text:
    Herman Pierik et al., trading as Herman Pierik & Company, Appellants, v. Erhardt Mueller, Appellee.
    1. Payment, § 29

      —when evidence sufficient to show that note was given in payment of subscribed shares of stock. In an action . on a promissory note, made by a subscriber to stock in a proposed corporation by the indorsee thereof, evidence held to authorize a finding that the note was given in payment of subscribed shares and not in return for a loan made to-the subscriber by an agent of the promoters, though the note was, by such agent, made payable to the promoters.
    2. Bills and notes—-when burden of proof on plaintiff to prove indorsement of note. Where a promissory note payable to a proposed corporation for stock subscriptions, bearing the indorsement of the corporation to the order of hearer, was sued upon hy the transferee, a plea denying such indorsement held to throw the burden of proving the indorsement on the plaintiff.
    3. Corporations, § 27*—when promoters may not dispose of notes given for stock subscriptions. The promoters of a corporation have no authority to dispose of notes given for stock subscriptions until all the stock has been subscribed and the stockholders have elected officers.
    4. Bills and notes, § 327*—what defenses available against transferee of note improperly indorsed. Any defense available against the payee of a promissory note, not properly indorsed by him, is available in an action by a transferee thereof.
    5. Bills and notes, § 407*—who has burden of proof to show failure of consideration. In an action against the maker of a promissory note, the burden of proving failure of consideration is upon the defendant.
    6. Bills and notes, § 56*—what constitutes failure of consideration for note. Failure to organize a corporation amounts to a failure of consideration for a note given in payment of stock subscribed.
    Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    George M. Morgan and James T. Kelly, for appellants. .
    Barber & Barber, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Herman Pierik, James A. Hall and Charles G. Wineteer, partners under the name of Herman Pierik & Company, plaintiffs, brought suit against Erhardt Mueller upon two promissory notes, dated June 30, 1911, made by Mueller. One is for $250 payable te plaintiffs, the other is for $500 payable to the Western States Life Insurance Company. The declaration consists of a special count on each note and the common counts. The defendant filed a plea of the general issue, special pleas setting up a defense of total failure of consideration to both notes, a plea of fraud and deceit on the part of plaintiff Hall, and a verified plea denying the indorsement of the $500 note.

The pleas of failure of consideration aver that plaintiff Hall induced defendant to subscribe for twenty-five shares of the par value of $10 per share, at three times its face value, of the capital stock of the Western States Life Insurance Company, then being organized under the laws of Illinois with a total capital of $300,000, and to give the promissory notes in question for said stock; that at the time the notes were given the full amount of the capital stock was not subscribed; that it never had been fully subscribed, and the organization of said corporation has been abandoned by its promoters. There was a verdict and judgment in favor of the defendant, and the plaintiffs appeal.

The evidence shows that in September, 1910, one E. G-. Kingsbury of Chicago, with other corporators, filed in the State Insurance Department, a declaration setting forth their intentions to organize a Life Insurance Company, and in October the declaration was approved by the State Insurance Superintendent.

The evidence for appellee tends to show that less than $25,000 of the total stock of $300,000 was ever subscribed, while one of the corporators or promoters, E. E. Lee Jones, who claimed to have been the vice-president of the company, testified that there was only $180,000 of the stock subscribed when the directors and officers were elected, and that the stock was never fully subscribed. The appellants claim to have subscribed for some of the stock and to have paid part of their subscriptions in cash and given notes for the remainder under an agreement that Hall and one Helmle, who was president of a bank in Springfield, should be elected directors.

The evidence of appellee is that Hall in June, 1911, solicited him to take stock in the company, told him that Hall and Helmle were directors and got him to sign the notes sued on. Hall testified that he told appellee that Helmle and he were to be elected directors and that he loaned to appellee $250 to, pay a cash subscription on the stock, and that he, Hall, paid said $250 to the promoter Jones and took the $250 note to his firm, while appellee testifies he never borrowed or talked to Hall about borrowing money from him or giving him a note, but says he signed the notes which Hall brought to him without reading them. In August, 1911, circular letters signed by Hall, Helmle and others as directors were sent to the stock subscribers calling a meeting of the stockholders to act on a proposition to consolidate with another life insurance company in Chicago. Hall and his partners claim that in September, 1911, their subscription was rejected, and that Kingsbury, one. of the promoters, who it is stated had been elected president of the company, indorsed the $500 note made by appellee with some other notes to appellants in repayment of their cash subscription. The indorsement is made by a stamp and is: ‘Without recourse pay to the order of bearer,’ Western States Life Insurance Company.” In February, 1912, the assets of the Western States Life Insurance Company were transferred to the Herman National Life Insurance Company; that most of the subscribers to stock in the former company took stock in the latter company, and the organization of the Western States Life Insurance Company was wholly abandoned.

The appellants contend that the promoters of a life insurance company, under section 176 of chapter 73 of the Statutes of Illinois (J. & A. ¶ 6453), may proceed to collect for the capital stock; sell notes taken on stock subscriptions before the stock is fully subscribed; that the promoters may elect directors, and that the company can be organized before all the stock is subscribed, and cite Blinn v. Riggs, 110 Ill. App. 37, in support of such contention. The citation does not support such construction of the statute but holds the organization is complete when three certain things have been done, the third of which is “the subscription of its capital stock and election of directors. It may then proceed with the collection of subscriptions, opening offices,” etc. It has also been held in this State that, until the whole amount of stock of a corporation has been subscribed, the corporation cannot be organized or have a legal existence. McCoy v. World’s Columbian Exposition, 186 Ill. 356. There is no liability on a subscription to the stock of a corporation, the amount of whose capital stock is fixed until the whole amount of the stock is subscribed. Temple v. Lemon, 112 Ill. 51; Allman v. Havana, R. & E. R. Co., 88 Ill. 521. “It is equally plain that a note given in payment of stock in a corporation to be organized cannot be enforced by the payee or his assignee with knowledge when the corporation is not organized.” Thompson on Corporations, sec. 542; Watson v. Donald, 142 Ill. App. 110, 10 Cyc. 265.

Appellant, Hall, by his own evidence, acknowledges that he was aiding the promoters in getting subscriptions to the stock of the company and, from the evidence of appellee, he was the agent who procured the subscription of appellee and the notes sued on. Appellee says he signed them because of the statements of Hall whom he had known all his life. Appellee admits the signature to the note to appellants is his, but testified he had no talk with Hall about borrowing any money from him, or concerning appellants paying any money to the company for him. Under the evidence the jury were authorized in finding that the $250 note was given for part of appellee’s subscription to the stock as was the $500 note and that Hall, for some reason of his own, had the $250 note made to the appellants instead of the proposed corporation.

The plea denying the indorsement of the $500 note placed the burden of appellants of proving that the indorsement was made by the corporation. The corporation could not do any business before it was organized. The promoters had no authority to dispose of notes made on stock subscriptions until the stock had all been subscribed and the stockholders had elected officers. Promoters only after the completion of the corporation and their election as officers had the right to transfer assets that would be the property of the corporation when its organization might be completed. 10 Cyc. 262; Western Screw & Mfg. Co. v. Cousley, 72 Ill. 531; Gent v. Manufacturers & Merchants’ Mut. Ins. Co., 107 Ill. 652.

The stock never having been fully subscribed, the corporation was not completed and there was no officer authorized to indorse the $500 note. The note not having been legally indorsed, appellants were not bona fide holders, and it was subject to any defense against appellants that it was liable to if suit had been brought in the name of the proposed corporation.

The burden of showing a failure of consideration for the notes was upon appellee. The meritorious defense is that no corporation was organized and hence the consideration has failed. The proof shows clearly that the stock was never fully subscribed and that there was not even a de facto corporation. The pseudo corporation never pretended to transact any business in the line for which it was proposed to organize a corporation. This suit being on notes given on a subscription for stock, the consideration of which was the organization of the corporation, the inquiry may extend to the question whether there was due compliance with all the requirements of the law. Hudson v. Green Hill Seminary Corporation, 113 Ill. 618. The evidence showing the stock was not fully subscribed and that the organization of the corporation was abandoned there was a total failure of consideration, and no other verdiet than in favor of appellee conld be sustained on the $500 note.

Error has been assigned and argued on the giving and refusing of certain instructions, but what has been said covers the several points argued. Finding no error in the case the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    J. W. Livergood, Appellee, v. Stonington Coal Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by J. W. Livergood, plaintiff, against Stonington Coal Company, defendant, for injuries to certain lots alleged to have been caused by improperly removing coal from thereunder. From a judgment for plaintiff, defendant appeals.
    During the trial it was discovered that plaintiff had misdescribed the lots, and an amended declaration was filed describing all the lots by different numbers from the description in the original declaration. Thereupon an additional plea of the Five-year Statute of Limitations was filed.
    W. B. McBride, for appellant.
    John E. Hogan, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1466 —when admission of improper evi dence harmless error. In an action for damages resulting from the sinking of land alleged to have been caused by the defendant’s removing a substratum of coal without leaving sufficient surface support, admission of evidence that other land, adjacent to and between the plaintiff’s land and the defendant’s mine shaft, also sank, held improper in the absence of evidence that all the land sank at the same time, but, however, harmless error.

2. Mines and minerals, § 60*—when evidence sufficient to support verdict in action for damages for negligent' removing of substratum. In an action for damages to land from sinking alleged to have been caused by the defendant’s removing a substratum of coal without leaving sufficient surface support, evidence held sufficient to support a verdict for the plaintiff.

3. Mines and minerals, § 60*—when requested instruction properly refused. In an action for damages to land from sinking, alleged to have been caused by the defendant’s removing a substratum of coal without leaving sufficient surface support, a requested instruction for the defendant which stated that the plaintiff could not recover unless the proof showed that the defendant intentionally injured the plaintiff’s land, held properly refused, though the declaration alleged “that the defendant contriving and unjustly intending to, injure,” etc., negligently mined, etc., inasmuch as such words in the allegation were mere surplusage and a cause of action was stated without them.

4. Mines and minerals, § 60*—when requested instruction properly refused. In an action for damages to land from sinking, alleged to have been caused by the defendant’s removing a substratum of coal without leaving sufficient surface support, the refusal of an instruction requested, by the defendant, to the effect that damages could not be given for depreciation of buildings on the land caused by lack of repair and natural decay, -held not error where the only evidence of depreciation introduced was that the buildings had not been kept painted, and there was no evidence as to the amount of such depreciation, and other instructions fully informed the jury as to the measure of damages under the facts shown.


text:
    Herman Hysler, Appellant, v. Board of Education of Springfield School District No. 186 et al., Appellees.
    1. Schools and school districts, § 66

      —when propositions to purchase site and erect building not carried by majority vote. Where at a general election propositions to purchase a school site, to build a new school building, and to issue bonds for such purposes, were submitted along with other propositions, and the votes in favor of none of the school propositions amounted to a majority of the total number of votes cast at such election, held that the school propositions were lost and no authority was conferred on the Board of Education to act thereunder, although such propositions were submitted on a separate ballot from those on which the other propositions were submitted.
    2. Schools and school districts, § 65*—when a board of education may be enjoined from using funds of district. A board of education may be enjoined from using the funds of the school district for buying schoolhouse sites or building schoolhouses thereon when they have not been authorized to do so by a vote of the people.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard’ in this court at the April term, 1915.
    Reversed and remanded with directions.
    Opinion filed October 13, 1915.
    B. L. Catron, for appellant.
    M. U. Woodruff and Wilson, Warren & Child, for appellees.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Herman Hysler, a resident and taxpayer in Springfield School District No. 186, filed a bill in chancery against Springfield School District No. 186, and the Board of Education and officers of said School District, praying an injunction restraining the said Board of Education from expending the funds of said district for the purchase of a certain new schoolhouse site, and from building a schoolhouse thereon. The defendants answered the bill and npon a hearing the Circuit Court denied the injunction and dismissed the bill for want of equity. The complainant prosecutes this appeal.

There is no controversy over the facts alleged in the bill. The City of Springfield and Capitol Township comprise the same territory. Springfield School District No. 186 includes all the territory within the City of Springfield and certain other territory adjacent to the City of Springfield. The district has, by the last Federal census, more than 35,000 inhabitants and less than 100,000. It exists by virtue of a special charter, is governed by a board of education consisting of seven members elected and qualified, and is vested with the powers and duties provided by the general school laws of the State for such boards of education. Schools are maintained in many school buildings, one of which is maintained and conducted on a site known as Douglas site. In February 1914, the Board of Education, by resolution, declared the Douglas site to be unsuitable and unfit for a school site.

On March 2, 1914, a petition, signed by more than 500 legal voters of the district, was filed in the office of the Board of Education asking the board to call an election for the purpose of submitting to the voters, two propositions: (1) To acquire by purchase as a school site for the Douglas school certain premises about 1,600 feet from the present Douglas school building, and (2) to build a schoolhouse on said new site. This petition was referred to a committee. At a meeting of the board on March 16th, majority and minority reports were filed by members of the committee. The majority report recommended that an election be called on April 7,1914, submitting to the voters said proposition with the further proposition of issuing bonds to the amount of $100,000 for such purposes; the minority report recommended that the petition be denied. On a vote the resolution recommended by the minority report was defeated. A resolution was then adopted that when the board adjourned, it adjourn to March 20th, at 5 o’clock. It was then moved and carried that consideration of the resolution to adopt the majority report be postponed to the meeting of March 20th.

On March 20th, another petition signed by more than 500 voters was filed with the Board of Education requesting that an election be called to vote on the proposition to build a new schoolhouse on the present site of the Douglas school. At the adjourned meeting of the board held on March 20th, the report of the majority of the committee presented on March 16th was adopted and the attorney of the board instructed to present to it at its next meeting a resolution for the submissions of the questions to the people. At the same meeting a resolution was adopted “that it be the sense of the board that the prayer of the petition known as the Patterson petition (the petition filed. March 20), be granted and that the attorney of the board” present to it at its next meeting a resolution for the submission of such questions to the people.

At a meeting of the board on March 21st, a resolution was adopted ordering the names of the candidates for members of the board to be certified to the Board of Election Commissioners of the City of Springfield to' be placed on the ballots to be voted at the election in the district on April 7th, which was the day fixed by the statute for such election, and a resolution recommending the submission to the voters of the question of building a new schoolhouse on the present Douglas school site was declared lost.

On April 7th, the regular election in the Springfield School District for members of the Board of Education was held and also the election on the propositions to purchase the new proposed site, build the new school on the proposed new site and issue $100,000 of bonds for such purposes. There was also held at the same time in the City of Springfield an election on the local option question. The election in the City of Springfield was conducted by the Board of Election Commissioners. In the territory in the Springfield School District without the City of Springfield the election was conducted by the Board of Education.

The poll books used at the election were introduced in evidence and show that in the said school district 22,901 voters went to the polls and voted. Each voter in that part of the territory within the City of Springfield on going to the polls was given a ballot containing .the candidates for members of the Board of Education, a ballot containing the propositions for and against said proposed new school site, the erection of a new schoolhouse, and the issuing of bonds, and a ballot containing the names of caildidates for township officers and the local option proposition. There was no ballot concerning the building of a new schoolhouse on the site of the old Douglas school building.

There were 9,152 votes cast in the district for purchasing the new site, and 7,267 votes against purchasing the new site. There were 8,860 votes cast for building a new schoolhouse and 6,865 votes against building a new schoolhouse, and there were 8,759 votes cast in favor of issuing bonds as proposed, and 7,296 votes cast against issuing bonds.

Every voter in the City of Springfield who went to the polls and voted on any of the questions submitted, or for members of the board, or for township officers, or on the local option question was given ballots on all the questions and had the right to vote on all such matters. In the territory in the district outside the city every voter was given ballots on the propositions and other ballots containing candidates for members of the Board of Education. Out of 22,901 voters who' went to the polls, only 16,419 voted on the proposition to buy the proposed new school site, 17,625 vbted on the proposition to build a new schoolhouse and 16,055 voted on the proposition to issue bonds.

It is conceded that the Board of Education of the Springfield School District, while it is created by a special charter, yet it is governed by and is subject to the general school law applicable to such boards of education with respect to acquiring schoolhouse sites, building schoolhouses and issuing bonds.

Section 119 of chapter 122 of the Revised Statutes (J. & A. ¶ 10140) provides: “It shall not be lawful for a board of directors to purchase or locate a schoolhouse site, or to purchase, build or move a schoolhouse, or to levy a tax to extend schools beyond nine months, without a vote of the people at an election called and conducted as required by section 198 of this act. A majority of the votes cast shall be necessary to authorize the directors to act. If no locality shall receive a majority of the votes, the directors may select a suitable site. The site selected by either method shall be the school site for such district.” •

Paragraph 5 of section 127 of the School Law (J. & A. ¶ 10148) governs boards of education in districts of over 1,000 and less than 100,000 inhabitants. This paragraph contains the same provisions as section 119 concerning the powers, limitations and duties of boards of education in regard to buying' sites for schoolhouses and building schoolhouses.

It has been held that “where a proposition is submitted to the voters at a general election it must receive a majority of all the votes cast at the election in order to carry, unless the statute providing for its submission specifies that a majority of the votes cast upon the particular proposition shall be sufficient.” People v. Weber, 222 Ill. 180; Chestnutwood v. Hood, 68 Ill. 132; People v. Wiant, 48 Ill. 263; People v. Brown, 11 Ill. 479. In the Weber case, supra, the vote was regarding the question, of whether the Village of West Chicago should become a city organized under the general city and village act. The statute provides that such an election may be held either at a general or at a special election. The election was called at a general election. To effect such a change the statute requires a majority of the votes cast at such election to be for organization under the general law. There were cast at the general election 458 votes for village officers. There were cast 163 votes for organization under the general law and 96 against. It was held that the proposition to organize under the general law did not carry.

In this case the fact that the school propositions, the names of the candidates for members of the Board of Education, and township officers with the local option question were on separate ballots cannot reduce the number of votes that must be cast in favor of the school propositions in order that they might be adopted, while the vote on the school proposition being held at the same time with the other propositions might increase the number of votes necessary for their adoption, just as occurred in the West Chicago case. •

Since 22,901 voters went to the polls, 11,451 votes in favor of any proposition were necessary to carry such proposition. The largest number of votes cast in favor of any of the propositions was 9,152 in favor of purchasing the new site. It is not contended either that the question of voting upon the purchase of any other site was submitted to the voters for their approval, or that any votes were cast in favor of or against the purchase of any other site, or for or against building on any other site, and from the canvass and returns of the votes cast, over 5,000 voters appear not to have voted on the school propositions. The propositions to purchase the proposed new school site and build a new schoolhouse thereon failed to receive a majority of the votes cast at such election and were not authorized by the voters.

Boards of education may be enjoined from using the funds of the district for buying schoolhouse sites or building schoolhouses thereon when they have not been authorized to do so by a vote of the people. Kiehna v. Mansker, 178 Ill. 15; School Directors v. People, 90 Ill. App. 670.

A majority of the votes cast at the election on April 7th, not being in favor of the propositions, we do not deem it necessary to pass upon other questions presented and argued, as there have been changes in the statute law since the election in controversy was held, aiM the question reviewed is decisive of this cause.

The decree of the Circuit Court is reversed and the cause remanded with directions to the trial court to grant an injunction enjoining said Board of Education and its officers from expending the funds of said district in purchasing said proposed site and in building a schoolhouse thereon under the election held April 7, 1914.

Reversed, and remanded with directions.


author: Mr. Presiding Justice Eldredge

text:
    John Barnes, Appellee, v. National Live Stock Insurance Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Moultrie county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1915. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 27, 1915.
    Statement of the Case.
    Action in assumpsit by John Barnes, plaintiff, against National Live Stock Insurance Company, defendant, to recover under an insurance policy insuring plaintiff against loss by death from accident, disease, theft and fire of a certain stallion. From a judgment for plaintiff, defendant appeals.
    Defendant’s special plea, in substance, averred that the policy contained a provision that the perils indemnified against do not include death from any cause where the assured does not render forthwith by telegraph or telephone to defendant notice of any sickness or accident with which any animals insured may become afflicted; that the stallion mentioned was accidentally injured on or about the 28th day of April, A, D. 1914, and that the plaintiff failed to render forthwith by telegraph or telephone to the company notice of such accident, and that therefore by the terms of the policy defendant was not liable.
    Raymond D. Meeker and Mitchel S. Meyberg, for appellant.
    E. J. Miller, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 846 —What is effect of failure of trial fudge to sign hill of exceptions in time for filing.' Where a party has presented his bill of exceptions to the trial judge for his signature within the time fixed for filing the same, he has done all he can do and will not be prejudiced by the failure of the judge to sign it in time to have it filed within the period prescribed for that purpose.

2. Appeal and error, § 846*—when hill of exceptions should he filed nunc pro tunc as of date of tender to fudge. The proper practice where the trial judge has failed to sign the bill of exceptions in time to have it filed within the period prescribed for that purpose is to have it filed nunc pro tunc as of the date when it was tendered to the judge for his signature.

3. Appeal and error, § 1712*—when errors deemed waived. All errors assigned upon the record which are not presented and argued in the brief are deemed waived.

4. Appeal and error, § 1303*—when presumed that verdict and fudgment are sustained hy evidence. Where the bill of exceptions fails to state that it contains all the evidence introduced in the trial, the presumption will be indulged that the verdict and judgment are sustained by the evidence.

5. Insurance, § 120*—how provisions in policies construed. Provisions in insurance policies are construed most strongly in favor of the insured.

6. Insurance—when special plea as to release from liahility on policy on animal because of failure to give notice of accident had. In an action to recover for the death of a stallion under a policy-insuring against loss by death from accident, disease, theft and fire, a special plea averring that defendant was relieved from liability because the insured did not render forthwith by telegraph or telephone to defendant notice of the accident as provided by the policy, held bad on demurrer, as' it did not aver any connection between the injury and the death of the stallion.


text:
    Joseph Stocks, Appellee, v. Woodrow-Parker Company. Byron B. Burns, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Injunction, § 35

      —when pendency of suit at law not ground for temporary injunction. The pendency of a suit at law against the complainant to a bill for a temporary injunction enjoining tb.e prosecution of such suit is not ground for the granting of the injunction, where the complainant states in his bill that he had a good defense to such action.

      Appeal from the Circuit Court of Moultrie county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed October 27, 1915.
    Statement of the Case.
    Bill by Joseph Stocks, complainant, against Woodrow-Parker Company and Byron B. Bums, defendants, praying that the prosecution of a suit in assumpsit by Joseph Stocks against Woodrow-Parker Company and Bichard S. Woodrow, and a suit in assumpsit by Byron B. Bums against Joseph Stocks to recover on a note executed by Joseph Stocks to Woodrow-Parker Company and indorsed without recourse to Byron B. Bums; that the contract on which the note in the latter case was based and the note be canceled, and that the sum claimed in the former suit be ordered returned to complainant. From an interlocutory order overruling a motion to dissolve a temporary injunction, which was granted, defendant Byron B. Burns appeals.
    E. J. Miller, for appellant.
    Frank M. Harbaugh, Edward C. Craig, Donald B. Craig and James W. Craig, Jr., for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

2. Injunction, § 15*—when pendency of suit at law not ground for granting of temporary injunction. The pendency of a suit at law by the complainant to a bill for a temporary injunction enjoining the prosecuting of such suit is not ground for the granting of the injunction, as such suit is under the control of complainant.


text:
    The Heberling Medicine & Extract Company, Appellant, v. S. Owen Smith and William E. Alderson, Appellees.
    1. Guaranty, § 17

      —when guarantors entitled to notice of default of principal debtor. Where a guaranty is a collateral, continuing one, the guarantors are entitled to a reasonable notice of the default of the principal debtor unless they expressly or impliedly waive notice, or unless the circumstances are such that they are not prejudiced for want thereof.
    2. Guaranty, § 17*—when notice of default sufficient. Where a contract of guaranty contains no provision for notice of default by the debtor it is sufficient if a notice of default be given within a reasonable time after such default.
    3. Guaranty, § 17*—when notice of default unnecessary. A creditor is not required to give notice of default by the debtor to the guarantors where the guarantors have notice from an independent source.
    4. Guaranty, § 17*—when failure to give notice of default within reasonable time after default not absolute defense. The failure of a creditor to give notice to a guarantor of default of the debtor within a reasonable time after such default is not an absolute defense to the action, but can only be availed of to the extent that the guarantor may have sustained loss or damage as the result of such failure to notify.
    5. Guaranty, § 17*—what is reasonable time in which to give guarantor notice of default of debtor." What is a reasonable time in which to give notice to a guarantor of default of the debtor depends upon the circumstances of each case.

      6. Guaranty, § 34

      —when burden of proof on guarantor. Where a guarantor seeks to relieve himself from liability upon the ground that notice of the default was not given him within a reasonable time, the burden rests upon him to show the failure to give the notice, and the consequent injury by the loss of the whole or part of the debt for which he stood as surety.
    7. Guaranty; § 9*—how contract of construed. A contract of guaranty should be strictly construed in regard to the subject-matter of the guaranty, and in this respect the guarantor is bound only under the circumstances pointed out in the guaranty and no further, and his liability cannot be extended by implication, but in all other respects the contract is to be construed as favorable to the creditor as other written contracts.
    8. Guaranty, § 21*—when not avoided by extension of time to debtor. Where a contract for credit between a wholesaler and retailer of goods provides that the latter shall remit one-half of his receipts from his business each week until his account is balanced, but it has no period of limitation and is to continue during the satisfaction of both parties, and a continuing contract of guaranty provides that any extension shall not release the guarantors from liability, such contracts must be construed as authorizing such extension of time by the creditor to the debtor to make payments as the former sees fit without avoiding the contract of guaranty.
    Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed.
    Opinion filed April 21, 1916.
    James B. Searcy and Charles H. Woods, for appellant.
    Edward C. Knotts and Peebles & Peebles, for appellee.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

On March 27,1909, one W. C. Hagler, of Carlinville, Illinois, entered into a written contract with appellant for the purchase on credit at wholesale prices of medicines and other extracts manufactured by the latter. By the terms of the contract Hagler agreed to pay for all goods purchased thereunder an amount equal to one-half the receipts from his business each week, and to submit to appellant weekly reports of his business, provided, however, if he paid his account in full by the 10th day of each month he was to be allowed a discount of five per cent.; upon termination of the contract by either party, he agreed to settle in cash within a reasonable time the balance due appellant on account; appellant agreed to fill his reasonable orders provided his account was in satisfactory condition; the contract was subject to acceptance and was to continue in force so long as Hagler’s account and the amount of his purchases were satisfactory to it, provided, however, that said Hagler or his guarantors might be released from the contract at any time by paying in cash for balance due appellant on account.

To this contract was attached the following contract of guaranty which was signed by appellees: “In consideration of The Heberling Medicine &' Extract Company extending credit to the above named person we hereby guarantee to it, jointly and severally, the honest and faithful performance of the said contract by him, waiving acceptance and all notice, and agree that any extension of time or change of territory shall not release us from liability thereon.” Below the signatures of appellees were the following words: “The above guarantors are entitled at any time upon request to a statement of account.”

The suit is brought to recover upon this contract of guaranty the sum of $401.87, the amount Hagler was in default on his account with appellant. Appellees filed two special pleas, the first of which avers that appellant never gave them notice of Hagler’s default, and the second, that appellant did not give notice of Hagler’s default prior to the termination of the contract. A demurrer to these pleas was overruled and appellant elected to reply thereto and filed replications presenting the issues, first, that notice of said default was given to appellees within a reasonable time thereafter; second, that no damage resulted to appellees by failure to receive such notice; and third, that appellees in and by their contract of guaranty expressly waived such notice. To these replications appellees filed rejoinders putting themselves upon the country. Under these pleadings the cause was tried before the court without a jury, who rendered judgment in favor of appellees. No question is raised in this court in regard to the pleadings, and the case will be considered upon the contentions as submitted by the parties in their briefs.

The guaranty in this case is a collateral, continuing one, and the guarantors were entitled to a reasonable notice of the default of the principal debtor unless they had expressly or impliedly waived such notice, or unless the circumstances were such that they were not prejudiced for want thereof. Mamerow v. National Lead Co., 206 Ill. 626; Taussig v. Reid, 145 Ill. 488. The undisputed proofs show that Hagler discontinued purchasing goods from appellant August 28, 1911; that the contract between him and appellant terminated at that time, and on this date he was owing appellant $401.87. The proofs further show that on September 1, 1911, Hagler informed appellee Smith that he was in default in his payments to appellant and was unable to pay the balance, was .out of business and had no money. Appellee Alderson testified that Hagler notified him of the same facts, in substance, some time in September, but could not remember the exact date. On October 11, 1911, appellant notified both appellees in writing of the default. It is contended by appellant that the words in the guaranty in the phrase “waiving acceptance and all notice,” mean a waiver of notice of default, while appellees contended that they mean only a waiver of notice of acceptance. If it be conceded that the latter construction of these words is the correct one, it is unavailing as a defense to this suit, for the reason that appellees had notice of the default within a reasonablé time thereafter. If the notice of October 11th should not be held to have been given within a reasonable time, appellees had notice of the default within four days thereof from the debtor himself, and a creditor is not required to give notice of default to a guarantor where the guarantor has notice from an independent source, as the law does not require a useless act. Mamerow v. National Lead Co., supra. Furthermore, the failure to give such notice to a guarantor is not an absolute defense to the action, but can only be availed of to the extent that the guarantor may have sustained loss or damage as the result of such failure to notify. Taussig v. Reid, supra; Mamerow v. National Lead Co., supra; Swisher v. Deering, 204 Ill. 203.

What is a reasonable time in which to give such notice must depend upon the circumstances in each particular case. Taussig v. Reid, supra. If a guarantor seeks to relieve himself from liability upon the ground that notice of the default was not given him within a reasonable time, the burden rests upon him to show the failure to give the notice, and the consequent injury by the loss of the whole or part of the debt for which he stood as surety. Mamerow v. National Lead Co., supra. No evidence whatever was offered by appellees showing that they were in any way injured or suffered any loss by failure to receive an earlier notice of default.

It is urged by appellees, however, that a contract of guaranty should receive a strict construction, and that as the contract between appellant and Hagler provided that the latter should remit one-half of his receipts from his business each week until his account was balanced, it was the duty of appellant to notify them of the default of Hagler every time he failed to make such weekly remittance. The contract of guaranty in this case will not bear such a construction. A contract of guaranty will receive strict construction in regard to the subject-matter embraced in the guaranty, and in this respect the undertaking of a guarantor is to be considered strictly and he is bound to the extent and in the manner and under the circumstances pointed out in his obligation and no further, and his liability is not to be extended by implication. John A. Tolman Co. v. Rice, 164 Ill. 255; Phoenix Mfg. Co. v. Bogardus, 231 Ill. 528. But in the construction of the contract in all other respects it is to be considered as favorable to the creditor as other written contracts. Taussig v. Reid, supra; Swisher v. Deering, supra. In the contract in this case, appellees agree that any extension of time shall not release them from liability thereon. The contract between Hagler and appellant had no period of limitation, but was to continue during the satisfaction of both parties, consequently, the clause in regard to any extension of time could refer only to the extension of time for making payments. Considering both contracts together, no other reasonable construction could be applied thereto, and appellant had the right to extend time to Hagler in which to make his payments if it so saw fit without such action on its part avoiding the contract of guaranty.

We fail to see how appellees have made any defense "whatever to this action, and as the case was tried before the court without a jury, the judgment of the Circuit Court is reversed and judgment is" entered in this court in favor of appellant and against, appellees in the sum of $401.87 and costs.

Reversed.


text:
    State Bank of Mansfield, Defendant in Error, v. Gabriel C. Stauffer, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Piatt county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Judgment by confession by the State Bank of Mansfield, plaintiff, against Gabriel C. Stauffer, defendant. From a judgment overruling a motion by defendant to vacate the judgment and be allowed to plead, defendant brings writ of error.
    This motion was supported by defendant’s own affidavit, which, in substance, stated that on October 28, 1914, he- filed a bill in equity on the chancery side of said Circuit Court calling for an accounting by the bank with him, which bill was made a part of the affidavit, and that the contents of the bill were true; that he verily believed upon an accounting had between himself and the bank, said note would be shown to be without consideration and that the bank would be found to be indebted to him; that said bill was then pending and service had been had upon the defendants therein mentioned; that he verily believed that upon such accounting being had, it would be disclosed that he had a good defense to the whole of plaintiff’s cause of action.
    The bill of complaint referred to averred that the State Bank of Mansfield was the successor of another bank known as the Commercial Bank of Mansfield; that the latter bank was conducted as a copartnership in which William H. Firke and several other persons were associated together in the banking business as copartners; that complainant for a number of years prior to 1897, the date of the organization of the State Bank, had been a depositor and customer of the Commercial Bank, and after the latter was succeeded by the State Bank he continued to be a depositor, customer and patron of the State Bank; that for the past fifteen years said Firke has been president of the State Bank, and for'ten years the defendant Burns has been cashier thereof. The bill further averred that he had had trouble in getting his pass books from the State Bank, and alleged the amount of his income, etc.; that some time prior to the year 1913, the defendant Bums told him that he had overdrawn his bank account, and certain sums of money were due and owing from him to the State Bank, and requested him to give his note for said sum; that he did not remember nor could he state the beginning of the transactions following the first note given by him to the State Bank; that in February, 1913, Burns, the cashier, informed him that" he owed the State Bank $5,300, and asked him to give his note for that amount, and he thereupon executed the note in question in this case; that said State Bank through Firke and Bums were insisting that he pay said note, and unless he did pay it they would cause a judgment by confession to be taken thereon; that he was endeavoring to learn from the State Bank and said Firke and Burns the nature of the indebtedness and consideration for which the note was given, but the latter had refused to make him any statement ; that he verily believed said note to be without any consideration therefor.
    The bill made the State Bank, together with Firke and Burns, parties defendant and prayed that an accounting be taken of all the transactions and dealings of complainant from the time he commenced doing business with the defendants, or either of them, and that upon such accounting being taken that said bank, Bums and Firke or such of them as might be found to be indebted to him, might be decreed to pay bim what, if anything, might be found by such accounting to be due him; that he was willing and”ready to pay to the defendants, or either of them, any sums of money which might be found to be due from him to them upon • said accounting; that the defendants to said bill might be enjoined from entering up judgment upon said note, etc.
    Abstract of the Decision.
    1. Judgment, § 82

      —when affidavit in support of motion to set aside judgment by confession on note insufficient. On a motion to set aside a judgment by confession on a judgment note, an affidavit in support - of such motion held insufficient.
    2. Judgment, § 72*—when judgment by confession not opened up. A judgment by confession on a judgment note will not be opened up for the purpose of permitting a plea of set-off.
    3. Lis pendens, § 3*—when suit in equity pending. A suit in equity is not pending until the summons has been issued and an effort made to secure service.
    4. Abatement and revival, § 37*—when suit in equity not ground for abatement. Where a judgment by confession is entered before a summons is issued in a suit in equity, such suit is not a pending action so as to abate the suit at law.
    C. C. Le Forges and Elim J. Hawbaker, for plaintiff in error.
    C. W; Firke and Herrick & Herrick, for defendant in error.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    L. D. Jackson, Appellant, v. Arthur Stevens, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Libel and slander, § 56

      —when publication of libelous matter not privileged. While anything bearing upon the acts of a public officer connected with his office is a legitimate subject of statement and comment, yet the mere fact that a person may be a candidate for office does not create a license or justification of libelous matter to the injury of his character and reputation.
    2. Pleading, § 200*—what admitted by demurrer to declaration. Material allegations of a declaration are admitted by demurrer.
    3. Libel and slander, § 102*—what is effect of demurrer to declaration. Averments in a declaration for libel that defendant caused to be published falsely and maliciously in certain newspapers statements that plaintiff, who was a county clerk, had squandered the money of the county, and had made a gift of such money to another newspaper, being material averments, are admitted as true by a demurrer.
    Appeal from the Circuit Court of Ford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Action of libel by L. D. Jackson, plaintiff, against Arthur Stevens, defendant. From a judgment sustaining a demurrer to the declaration, plaintiff appeals.
    Schneider & Schneider, for appellant.
    Cloud & Thompson, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    J. A. McQuaid, Plaintiff in Error, v. City of Warsaw, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations, § 971

      —what is duty of municipality in regard to streets. The duty of a municipality in regard to its streets is to use reasonable care to keep them in a reasonably safe condition for the usual and ordinary methods of travel.
    2. Negligence, § 81*—when party guilty of contributory negligence. A party has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the use of reasonable precaution.
    3. Municipal corporations, § 978*—when street not unreasonably

      safe for travel. The mere fact that a stone a foot square with a smooth upper surface is imbedded in the ground beneath the traveled way of a steep hill, within the limits of a city and over which two or three inches of gravel and macadam have been placed in such a way that a heavy' traction engine might tear through the surface and rest upon the hard, smooth surface of the stone, does not render the street unreasonably safe for public travel.

      Error to the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action on the case by J. A. McQuaid, plaintiff, against the City of Warsaw, defendant, to recover damages for injuries to his person and to his steam traction engine and separator alleged to have occurred through the negligence of the city in failing to keep a certain street in a reasonably safe condition for public travel. From a judgment for defendant on a directed verdict, defendant brings error.
    O’Harras, Wood & Walker, for plaintiff in error. '
    Truman Plantz and Scofield, Helfrich & Califf, for defendant in error.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

4. Negligence, § 198 —when question for court. While questions of negligence and contributory negligence are ordinarily questions of fact, to be passed upon by the jury, yet when the undisputed evidence is so conclusive that it does not with all reasonable inferences tend to prove the cause of action, and the court would be compelled to set aside a verdict in opposition to it, the court may withdraw the case from the consideration of the jury and direct a verdict.

5. Municipal corporations, § 1233*—when statutory notice of accident must he averred and proved. The statute relative to the giving of notice, of personal injuries, to a city by filing in the office of the city attorney, if there is one, and also in the office of the city clerk, a statement in writing, signed by the injured person, his agent or attorney (J. & A. If 6190), is mandatory, and the giving of the notice is a condition precedent to the right to bring the suit, and it must be averred and proved • by the plaintiff to avoid a dismissal of the suit.

6. Municipal corporations—how failure to make averment and proof of giving of notice of injuries raised. The failure of a declaration in an action against a city for personal injuries to make averment of the giving of the notice of injuries required by J. & A. If 6190, and the failure to make proof of the giving of such notice may be raised by a motion to direct a verdict.

7. Municipal corporations, § 1225*—when service of notice of personal injuries insufficient. Under J. & A. If 6190, a notice of personal injuries must be filed with the city clerk, and also with the city attorney, if there is one, and in such case service of the notice on either one alone is insufficient.


text:
    John M. Wolf, Appellee, v. Horton Ellison, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision. .
    1. Bills and notes, § 440

      —when evidence sufficient to sustain verdict. In an action on a promissory note evidence held sufficient to justify a finding that the note was not materially altered after it was executed, that it was executed by the defendant and that neither it nor the note for which it was given, as a renewal, had been paid.
    2. Bills and notes, § 426*—when evidence as to ability of maker to pay unpaid note before outlawed inadmissible. Where suit on a promissory note had not been commenced until more than six years after the date of maturity, held that evidence as to the ability of the maker to pay it.during that period was inadmissible, since no presumption of payment arises from delay, amounting to less than the period limited by the statute of limitations, in proceeding to collect a debt of a living debtor.
    3. Bills and notes, § 426*.—when evidence as to ability of maker to pay unpaid note before outlawed inadmissible. Where suit was not brought on a promissory note until more than six years after the date of its maturity, evidence of the maker’s ability to pay it during that period held inadmissible, though the plaintiff had testified that the bringing of a suit at an earlier date would have been unavailing, since the reasons for failure to make an earlier attempt to collect was immaterial.

      Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by John M. Wolf, plaintiff, against Morton Ellison, defendant, on a promissory note. From a judgment for plaintiff, defendant appeals.
    Emery Andrews and Raymond G. Real, for appellant.
    Whitaker, Ward & Pugh, for appellee.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

4. Appear and error, § 1088 —necessity that brief refer to pages of abstract where rulings complained of appear. Where no reference is made in the brief to the pages of the abstract on which alleged erroneous rulings appear, they will not be considered on appeal.

5. Instructions, § 120*—when properly refused as not conforming to evidence. An instruction that the jury, in determining what facts were proven, should consider all the evidence before them, together with all the circumstances of the transaction in question, held properly refused, in that it did not limit the circumstances to be considered to those shown by the evidence.

6. Evidence, § 457*—when testimony at former trial not competent. Testimony of a present witness given on a trial is not competent evidence on a subsequent trial.

7. New trial, § 61*—when properly denied. Refusal to grant a new trial on the ground that the defendant was taken by surprise because the plaintiff testified differently than he did on a former trial, and that the defendant did not have time to obtain a transcript of such former testimony for use in impeachment held proper.


text:
    J. C. Graff and John Schultz, trading as J. C. Graff & Company, Defendants in Error, v. George Moench, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Gaming, § 43

      —when evidence sufficient to show that transactions are of gambling nature. In an action to recover a balance alleged to be due the plaintiffs on account of transactions made on the Chicago Board of Trade, held that the evidence showed that such transactions were gambling transactions, and that a verdict for the plaintiff was clearly and manifestly contrary to the weight of the evidence.

      Error to the Circuit Court of Schuyler county; the Hon. Gut R. Wiliuams, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Assumpsit by J. C. Graff and John Schultz, trading as J. C. Graff & Company, plaintiffs, against George Moench, defendant. To review a judgment for plaintiffs, defendant prosecutes a writ of error.
    The action was to recover an alleged balance due on account of deals transacted on the Board of Trade of Chicago and some items of merchandise sold and delivered by the plaintiff to the defendant. The evidence heard was substantially the same as appeared in the record on a former appeal, 181 Ill. App. 127.
    B. O. Willard and L. A. Jarman, for plaintiff in error.
    Glass & Bottenberg and Chiperfield & Chiperfield, for defendants in error.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

2. Trial, § 204*—when refusal to direct verdict is error.' In an action of assumpsit, covering several items, the refusal of the trial court to direct, at the defendant’s request, a verdict against him on a certain item for which the evidence showed him liable, held error.


text:
    D. M. Tucker, Appellee, v. Charles Warner and Elizabeth Warner, Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    Master and servant, § 84

      —when evidence sufficient to support verdict in action for services. In an action for labor performed by the plaintiff on the defendants’ farm, evidence, which was conflicting on the question as to what were the terms of the contract, held sufficient to support a verdict for the plaintiff.
    Appeal from the County Court of Champaign county; the Hon. Roy C. Freeman, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Assumpsit by D. M. Tucker, plaintiff, against Charles Warner and Elizabeth Warner, defendants, for wages. From a judgment for plaintiff, defendants appeal.
    Henry L. Jones, for appellants.
    C. R. Iungerich and Lynn S. Corbly, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    C. W. Jones for use of Rebecca Stevens, Appellee, v. Aetna Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Moultrie county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by Supreme Court (malting opinion final).
    Reversed with findings of facts.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Garnishment proceedings by C. W. Jones, for use of Bebecca Stevens, plaintiff, against the Aetna Insurance Company, garnishee. From a judgment for plaintiff, the garnishee appeals.
    Bebecca Stevens, having recovered a judgment against C. W. Jones, commenced garnishment proceeding against the garnishee to subject funds alleged to be in its hands and due C. W. Jones on a policy of fire insurance covering the latter’s stock of merchandise to the payment of the judgment. The defendant claimed that as the result of the insured’s notation of certain clauses of the policy, viz., to keep property unincumbered, to keep books of account and an inventory of goods in a safe, such policy became void and no money was due the insured thereunder.
    Edward C. Craig, Donald B. Craig and Jennings & Elder, for appellant; Charles B. Obermeyer, of counsel.
    E. J. Miller, McLaughlin & Thompson and C. Roy Patterson, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Garnishment—when answer of garnishee to interrogatory does not constitute waiver of defenses. In garnishment proceedings against a fire insurance company to recover money alleged to be due the principal debtor on account of a fire loss where among other defenses, the defendant set up that the policy became void because of the placing of certain chattel mortgages upon the property insured, held that the defendant, by stating, in answer to an interrogatory as to whether it had ever adjusted or paid any loss on such property, that it had not, and that it was not liable under such policy because it had become void on or about a certain date (the date of one of the mortgages), did not waive the other defenses set up, inasmuch as it could not be presumed that, by mentioning the date of one of the chattel mortgages, in the manner it did, it intended to refer to it as the only reason why such policy became void.

2. Garnishment, § 98 —what is question at issue in garnishment cases. In garnishment cases, the question at issue is whether the garnishee is indebted to or has any property of the debtor in his possession at the time of the answer.

3. Insurance—when insured must comply with provision of fire policy to keep hooks of account in iron safe. A clause in a fire insurance policy requiring books of account to be kept in an iron safe at night is reasonable and valid and must be complied with by the insured to entitle him to recover for a loss.

4. Principal and agent, § 203*—when notice to agent not notice to principal. The rule that notice to an agent, while acting within the scope of his authority and in reference to a matter over which his authority extends, is notice to the principal, does not apply where the facts show collusion, between the agent and the one with whom he is dealing, to defraud the principal, or where the facts and circumstances are such as to raise a clear presumption that the agent will not perform his duty.

5. Insurance, § 264*—when placing chattel piortgage on insured property with connivance of agent renders policy void. The placing of a chattel mortgage on insured property in violation of the terms of the policy, though done with the knowledge' of the agent of the insured who advised that such fact be kept secret, held to render the policy void, as such facts showed collusion and an intent to defraud the insurer, notice of such mortgage never having been communicated to the insured.

6. Insurance, § 287*—what does not constitute set of hooks within fire policy. Evidence held to show that a system of keeping accounts known as the “McCaskey system” was in no sense “a set of books showing a complete record of business transacted, including all purchases and sales, both for credit and exchange, together with the last detailed inventory of stock," as required of an insured under a fire insurance policy.

7. Evidence, § 366*—when evidence incompetent as amounting to conclusion of witness. On the question as to whether an insured under a fire insurance policy kept accounts in accordance with the requirements of the policy, testimony of a witness that while he did not know how such accounts were kept he did know that the agent of the insurer, who had written the policy, knew how and where they were kept, held incompetent as being the conclusion of the witness.


text:
    Modern Woodmen of America, Appellee, v. J. A. Scott, Appellee. Iva Scott and Roscoe Scott, Appellants.
    1. Insurance, § 837

      —when payment of premiums on mutual benefit certificate does not create debt. Payments of premiums on a mutual benefit insurance policy by strangers thereto, in accordance with an agreement with the beneficiary, to which the insured was not a party, are but voluntary payments, and do not make the insured a debtor to those so making such payments, and thus do not create a beneficial interest in such policy.
    2. Abatement and revival, § 50*—when right of action terminated by death of party to agreement. An agreement between a beneficiary in an' insurance policy and others not beneficiaries, to which agreement the insured was not a party, whereby the parties thereto were to pay certain proportions of the premiums and in return receive proportionate shares of the proceeds of the policy, while enforceable in equity as between the parties, had the parties survived the insured, held terminated by the death of the beneficiary before that of the insured.
    3. Insurance, § 837*—when insured not bound by agreement between beneficiary of mutual benefit certificate and third persons. An insured under a mutual benefit life insurance certificate, on which he has paid the premiums, is not bound by an agreement, to which he was not a party, between the beneficiary and others as to the distribution of the proceeds of the policy.
    4. Insurance, § 825*—what does not constitute deprival of right

      to change beneficiary of mutual benefit certificate. Voluntary payments of premiums by those not beneficiaries under a mutual benefit life insurance certificate do not deprive the insured of the right to change the beneficiary therein.
    5. Insurance, § 830

      —what are rights of third persons making voluntary payment of mutual benefit insurance premiums. Voluntary payments of premiums by persons not named as beneficiaries in a mutual benefit life insurance certificate give them no vested equitable interest therein.
    6. Insurance, § 825*—when by-law of fraternal benefit society as to change of beneficiary valid. A by-law of a fraternal benefit society declaring that any attempt to change the payee of benefits under a certificate by will or otherwise than by compliance with such by-law shall be void, held reasonable and binding upon • the insured, so as to render an attempted disposition by will of part of such benefits, otherwise than as provided by such certificate, of no avail.
    7. Insurance, § 837*—when proceeds not part of estate of insured. Money payable by virtue of a mutual benefit life insurance certificate, in which is named a beneficiary other than the estate of the insured, does not become a part of the estate of the insured, and cannot become the subject of testamentary disposition.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed April 21, 1916.
    Hill & Bullington, for appellants; Gillespie & Fitzgerald, of counsel.
    Robert H. Patton, for appellee.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

The Modern Woodmen of America filed a bill of interpleader in the Circuit Court of Sangamon county in which it averred that on February 21, 1887, it issued to Warren D. Scott a benefit certificate in the sum of $3,000, payable, subject to the terms and conditions thereof, to his wife, Priscilla Scott; at the request of said Warren D. Scott the certificate was thereafter on July 14, 1913, changed and a new certificate was issued payable to J. A. Scott, son of the' said Warren D. Scott, which said new certificate was in lieu of the former one; said Warren D. Scott died April 18, 1914, and that the sum of $3,000, is now due and payable to whoever is entitled thereto; said J. A. Scott has commenced an action at law to recover said sum of $3,000, which action is now pending; one Roscoe Scott, a minor, claims that he has an interest in the said sum of $3,000; said complainant is unable to determine to whom and in what proportion the said sum of $3,000 should be paid.

A guardian ad litem was. appointed for Roscoe Scott, who, by leave of court, filed a cross-bill, naming the Modern Woodmen of America, J. A. Scott, Bird Scott and Iva Scott parties defendant thereto. Subsequently an interlocutory order was entered finding that the Modern Woodmen of America had paid the sum of $3,000 into court, and ordering the benefit certificate to be canceled and complainant dismissed out of the case.

It appears that Warren D. Scott, the insured, paid all the assessments and dues on the certificate from the date when it was issued in 1887 to January 6,1894, at which time Priscilla Scott, his wife and beneficiary in the certificate, and his sons, J. A. Scott, B. B. Scott and D. A. Scott, entered into a written agreement by which Priscilla Scott agreed and covenanted with the three sons, collectively and separately, that at the death of Warren D. Scott, when she received the $3,000 by virtue of said certificate, she would with her said sons invest said money in real estate from which she was to receive the income during her life and at her death said estate was to descend to the three sons, respectively, in equal parts. The three sons on their part agreed to pay all dues and assessments on the certificate from the 6th day of January, 1894, until the death of Warren D. Scott. The agreement further provided that in case any of the sons should fail to pay his one-third share of all the dues and assessments, his right and interest in said real estate should descend to the other brother or brothers who should pay said share. The instrument is signed by Priscilla Scott and by the three sons, J. A., B. B. and D. A. Scott.

It will be noted that the father, Warren D. Scott, the insured, was not a party to this agreement. B. B. Scott ceased paying his share of the dues and assessments many years before the death of Warren D. Scott, and his share thereof from the time he ceased making the payments was paid by the insured. Priscilla Scott, the mother and beneficiary, died in October, 1905. D. A. Scott died intestate June 14, 1913, leaving Roscoe Scott, his son, and Iva Scott, his widow. D. A. Scott had paid his share of the dues and assessments up to May, 1913, and his widow in July, 1913, sent a draft for $5 to Warren D. Scott to pay her husband’s share of the dues and assessments then due, which the latter refused to receive and returned to her.

On July 14, 1913, Warren D. Scott caused a new certificate to be issued in which J. A. Scott was named as beneficiary, and from that time until Warren D. Scott died, on the 18th day of April, 1914, all dues and assessments were paid by the said J. A. Scott. Warren D. Scott died testate and in his will was the following provision: “Fourth, I request my son, Jesse A. Scott, if and when he shall make collection of the benefit certificate issued to me by the Modern Woodmen of America, to place Five Hundred Dollars ($500.00) thereof out at interest, and if and when my grandson, Roscoe Scott, shall become twenty-one years of age, and appear at the home of said Jesse A. Scott in person and apply therefor, to pay said sum with accumulated interest to said Roscoe Scott, and to no other person.”

The chancellor entered a decree finding that J. A. Scott was entitled to the amount of the certificate with the exception of $500, which he ordered J. A. Scott to hold as trustee for, Roscoe Scott subject to the terms, provisions and requirements of the will of Warren D. Scott. The appellant, Roscoe Scott, claims that the court erred in not decreeing that he was entitled to one-third the amount of the certificate, or $1,000, and appellee J. A. Scott has filed cross errors to the effect that the court erred in decreeing that he should hold $500 of the amount in trust for Roscoe Scott and in not ordering that the costs be taxed against appellants.

The cross bill of Roscoe Scott is based upon the theory that as his father, D. A. Scott, and appellee, Jesse A. Scott, had made the payments of the dues and assessments on the certificate mentioned, they obtained a beneficial interest therein, and their intervening rights having attached, the insured, Warren D. Scott, could not lawfully change the beneficiary and exclude them of their interests. This contention cannot be sustained. Warren D. Scott, the insured, was not a party to the written agreement, and while he acquiesced in the payment by his sons of the dues and assessments on this certificate, such payments were but voluntary and did not make him a debtor to those who paid them. Grand Lodge A. O. U. W. v. Ehlman, 246 Ill. 555. Priscilla Scott, the original beneficiary, undoubtedly had a right to make a contract with her three sons in regard to her expectancy under the certificate which would be enforced in equity, but her death in 1905 terminated that agreement. Jarvis v. Binkley, 206 Ill. 541. The facts in this case are clearly distinguishable also from those in cases in which reimbursement of dues or assessments paid has been allowed out of the amount of a beneficiary certificate, such payment having been made by a person named as a beneficiary with the expectation of receiving the fund itself, when, in fact, the person so named was not eligible as beneficiary. (Royal Ar canum v. Tracy, 169 Ill. 123; McGrew v. McGrew, 190 Ill. 604; Royal Arcanum v. McKnight, 238 Ill. 349.) Priscilla Scott, the original beneficiary, under the agreement with her sons, paid no dues or assessments. After her death there was no beneficiary for nearly eight years, and during this period of time the dues and assessments were paid by Warren D. Scott, the insured, J. A. Scott and D. A. Scott. The insured was not bound by any agreement that his beneficiary, Priscilla Scott, might have made with her sons to which he was not a party, and, in any event, that agreement was terminated by the death of Priscilla Scott. The fact that after her death two sons voluntarily paid a portion of the dues and assessments on the certificate, during a time when there was no beneficiary, would not deprive the insured of the control of his certificate nor bar him from appointing a new beneficiary therein. McGrew v. McGrew, 190 Ill. 604; Murphy v. Nowak, 223 Ill. 301; Ptacek v. Pisa, 231 Ill. 522. The mere voluntary payment of a portion of the dues and assessments on this certificate by the sons of the insured gave them no vested equitable interest or rights therein, and the insured was at liberty to name J. A. Scott as his beneficiary in the new certificate.

Section 45 of the" by-laws of the Modern Woodmen of America provides, among other things, as follows: “Any attempt by a member to change the payee of the benefits of his benefit certificate by will or other testamentary document, contract, agreement, assignment or otherwise than by strict compliance with the provisions of this section relating to change of beneficiary, shall be absolutely null and void.”

We think that the chancellor erred in holding that the fourth clause of the will was effective in establishing a trust fund of $500 for the benefit of Eoscoe Scott. The by-law above mentioned is reasonable and binding upon the insured. The clause of the will is an attempt on the part of the insured to add another beneficiary to his certificate without complying with the by-laws of the association in relation to the manner in which the beneficiary may be changed. The by-laws of the association set out what steps must be taken to change a beneficiary. The insured cannot change the beneficiary by will contrary to the by-laws of the association, which form a part of his contract of insurance. Moreover, the money payable by virtue of a certificate or policy of insurance, in which is named a beneficiary other than the estate of the insured, does not become a part of the estate of the insured (Martin v. Modern Woodmen of America, 253 Ill. 400), and consequently could not become subject to testamentary disposition. The cross error of appellee as to this part of the decree must be sustained:

The part of the decree which finds that J. A. Scott is entitled to the proceeds of the certificate in question is affirmed and that part of the decree which creates a trust fund out of $500 of the proceeds thereof in favor of Eoscoe Scott is reversed, and the cause is remanded with directions to enter a decree giving J. A. Scott the whole amount of said certificate in his own absolute right, less the costs in the Circuit Court, the costs in this court to be taxed against appellants.

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


text:
    Nellie Cash, Appellee, v. Arthur W. Cash, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Husband and wife, § 228

      —when offer to take wife back ineffectual. In separate maintenance proceedings, the defendant’s offer to receive the complainant back as his wife was held coupled with so many conditions and limitations that no self-respecting woman could comply therewith and that she was not compelled to accept it.
    2. Husband and wife, § 249*—when allowance for solicitors’ fees not excessive. Allowance of one hundred dollars as solicitors’ fees in a separate maintenance proceeding, held not excessive.
    3. Husband and wife, § 265*—when decree for lien on real estate in separate maintenance proceedings proper. A decree in separate maintenance proceedings held proper in making allowances of alimony and solicitors’ fees a lien on defendant’s real estate and household furniture.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Bill for separate maintenance by Nellie Cash, complainant, against Arthur W. Cash, defendant. From a decree for complainant, defendant appeals.
    Baldwin & Caret, for appellant.
    Buckingham, McDavid & Monroe, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

4. Husband and wife, § 265*—when decree for payment of solicitors’ fees in separate maintenance proceedings erroneous. A decree in separate maintenance proceedings held erroneous in making solicitors’ fees payable to the clerk of the court for the use of the complainant’s solicitors, as it should have required the money to be paid to complainant or to the clerk for her use.


text:
    City of Lincoln, Appellee, v. St. Louis, Springfield & Peoria Railway Company, Appellant.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by the City of Lincoln, plaintiff, against the St. Louis, Springfield and Peoria Bailway Company, defendant, to recover a penalty for obstructing a public street in such city by constructing and maintaining a fence therein. From a judgment for the city in the Circuit Court, after appeal from a justice of the peace, filing the fine at ten dollars, defendant appeals.
    King & Miller, for appellant; George W. Black, of counsel.
    Uri Kissinger, for. appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

Municipal corporations, § 875 —when evidence sufficient to show right to use of land for street. In an action by a city to recover a penalty for obstructing a public street by the erection and maintenance of a fence thereon, where it appeared that former owners of land abutting on such street constructed a fence twenty feet distant from the border line of the street and such strip was taken control of by the city and used as a part of the street, with the acquiescence and consent of the owners for thirty-eight years, until defendant re-established a fence on the former line, evidence held sufficient to sustain a finding that the city had acquired a right to use this strip for street purposes by the use thereof for more than fifteen years under Rev. St. ch. 121, sec. 1 (J. & A. ¶ 9628).