the first paragraph of the bill alleged to be owners of the said real estate, together with the corporation, Grace Methodist Episcopal Church. If the Trustees of Grace Methodist Episcopal Church are joint owners with the corporation they are necessary parties, and they are not in court. They must be sued as individual trustees and served with summons as such. They have not been so sued and have not been served except by service on the President and Secretary of the Board of Trustees which is not sufficient. They have entered no appearance, have filed no pleading and they are not named except as a body, and are not alleged to be a corporation anywhere in the bill. Grace Methodist Episcopal Church, a religious corporation is in court and the demurrer is filed by it alone and this appeal is against the Church corporation only. If the trustees hold title to the real estate then appellant’s bill here is subject to a demurrer for want of necessary parties (Granquist v. Western Tube Co., 240 Ill. 132), but as that is a matter that could be cured by amendment, a demurrer on that ground should be special.

The notice served by appellant is as follows:—* ‘ To the Trustees of Grace Methodist Episcopal Church of Jacksonville, Illinois;—

' You are hereby notified that LaCrosse Lumber Company incorporated and doing business under and by virtue of the Laws of the State of Illinois, dealers in Lumber and other building materials, have heretofore furnished from time to time lumber and other building materials as requested and called upon by your agents and employees, which said lumber and other building materials were delivered to and were used in the construction of Grace Methodist Episcopal Church building under a contract between you and one John Stillwagen and on your property at the Southwest corner of West Street and Church Street in the city of Jacksonville, Illinois, described as lot No. 29 (Twenty-nine) and part of Lot twenty-eight (28) in Block Eight (8) in Ohancler’s Addition to Jacksonville, Illinois, in Morgan County, Illinois, and that there is now due and owing to said LaCrosse Lumber Company for said lumber and building materials furnished as aforesaid the sum of Three Thousand Two Hundred Seventy-four and 98-100—($3,274.98) Dollars. Dated at Jacksonville, Illinois, this 12th day of December, A. D. 1910.

LaCrosse Lumber Company, Incorporated,
By Ollie Parker, Manager.”
“This 12th day of December, 1910,1 received a copy of the above notice.
(Signed) Wm. C. McCullough, Supt.
December 12-10—Eecd. a copy of the above, but without assuming any liability of personal sort for the Trustees of said Church.
(Signed) W. E. Veitch.”

Section 24 of the Mechanics Lien Statute provides:

“Sub-contractors or parties furnishing labor and materials may, at any time, after making the contract with the contractor, and shall within sixty (60) days after the completion thereof, or, if extra or additional work or material is delivered thereafter, within sixty (60) days after the date of completion of such extra or additional work or final delivery of such extra or additional material, cause a written notice of his claim and the amount due or to become due thereunder, to be personally served on the owner or his agent or architect or the superintendent having charge of the building or improvement.” This section also provides that such notice shall not be required when the contractor or sub-contractor shall have given the sworn statement required by section 5 of this act. This sworn statement, as appears from the allegations of the bill was not given by the original contractor as required by section 5, hence the notice required by section 24 was necessary. Section 24 also provides that “the form of such notice may be as follows:” and gives the form of such notice. The notice herein does not comply with the form provided by the statute which is, “You are hereby notified that I have been employed by (the name of contractor),” whereas the notice given does not give the name of the contractor and does not state that appellant was a sub-contract- or or was employed by any person who was an original contractor with the owners of the property upon which this lien is sought. The language of the notice is that appellant has furnished lumber, etc., “as requested and called upon by your agents and employes —under a contract between you and one John Stillwagen.”

This language does not convey the information which the statute intends to have conveyed by the notice required by this section for the reason that nothing in this language gives notice to the owners of any contract between the original contractor, Stillwagen, and appellant, and does not state that appellant is a sub-contractor or, if it was a sub-contractor, who is its principal. It does not state that appellant was employed by any person to furnish materials, etc., as a sub-contractor as the statute requires. The notice is that the material furnished by appellant was furnished to the Trustees of Grace Methodist Episcopal Church, “as requested and called upon by your agents and employes” and there is no allegation that the Trustees of Grace Methodist Episcopal Church, who are not in court are the representatives of the appellee, Grace Methodist Episcopal Church.

In the case of Schmidt v. Anderson, 253 Ill. 29, in construing the Mechanic’s Lien Law it is said; “As mechanics’ liens were not recognized by the common law or in equity but exist only by virtue of statutes creating them and providing a method for their enforcement, such statutes must be strictly construed with reference to those requirements upon which the right depends.” Citing Turnes v. Brenckle, 249 Ill. 394.

The allegations of the bill are for a lien because of material furnished by appellant as a sub-contractor. To state a case for a lien the notice to the owner required by the statute must be served on the owner or his agent. The notice served in this cause as alleged in the bill is that appellant was an original contractor; a ease where no notice is required. The bill alleges that appellant was a sub-contractor under the original contractor John Stillwagen. The form of notice given in the statute requires that the sub-contractor shall state the name of the party who contracted with the sub-contractor. That is a very material part of the notice. The notice described in the bill does not state that appellant was employed by the original contractor or by any contractor to furnish material, but only that appellant furnished material at the request of “your agents and employes,” and the word “your” refers to the trustees, not the corporation. The notice set out in the bill will not sustain a claim for a lien in favor of appellant as a sub-contractor. The demurrer was properly sustained and the decree is affirmed.

Affirmed.


text:
    Arthur C. Loomis, Appellee, v. Federal Union Surety Company, Appellant.
    1. Contracts—construction. A company engaged in a contract for the erection of a railroad bridge became financially embarrassed, and to protect the company which was surety on its bond and to secure a loan from such company executed an assignment of all sums due, or to become due, to it under the contract, giving the surety company full power and control over all such moneys. At the same time the surety company executed a contract by which it agreed that it would pay over to the contractor all moneys received by it under the assignment under such restrictions as would insure their proper application to the discharge of labor and other claims incurred under the contract, and further that when such claims had been paid the surety company should retain a sum sufficient to reimburse it for its loan with interest. Held, that the two contracts should be construed together, and that by their clear terms the surety company was not entitled to apply funds in its hands received under the original contract to the payment of its loan before discharging the claim of a sub-contractor.
    2. Equity—pleading. A decree based on a contract may be sustained where the general terms of such contract are alleged in such manner as to support the decree although the contract is not set out at length.
    3. Appeals and errors—waiver. Error, if any, in awarding interest according to' the rate authorized in a foreign state in the absence of appropriate averments in the bill is waived where not assigned as error or argued.
    4. Appeals and ebrors—remittitur. Where an item is erroneously included in the decree, but in their argument appellees consent to a remittitur of the amount of such item, the decree will be affirmed after such remittitur at the costs of appellees.
    5. Corporations—officers. Where money due to a corporation under the terms of a contract is paid by check which is endorsed to an officer of the company and deposited to his account, a portion of it being applied in accordance with the terms of the contract, the corporation cannot contend that it is not responsible for the application of the residue.
    Appeal from the Circuit Court of Coles county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed on remittitur.
    Opinion filed March 18, 1913.
    Rehearing denied April 18, 1913.
    Statement by the Court. Arthur O. Loomis and Daniel P. Bose, partners, of whom Loomis is the surviving partner, filed a bill in equity in the circuit court of Coles county against the Federal Union Surety Company, hereinafter called the Surety Company, the Collier Bridge Company, hereinafter called the Bridge Company, and the C., C., C. & St. Louis Railway Company, hereinafter called the Railway Company, for the purpose of compelling the Surety Company to pay to complainants certain moneys alleged to have been paid to it by the Railway Company under a sub-contract dated January 20,1906, made between the Bridge Company and Loomis and Bose, under an original contract between the Bailway Company and the Bridge Company.
    The bill alleges that the complainants as sub-contractors entered into a written contract with the Bridge Company to perform certain work on the St. Louis division of the Bailway Company for a certain definite compensation provided for in the sub-contract; that complainants entered upon the performance of the work and prior to August 3, 1906, had received from the Bridge Company upon estimates on completed work all moneys due them except a retained percentage of $1,425.11; that the Bridge Company delivered to the Railway Company its penal bond in the sum of $20,-000, with the defendant Surety Company, as surety for the performance of the terms and requirements of the original contract between the Railway Company and the Bridge Company; that prior to August 3, 1906, the Bridge Company became financially embarrassed and unable to proceed with its contracts, and, as a result thereof, an agreement was made between the Bridge Company, the Surety Company and the Railway Company reciting that whereas the surety bond was in full force, and the Surety Company is or may be liable for claims and debts aggregating a large amount and may suffer great loss under said bond unless said claims are paid, and whereas the Surety Company has agreed to loan a certain sum of money to the Bridge Company to be used in the completion of the contract, and said Surety Company does not loan said money except on the execution of this instrument, now therefore, the Bridge Company assigns and transfers to the Surety Company all rights of the Bridge Company to all moneys now due or to become due from said Railway Company under the original contract on account of monthly assessments or retained percentage and all moneys due shall be paid by the Railway Company to the Surety Company; that thereafter the complainants continued in the performance of their contract and completed the same to the satisfaction of the engineer of the Railway Company; that monthly estimates were made after August 3, 1906, and payments made to the Surety Company thereon by the Railway Company, and the Surety Company paid to complainants $16,196.47 and that there is still due them under said contract $4,616.67 and interest.
    It is also alleged that the Bridge Company is insolvent, and that the sole and only consideration for the assignment to the Surety Company of the moneys due from the Bailway Company to said Bridge Company was an agreement on the part of the Surety Company to distribute said moneys among complainants and other sub-contractors entitled thereto, in accordance with the estimate sheets attached to the vouchers issued and paid to the Surety Company, as assignee of the Bridge Company, for the purpose of protecting said Surety Company on said bond.
    The bill further alleges that by virtue of such acts the Surety Company became a trustee holding said sums so paid by said Bailway Company for complainants and that the Bailway Company has paid to the Surety Company all the money due complainants.
    The bill prays for an answer under oath by the Surety Company and that it set forth the contract entered into at the time of the assignment of August 3, 1906. A demurrer by the Bailway Company on the ground that it was not a necessary party was sustained and the bill dismissed as to it. Loomis v. Federal Union Surety Co., 163 Ill. App. 621.
    The defendant Surety Company, after the demurrer to a plea in abatement had been sustained, answered the bill admitting the making of the original contract and the bond, but denying any knowledge of the subcontract between the Bridge Company and complainants. It admits the insolvency of the Bridge Company and that the Bridge Company made the assignment of moneys due or to become due from the Bailway Company, to the Bridge Company, and denies that the monthly estimates furnished any information of the amount of money due the complainants and that there is the sum of $4,616.47 due to complainants; it denies that the Bailway Company made monthly estimates of the sums due complainants and issued vouchers to the Surety Company therefor, which were collected and appropriated by it. It sets forth that on August 3, 1906, concurrently with the making of the assignment, this defendant made a contract with the Bridge Com-party reciting, among other things, that whereas the Bridge Company is indebted to various parties and it is about to loan the Bridge Company $5,000, that in consideration of said assignment, the Surety Company agrees with the Bridg’e Company to pay over to the Bridge Company all moneys received by it under said assignment, under such restrictions as will insure the proper application of all such moneys to the discharge of the labor, material and other bills incurred by the Bridge Company in the prosecution of its work under said contracts, the Surety Company having the right to examine the books of the Bridge Company in reference to such work and to indicate the bills on which such payments shall be made, providing such payments be made on account of obligations incurred in the prosecution of the work under the several contracts; that when all the bills, accounts and obligations incurred by the Bridge Company in connection with the prosecution of its work under the several contracts shall have been paid, the said Surety Company shall retain a sufficient sum to reimburse it for the $5,000 loaned to the Bridge Company with interest; that when said contracts are completed and all bills and obligations paid connected with the prosecution of the work, including the $5,000 loan and interest shall be paid, and the obligation on the surety bond released the Surety Company will pay to the Bridge Company any balance of money remaining and turn over to it the personal property described in the bill of sale and not consumed; that if at the completion of the contracts the amount received shall be insufficient to pay the obligations incurred in the prosecution of the work and the $5,000 loan, the Surety Company may proceed to sell so much of the property of the Bridge Company as will be sufficient to pay the deficiency and return the balance to the Bridge Company.
    The cause was heard by the court on the bill, answer, replication and report of evidence by the master. The court found that by the contract between the Bridge - Company and the Railway Company, the Bridge Company covenanted to promptly pay all sub-contractors and that the bond executed by the Bridge Company and the Surety Company was upon condition that the Bridge Company should perform all the terms and conditions of the contract; that the sum received by the Bridge Company from the Railway Company for said work was ten per cent, more than the sum to be paid the complainants by the Bridge Company; that by the assignment and contract of August 3, 1906, between the Bridge Company all moneys received by it under said assignment under such restrictions as would insure the proper application of all such moneys to the discharge of labor, material and other bills incurred by the Bridge Company in the prosecution of its work under the contract, and when all the accounts and obligations incurred in such work shall have been paid, the Surety Company should reimburse itself for the $5,000 loan and interest; that the contract between the Bridge Company and complainants was executed and the work performed in the state of Indiana; that the legal rate of interest in that state is six per cent.; that complainants fully executed their contract and the Surety Company had received the money for such work from the Bailway Company; that there had been reserved by the Bridge Company on August 1, 1906, ten per cent, of the sum due complainants, being $1,425.41, and the same had been reserved by the Bailway Company from the Bridge Company; that after the first day of August monthly estimates were made out by the engineer with attached vouchers and checks less the ten per cent, retained and delivered to the Surety Company as assignee of the Bridge Company showing the work done by the complainants; that for work done after the 1st day of August there was retained the further sum of $1,476.69, being ten per cent, of the compensation due complainants exclusive of the said ten per cent. $1,435.27, that the Surety Company received all of said sums from the Railway Company; that interest on the several sums due complainants from the date they were paid to the Surety Company at six per cent, to the date of the decree amount to $1,420.02 making a total of $5,757.42 due complainants and that the Surety Company wrongfully diverted the sums so paid to it and rendered a decree for $5,757.42 against the Surety Company in favor of complainants. The Surety Company appeals.
    H. A. Neal, for appellant; Henley & Baker, of counsel.
    Vause & Hughes, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The appellant contends that it is not liable to complainants either under the bond executed by it to the Railway Company as surety for the Bridge Company, or under the contracts made between the Bridge Company and the Surety Company when the Bridge Company became embarrassed on August 3, 1906, for the ten per cent, withheld before August 3, 1906, from the complainants until the completion and acceptance of the work, and the work done after August 3rd, by the complainants all of which, under the assignment by the Bridge Company, was paid to the Surety Company.

When the work was finally completed the evidence shows that it was found there was a loss on the work done by other sub-contractors. In arriving at this loss the Surety Company adds to the cost of the work the loan of $5,000 and interest made by the Surety Company to the Bridge Company on August 3,1906. It was found that final payment'made to the Surety Company by the Railway Company, after the Surety Company had retained the amount of $5,000 loan and interest would only pay the sub-contractors sixty-nine per cent, of the amount due them. All the sub-contractors except complainants received sixty-nine per cent, of the amount due them in full of their respective claims, and the Surety Company still holds in the hands of its treasurer the sixty-nine per cent, of the sum due complainants, and the $5,000 and interest applied by it on the loan of August 3, 1906.

The Bailway Company on April 4, 1907, paid to the Surety Company, as assignee of the Bridge Company, its final payment on the work done by complainants under their sub-contract, together with money due for work done by other sub-contractors. One W. T. Durbin was at that time president of the Surety Company. The Surety Company endorsed the check to Durbin, and he deposited it to his account and paid part of the money received to other sub-contractors and it is admitted that Durbin, who is now treasurer of the Surety Company, still holds $3,038.11 of said sum then received for the complainants. The $3,038.11 is sixty-nine per cent.' of the principal sum due them. The Surety Company claims it is not liable for the money Durbin holds, that it turned over to him* The claim of the Surety Company is not tenable. The money Durbin holds that was turned over to him as an officer of the Surety Company by the Surety Company must be considered as held by the Company. There is no disagreement, or at least it is not disputed, but that the principal sum claimed by the complainants as found by the court to be due them is the correct sum due to complainants.

If by virtue of the contracts of August 3, the Surety Company obligated itself to collect the money earned by complainants and to pay them out of the money collected then this decree is substantially right.

The assignment made by the Bridge Company was made for the purpose of securing the Surety Company against loss on its bond, and eliminates the Bridge Company from contesting the disposition of the moneys received from the Railway Company. It gives the Surety Company “full power and control over all said moneys.” This assignment was made with the knowledge of the Railway Company and in contemplation of the interest of all parties. The contract made by the Surety Company was made at the same time and in consideration of the. assignment. These two instruments must be construed as one contract. The contract made by the Surety Company after certain recitals provides, “First:—That the Federal Union Surety Company will pay over to the said Collier Bridge Company ‘all moneys received by it under assignments hereinbefore mentioned under such reasonable restrictions as will insure the proper application of all such moneys to the discharge of labor, material and other bills incurred by the Collier Bridge Company in the prosecution of work under said contracts. ’ ” “ Second:—When all the bills, accounts and obligations incurred by the Collier Bridge Company in connection with the prosecution of the work under the said several contracts shall have been paid the said Surety Company shall retain from any moneys assigned to it, as aforesaid a sufficient sum to reimburse it for the Five Thousand Dollars this day loaned to the Collier Bridge Company with interest thereon.”

The contract clearly provides that all the obligations of the Bridge Company incurred in the prosecution of the work under the several sub-contracts shall be paid by the Surety Company as assignee of the Bridge Company before the Surety Company had the right to repay itself the $5,000 loan. The Surety Company has on hand of the moneys received from the Railway Company the $3,038.11 held by its former president, now treasurer, for the complainants and the $5,000 appropriated by it wrongfully to pay the loan that it had made to the Bridge Company without having paid the debt due to complainants, and on which it has obligated itself to apply the money received by it from the Railway Company before paying the debt to itself.

It is also insisted the allegations of the bill are not sufficient to sustain the decree even if the evidence is sufficient. The bill alleges that the sole consideration for the assignment of moneys due the Bridge Company to the Surety Company was an agreement on the part of the Surety Company to distribute said moneys among the complainants and other sub-contractors in accordance with the estimate sheets and vouchers issued and paid to the Surety Company, and that the Surety Company became a trustee holding said sums paid by the Bailway Company for and on behalf of complainants. While the complainants might have amended their bill after the coming in of the answers and set up the contract at length the allegations of the bill sufficiently allege the general terms of the contract which sustains the decree.

There is no averment in the bill either that the contract was made or that the work was performed in the state of Indiana or that the legal rate of interest in Indiana is six per cent., although the evidence shows that the contract was made and the work was all done in Indiana and that the legal rate of interest in Indiana is six per cent. The appellant has neither assigned error on the question of interest or mentioned that question in its argument and any error, if there be any on that question, .is waived.

The appellees presented a claim for $187.85 for extras with interest thereon amounting to $60.17. The claim for the principal sum of the extras was disallowed but the appellees admit that through some oversight the item of $60.17 interest is included in the decree. The decree is therefore excessive and erroneous to that amount. The appellees in their argument consent to an order for a remittitur of the sum of $60.17. The decree is therefore affirmed for the sum of $5,697.25 at the costs of appellee.

Decree affirmed in part.

Affirmed.


text:
    Mary E. Gard, Administratrix, v. Chicago & Alton Railroad Company, Appellant.

      Railroads—when verdict is contrary to the evidence. Where plaintiff's intestate, a boy of fifteen, while standing on the west track of defendant’s double track waiting for a freight train to pass on the east track, is struck by an engine running on the west track, and the evidence shows that intestate had good eyesight and hearing, was familiar with the surroundings and that his view of the engine which struck him was unobstructed, intestate’s want of ordinary care is shown to he the cause of his death and a verdict in favor of plaintiff cannot be sustained.
    Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed March 18, 1913.
    Patton & Patton, for appellant; Silas H. Strawn, of counsel.
    L. F. Hamilton and C. J. Christopher, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Mary E. Gard, administratrix of the estate of William P. Gard, deceased, brought this action in case against the Chicago & Alton Railroad Company to recover damages suffered by reason of the death of her son, William P. Gard. The declaration contains several counts averring that the defendant operates a railroad in the city of Springfield, across a public street called south Grand avenue, well knowing that a great number of persons on foot and otherwise were constantly on said avenue passing across said railroad track; that a locomotive with a car attached to the front end was being driven southerly toward said avenue with the rear end of the engine being driven in front, and that the deceased while walking on said avenue in the exercise of due care was struck by said locomotive and killed. The negligence averred in the several counts is that a flagman at the crossing failed to warn the deceased of the approach of the train; that the train was run at a high and dangerous rate of speed; that the ordinances of the city of Springfield limit the speed of passenger trains to not exceeding ten miles an hour, and freight trains or cars to not exceeding six miles an hour, and that a freight train running at to-wit, ten miles an hour struck and killed the intestate; that defendant failed to ring a bell or blow a whistle; and that the defendant failed to have bars or gates at the crossing of Grand avenue. The plea was the general issue. A jury returned a verdict in favor of plaintiff for $4,500 on which judgment was rendered and the defendant appeals.

It is insisted that the court erred in refusing to direct a verdict for the defendant for the reason that the deceased was not in the exercise of due care at the time of the accident.

The evidence shows the facts to be, that the defendant has a double track railroad running on Third street, which is a street running north and south and paved between a curbing just outside the tracks and the curbing near the sidewalks, so that travelers drive north and south on that street; that the west track is used by trains going south, and the east track by trains going north; that Grand avenue crosses Third street and the defendant’s tracks at right angles; that the deceased at the time of the accident was a boy of the age of fourteen years and five months, who lived on the east side of the railroad; that on the morning of the accident he crossed the tracks to go to a pasture on the west side of the railroad and south of Grand avenue to milk the family cow; that after milking the cow he started home going through a hole in the fence from the pasture to Third street a few feet south of Grand avenue and carrying his pail walked north to Grand avenue and east towards the railroad tracks. At that time a long freight train, with the hell ringing and making much noise, was passing north across Grand avenue on the east railroad track; that a flagman at the crossing was on the east side of the freight train,” he having gone to that side of the train so as to notify travelers on the street coming from the east; if it was safe for them to cross the tracks after the freight train had passed; that an engine was hacking south going at the rate of between six and ten miles an hour, on the west track pulling a freight car; that the deceased from where he came through the fence had a clear, unobstructed view north along Third street of the south-bound track for upwards of a mile; that as the engine approached Grand avenue the fireman was on the west side of the engine and the engineer on the east side; that the fireman ■ as the engine approached the avenue saw the hoy walking east towards the track and thought the boy would walk up to within a few feet of the track and stop and when he saw he was not going to stop he shouted to the engineer to stop and shouted at the deceased; and that the tank on the tender concealed the boy from the engineer and he did not hear the shout of the fireman until the hoy was struck.

There is a conflict in the evidence as to whether the hell on the locomotive that struck the deceased was ringing. There is evidence by witnesses that they did not hear the bell ringing, but the preponderance of the evidence appears to he that it was ringing but the noise of the freight train drowned the sound of the bell on the engine that struck the deceased.

The flagman on the east side of the freight train saw the deceased approaching from the west through the spaces between the cars as they passed, but was unable to notify the deceased of the danger because of the intervening train.

The deceased was in his fifteenth year, with good eyesight and hearing, intelligent and familiar with the surroundings and the running of trains over these tracks. The view of the train which struck him was unobstructed. It was running in bright daylight in the direction that trains ran upon that track, and he appears to have kept his head turned, so that he could only see in the direction from which trains did not come on that track. There was no occasion for hastily going on the south-bound track and no inducement or incentive for going on that track as he could not cross the other track because of the train going north on it. The deceased without any excuse negligently stepped in front of the approaching train which at a speed, not exceeding from six to ten miles an hour was running in the proper direction on its track, when the slightest care would have revealed its approach to him. It is clear that his want of ordinary care was the proximate cause of his death, and the judgment cannot be sustained. It is therefore reversed with a finding of fact.

Reversed with finding of fact.

Finding of fact: The deceased was not in the exercise of ordinary care at the time he was struck by the train.