text:
    John A. White, Appellant, v. Harry F. Williams, Trustee, Appellee.
    Gen. No. 17,034.
    1. Trusts — when devise to trustees creates spendthrift trust. ' A devisa, by a father, of money to trustees to invest, directing them to pay the income in semi-annual instalments, in cash, into the hands of his son, in person, and not upon any order or assignment or transfer by the son and that in no event shall the son have the power to anticipate his income either by voluntary orders or transfers, or by application of law by virtue of any legal proceedings against the son, creates a spendthrift trust putting the fund and the income beyond the reach of the creditors until it is paid to the son in person, and an assignee of the son’s interest will take nothing under an assignment anticipating a .payment.
    2. Perpetuities — when provision as to time of distribution of estate does not violate rule. Where a testator devises his property to trustees directing them to pay the income to the beneficiaries, a provision that there shall be a final distribution of the whole estate ten years after the probate of the will does not violate the rule against perpetuities.
    3. Wills — when limitation over of personalty will not avoid devise. Where a father devises money to trustees to invest in securities directing them to pay the income to his son as long as he lives, and to pay the fund at his death to his children, and a spendthrift trust is created, it is the intention that the trustees' shall control the fund, and an alleged rule that a limitation over of chattels after the death of the first taker is void, has no application.
    Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlaix, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Edmund H. Smalley, for appellant.
    Lackner, Butz & Miller, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court, sustaining a general demurrer filed by appellee to a bill of complaint filed by appellant, which seeks to subject the interest of Henry E. Huck in the estate of his deceased father, Louis C. Huck, to the payment of an indebtedness evidenced by three promissory notes signed by the former and payable to the appellant. The bill alleges, in substance, that Louis C. Huck died in Chicago in December, 1905, leaving a last will and testament, which was duly admitted to probate in Cook county; that he left him surviving a widow, four daughters and two sons, one of whom was Henry E. Hnck; that by the will of Lonis C. Hnck, after providing for the payment of debts and certain specific legacies, all the remainder of Ms estate was devised to Panla Reif Hnck (Ms wife), Harry F. Williams and Otto C. Bntz, as “general trustees,” who were given full power to manage and control the property, and directed to convert the same into cash as soon as convenient; that the will provides that the general trustees “shall pay over to Harry P. Williams and Otto C. Butz, as trustees, the sum of $15,000 as soon as, in their opinion, the condition of the estate warrants the same,” to be kept invested by said special trustees in interest bearing securities; that said two trustees “shall turn over all incomes not needed to pay taxes and necessary expenses of said trust, in semi-annual installments, in cash, into the hands of my son, Henry E. Huck, in person as long as he lives, and hot upon any written or verbal order, nor upon any assignment or transfer by said Henry E. Huck, and in no event shall said Henry E. Huck have the right or power to anticipate his share of said income by any order on said trustees, or other voluntary transfer, or by application of law by virtue of any attachment, judgment, decree or other legal proceedings against him. This trust shall continue for and during the life of said Henry E. Huck, unless the same is sooner terminated by the direction of said Henry E. Huck, and the consent of at least one of said trustees; and in case said trust is terminated by said Henry E. Huck and said trustees, then said trustees are directed to pay the entire corpus of the estate then in their hands, together with such income which accrued from the same as they have, unto said Henry E. Huck;” that the will further provides that if said trust is not terminated befor-e Henry E. Huck’s death, the two trustees shall pay over what remains of said $15,000 fund to Ms children, if any survive him, or if not, then to be divided in the same manner as the residue of the estate; that the “general trustees” are directed hy the will to divide semiannually the net income of the remainder of the estate (after paying a certain bequest, and after paying to Williams and Butz, as “special trustees” said sum of $15,000) in specified shares between the wife and the children of the deceased other than Henry E. Huck and one of the daughters; that when a majority of the general trustees shall deem it advisable to make a division of the whole estate they may do so, giving the wife one-third and the remainder to the four children last mentioned; and that such trustees “shall be compelled to make a division of my said estate at the expiration of ten years from and after the date of the probate of my will, if they have not before that time already made such division in the exercise of the discretion conferred upon them hereby, provided that if all my said children shall die before the expiration of ten years, such division shall be made upon the death of my last surviving child.”

The bill further avers that in July, 1907, the estate of said deceased was fully settled in the Probate Court of Cook county, and the residue of said estate was turned over to the trustees under the will, “who are still acting as such trustees and retain control of said entire estate, including said $15,000 belonging to said Henry E. Huck;” that in November and December, 1907, Henry E. Huck obtained a loan of $815 from appellee in Salt Lake City, Utah, upon a representation that he was a legatee named in the will above mentioned, and entitled to receive from his father’s estate $15,000, and a quarterly allowance of $1,600, and that he would soon receive the same and would then repay the loan; that appellant relied on such representations; that Henry E. Huck executed his three notes, aggregating $815, payable one on demand, one on December 3, 1907, and one on January 4, 1908, with interest at 10 per cent, per annum; that to secure said loan, Henry E. Huck “pledged, transferred and assigned verbally to your orator, all bis interest in the estate of Ms father, Louis C. Huck, * * * both as heir and as legatee;” that to further secure the loan, Henry E. Huck gave to appellant a written document, signed by Henry E. Huck, in which the latter agreed “that I will not use my share of my father’s estate until the money due said J. A. White, of Salt Lake City, Utah, is repaid in full;” that no part of said loan has been repaid. It is alleged that the interest of said Henry E. Huck in his father’s estate is a vested interest; that the trust is a dry and passive trust, and that Henry E. Huck was the absolute owner of said $15,000 when he pledged the same to appellant. The bill contains the usual prayer of a foreclosure suit.

Appellant’s counsel has raised a series of questions involving the validity of the whole will of Louis C. Huck, the validity of the special devise or bequest for the benefit of Henry E. Huck, and the construction and. effect to be given to the different portions of the will. On behalf of appellee, it is claimed that the will created a spendthrift trust for the benefit of Henry E. Huck, which puts the fund and the income thereof beyond the reach of his creditors until after the special trustees have paid the same over to him in person. This contention is disputed by appellant’s counsel, who reasons that a testator cannot devise an estate, and at the same time impose restrictions upon its alienation by the devisee; or in other words, .that a testator cannot both “give and not give in the same breath. ’ ’

In Steib v. Whitehead, 111 Ill. 247, the doctrine that a testator may create what has become known as a spendthrift trust was recognized and established as law in Illinois. There the court said of a will similar in this respect to the one here involved (p. 250): “That it was the intention of the testator to place the net income of the property beyond the control of his daughter and her creditors while in the hands of the trustee, is manifest, and we perceive no good reason, nor has any been suggested, why this intention should not be given effect. We fully recognize the general proposition that one cannot mate an absolute gift or other disposition of property, particularly an estate in fee, and yet at the same time impose such restrictions and limitations upon its nse and enjoyment as to defeat the object of the gift itself, for that would be, in effect, to give and not to give, in the same breath. Nor do we at all question the general principle that upon the absolute transfer of an estate, the grantor cannot, by any restrictions or limitations contained in the instrument of transfer, defeat or annnl the legal consequences which the law annexes to the estate thus transferred. * * * But while this unquestionably is true, it does not necessarily follow that a father may not, by will or otherwise, make such reasonable disposition of his property, when not required to meet any duty or obligation of his own, as will effectually secure to his child a competent support for life, and the most appropriate, if not the only, way of accomplishing such an object is through the medium of a trust. * * * If the beneficiary may anticipate the income, or absolutely sell or otherwise dispose of the equitable interest, it is evident the whole object of the settlor is liable to be defeated. If, on the other hand, the author of the trust may say, as was done in this case, the net accumulations of the fund shall be paid only into the hands of the beneficiary, then it is clear the object of the trust can never be wholly defeated.” A comparison of the language of the will in question with the foregoing quotation shows that the provisions of the will adhere closely to the language of the opinion quoted. The case of Steib v. Whitehead, supra, was approved and, followed in King v. King, 168 Ill. 273, in Bennett v. Bennett, 217 Ill. 440, and in Wagner v. Wagner, 244 Ill. 101. The argument of appellant’s counsel proceeds upon the theory that by the will in question, Henry E. Huck took a vested interest in the fund directed to he set apart for his benefit, and that this is a case of a “present vesting of title where the enjoyment in possession is postponed,” such as was before the court in Pearson v. Hanson, 230 Ill. 610, and in Armstrong v. Barber, 239 Ill. 389; hut in the Pearson case, supra, it was distinctly stated that one test for determining whether an estate devised by will is vested or contingent, may he found in the expressed or implied purpose of the testator in making the devise; that when such purpose is personal to the legatee, and not for the convenience of the fund, then the estate will not vest until the time appointed. The same test is recognized in Armstrong v. Barber, supra, and in Wagner v. Wagner, supra. There can be no doubt that by the will in question the testator’s purpose in directing the fund of $15,000 to he set apart in the hands of special trustees and paid over only to the son in person was a purpose purely personal to the legatee, and not for the convenience or accumulation of the fund. In Bennett v. Bennett, supra (p. 445), it was expressly held that where such is the fact, no estate vests in the legatee.

Great stress is laid by appellant’s counsel upon an expression founded in the opinion in the case of Pearson v. Hanson, supra, to the effect that a testator cannot both “give and not give in the same breath;” this expression, however, had its origin in the case of Steib v. Whitehead, supra, as the quotation from that case in this opinion shows; and the court there held that a spendthrift trust does not “give and not give in the same breath” because there is no gift in prcesenti to the legatee in such case. From the authorities cited, we are clearly of the opinion that the provisioh of the will in question created a spendthrift trust, and that the fund thus set apart is beyond the reach of the creditors of Henry E. Huck until after the money is actually paid into Ms hands; that snch fund is also heyond his own control until it has been paid into his hands, and that, therefore, the appellant took nothing by the alleged assignment or pledge of snch fund in anticipation of its payment to Huck by the special trustees.

It is also urged that the will violates the rule against perpetuities, in that it provides for a final distribution of the whole estate “ten years after the probate of the will,” and our attention is called to the case of Johnson v. Preston, 226 Ill. 447, as supporting this view. It will be enough to say that the case thus cited has been twice distinguished by the Supreme Court as inapplicable to facts such as are here shown to exist. Armstrong v. Barber, supra; Mettler v. Warner, 243 Ill. 600.

It is further urged that “a limitation over of chattels after the death of the first taker is void.” The devise here is to the trustees for the life of Henry E.' Huck, and upon his death to be paid to his children. In such cases, where the intention of the testator is clear that the trustees shall control the fund, the rule invoked has no application. Smith v. Smith, 254 Ill. 488.

Numerous other propositions, along the same general line, have been suggested in the briefs and in argument. We have fully considered them, but find nothing that in our opinion tends to put tMs case in any different class than that of Steib v. Whitehead, supra. The demurrer to the bill of complaint was properly sustained, and as this demurrer goes to the very essence of the relief sought, the bill was properly dismissed for want of equity.

The judgment of the Superior Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Elizabeth O’Brien, Appellee, v. Catholic Order of Foresters, Appellant.
    Gen. No. 17,042.
    1. Insurance — when subordinate lodge may waive hazardous occupation by-law. A subordinate lodge of a fraternal insurance society is the agent of the supreme lodge and may waive a bylaw terminating membership if the insured changes his occupation to that of railroad switchman by accepting dues and assessments with full knowledge of all the facts constituting a violation of the by-law.
    2. Insurance — when notice to officers is notice to fraternal society. Where it is claimed that a by-law of a fraternal insurance society prohibiting extra hazardous occupations was waived, notice to a recording secretary, who was required to keep a descriptive roll of the members’ occupations, that a member had changed his occupation to that of railroad brakeman, is notice to the society.
    3. Insurance — when waiver of hazardous occupation by-law is for the jury. A member of a subordinate lodge of a fraternal insurance society requested a withdrawal card from the recording secretary of the supreme lodge as he had changed to an extra hazardous occupation prohibited by the by-laws of the supreme lodge. The'evidence was conflicting whether the recording secretary who' was required to keep a descriptive roll of the members’ occupations told him to let the matter rest until he saw him again. The financial secretary was the only legal receiver of assessments, but it was the custom of the recording secretary to collect from delinquents. Subsequent dues were paid to the financial secretary and receipted for by him. Held, whether the forfeiture under the by-law was waived by the supreme lodge was a question for the jury.
    4. Insurance — when instruction on effect of notice to officer is properly modified. Where a member of a fraternal insurance society changed to an extra hazardous occupation prohibited by the by-laws and his father notified the recording secretary, an instruction on the theory that the father and the secretary acted in collusion stating that if the secretary said to keep still and say nothing about the change the society was not bound by the notice is properly modified by requiring the jury to find that there was an understanding that the change in occupation was not to be reported.
    5. Insurance — when, instructions as to payment of assessment may be refused. In an' action on a death benefit certificate, an instruction that the financial secretary was the only legal receiver of. payments of dues and assessments may be refused when tbe evidence is undisputed that payments made to tbe recording secretary were, in fact, delivered to tbe financial secretary.
    Appeal from the County Court of Cook county; tbe Hon. William C. De Wole, Judge, presiding. Heard in tbe Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Edmund S. Cummings, for appellant.
    John H. Lally, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment for $1,000 recovered by appellee from appellant upon a benefit certificate issued by appellant to William J. O’Brien, the deceased husband of appellee. The certificate was issued on January 28, 1907, and contains a provision that the amount thereof is payable to appellee upon due proof of the fact and cause of the death of William J. O ’Brien, and upon condition that he should, at the time of his death, be a member of the appellant society in good standing, and should have complied with all the by-laws thereof. When the certificate was issued, O’Brien was a clerk for the Griffin Car Wheel Company. In the month of May following, he obtained employment as a railroad switchman in the yards of the Pennsylvania Bailroad Company, and on September 15, 1907, was killed.

The by-laws of the appellant society contain a provision to the effect that railroad switchmen in yards are ineligible to regular membership in the society, and another to the effect that any member who changes his occupation from either the ordinary class (including such employes as clerks) or the hazardous class (including railroad trainmen and the like) to the prohibited class, “shall by that fact lose his membership in the order.” The defense of appellant in the trial court was based upon these provisions of the by-laws. At the beginning of the trial appellee’s counsel admitted that such a change of occupation had occurred after the deceased became a member of the society, and said that he based appellee’s right to recover upon the fact (as claimed by appellee) that the appellant, with full knowledge of the facts, had waived this provision of the by-laws. The errors assigned and discussed in the briefs of counsel are: First, the court erred in refusing to direct a verdict for the defendant; second, the court erroneously modified one instruction and refused another; third, there is no competent evidence that proofs o.f death were submitted.

It appeared from the evidence that the deceased and his father, John F. O’Brien, were members of Unity Court, a subordinate lodge of the appellant society; that Joseph Costello was the financial secretary, and Patrick J. Fitzgibbons was the recording secretary of the court, at the time of the occurrences in question. The by-laws require that all assessments, dues' and fines be paid to the financial secretary, “who shall be the only legal receiver, on the part of the court, of any and all such payments; * * * and any other officer or member who accepts or receives any moneys in payment of any assessment, dues or fine for a member. shall be considered the agent of such member, and any such moneys paid to such agent of a member shall in no case be construed or operate as a payment of an assessment, dues or fine for the member to the court or order until such agent has paid such moneys to the financial secretary.” The by-laws require the recording secretary to perform many duties, among which are, that he shall keep a “descriptive roll” of all members in a book, showing their names, ages, occupations, class of risk, residence, date of admission, etc.; shall sign all benefit certificates and deliver them to the members; conduct all correspondence; notify the financial secretary of any fines imposed or remitted, and of any charges to be made on any member’s account; shall attend every regular meeting of the court under a penalty of a money fine for a failure to do so without a reasonable excuse; ‘ ‘ shall mark all communications with the date of their receipt and present the same to the court at its next regular meeting; ’ ’ shall sign all vouchers drawn oh the treasury; shall, within twenty-four hours after each meeting, forward to the high secretary notice of all members admitted to the court, “together with such other data required by these laws under penalty of a fine, as elsewhere provided;” shall make regular reports of various kinds, among which are reports to the high secretary, noting any changes in membership of the court which may have occurred; “when a death occurs in the court he shall forward official notice of the same, by. letter, to the deputy high chief ranger and to the high secretary without delay;” and shall receive such compensation for his services as the court may determine.

The evidence on behalf of appellee tended to prove that when the deceased changed his occupation, as above stated, his father told Fitzgibbons, the recording secretary, of that fact and requested a “withdrawal card” for his son, saying that the son would not be willing to pay the increased rate required for the extra hazardous occupation; that his son was not going to switch very long, and that it was only a temporary change. To this Fitzgibbons replied, “Let the matter rest and say nothing until I see you again; members are too ha^d to get to let him go for that,” or words to that effect; that several months after this conversation, appellee received a communication from the court with reference to the dues and assessments of her husband; that she took the letter, with the amount of the dues and assessments, to John F. O’Brien, who paid the amount due to Fitzgibbons, and the latter marked it “paid” in the pass book of William O’Brien, and at once turned over such payment to Costello, the financial secretary; that the following month, September 15th, the father paid directly to Costello, the financial secretary, the subsequent dues and assessments which had then accrued, and thereupon Costello signed his name in the same pass book immediately under the prior signature of Fitzgibbons. Fitzgibbons does not deny that he had a conversation with John F. O’Brien, in which the latter told the former of a change in occupation upon the part of the deceased, but testified that the conversation was merely to the effect that the deceased had changed his occupation to “railroading,” without saying the new occupation was that of a switchman in a railroad yard.

It also appeared from the evidence that it was the custom in Unity Court for the financial secretary to read aloud, at each meeting, the names of those who were delinquent in the payment of dues and assessments, and thereupon, the recording secretary, or members who were acquainted with the delinquents, would be requested, or would volunteer, to see the delinquent member and endeavor to persuade him to pay up his back dues and assessments; and that in this manner payments were frequently made to the recording secretary and other members, who would, in turn, pay them to the financial secretary.

The question then arises, whether the facts and circumstances above recited constitute a waiver on the part of the appellant society of that provision of the by-laws by which a benefit certificate is made void by the mere fact that the insured changes his occupation to that of a switchman in a railroad yard. It is undoubtedly the law, that in the absence of any waiver or estoppel on the part of a fraternal insurance society, no recovery can be had on the certificate, where a by-law like the one in question has' been violated. Quinn v. North American Union, 162 Ill. App. 319. The provisions of a by-law may, however, be waived by the society. Wood v. Mystic Circle, 212 Ill. 532. A subordinate lodge of such a society is the agent of the supreme lodge, and may waive such a by-law by accepting dues and assessments with full knowledge of all the facts constituting the violation. Jones v. Knights of Honor, 236 Ill. 113; Coverdale v. Royal Arcanum, 193 Ill. 91; Grand Lodge, etc., v. Lachmann, 199 Ill. 140; Court of Honor v. Dinger, 221 Ill. 176; High Court I. O. F. v. Schweitzer, 171 Ill. 325; Railway Conductors’ Benefit Association v. Tucker, 157 Ill. 194. Knowledge of the facts communicated to, or received by officers having the authority to act, or the duty of acting, in the matter is generally imputed to the society. Court of Honor v. Dinger, supra; Walker v. American Order of Foresters, 162 Ill. App. 30; Pegram v. Mutual Protective League, 159 Ill. App. 214; Kidder v. Supreme Assembly, etc., 154 Ill. App. 489; Plattdeutsche Grot Gilde v. Ross, 117 Ill. App. 247; Whigham v. I. O. F., 44 Ore. 543; Modern W. of A. v. Lane, 62 Neb. 89. Under these authorities, it was a question of fact for the jury to determine whether the appellant society waived the forfeiture imposed by this by-law, by accepting dues and assessments, with such knowledge on its part as was possessed by Fitzgibbons, the recording secretary of Unity Court.

In view of the character of the duties imposed upon the recording secretary by the by-laws of appellant, we think it is clear that it was the duty of Fitzgibbons to impart any information, snch as he is alleged to have received from the father of the deceased, to his court at the nest meeting, and to report the fact of such change in occnpation to his superior officers in the society. Notice to him was therefore notice to the society. The evidence being conflicting as to just what information he did have, it was distinctly the province of the jury, who saw and heard the witnesses, to decide that question. We find no such facts or circumstances in the record as would warrant us in saying that the verdict in this respect is clearly and manifestly against the weight of the evidence.

It is, however, urged that Fitzgibbons and the father of the deceased acted in collusion. On this theory appellant requested the trial court to give an instruction referring to the conversation between O ’Brien and the recording secretary, and telling the jury that if they believed from the evidence that O’Brien’s father notified the recording secretary that his son was engaged in the prohibited occupation, and that the recording secretary “told the said father of O’Brien to keep still and say nothing about it, then and in that case, the defendant society would not be bound by the notice to the recording secretary.” The court modified this sentence by inserting before the word “then” in the above quotation, the following: “and that it was the understanding between said O’Brien’s father and said recording secretary that such fact was not to be reported.” "We think the modification was correct. Fitzgibbons, when called as appellant’s witness, denied that he understood the matter as O’Brien had testified. Hence, without such modification, the court would have told the jury in effect that the mere statement of the recording secretary to O’Brien to “say nothing about it” would be conclusive on the question of waiver after full notice of the facts to the representative of the society. It is for the jury, and not the court, to find the facts, and the instruction would have been erroneous without the modification.

The court also refused an instruction offered by appellant, quoting substantially the language of the bylaw regarding the duty of the financial secretary .to receive payments, and that payments made to any other member were not payments to the society, until the money had been delivered to the financial secretary. There was no error in refusing this instruction, for the reason that the evidence was undisputed that all moneys paid to the recording secretary on behalf of the deceased were, in fact, delivered to the financial secretary.

As to the alleged error regarding the proofs of death, Fitzgibbons, in response to questions regarding such proofs, testified that he followed the “usual course;” that he had the papers “filled out and sent them to the High. Court.” Apparently the only provisions in the certificate or by-laws regarding such proofs are those mentioned in the foregoing statement of the facts. In the absence of countervailing evidence, we think the showing made in this respect was prima facie sufficient.

The judgment of the County Court will be affirmed.

Affirmed.


text:
    John Moylan, Appellee, v. Chicago River & Indiana Railroad Company, Appellant.
    Gen. No. 17,055.
    1. Railroads — must use ordinary care to maintain switches in safe condition. A company owning tracks owes a duty to employes of other companies using the tracks by agreement to exercise ordinary care to maintain its switches and switch stands in a reasonably safe condition.
    2. Railroads — when theory of no duty to use special device is inapplicable. When a brakeman on a train being operated by agreement on the tracks of another company is injured by the engine splitting an open switch, the theory that a railroad company cannot be required to adopt any particular method or any special device to make appliances safe is inapplicable when the switch lock had been broken several weeks prior to the accident.
    3. Railroads — when company owning trades is liable to employe of another road. Where the tracks of a company are used by agreement by many companies, if the negligence of employes of a company using the tracks in not locking a switch is the proximate cause of a brakeman of another company being injured by an engine splitting the switch, the company owning the tracks is liable.

      4. Railroads — when testimony as to open switch is not incredible. A brakeman, engineer, and fireman on an engine being operated by agreement on the tracks of another company testified that a switch appeared to be closed and that the front wheels passed the switch, but the rear wheels split the switch, derailing the engine and injuring the brakeman. The company owning the tracks contended that it was absurd and incredible that an accident could have happened in such a manner; an experienced railroad man testified that a switch could not be split without buckling the rods, which were not buckled, but another witness testified that there was a space or “play” between the points of the switch and the main track. A latch controlling the switch lever was not broken, though it would have been if the switch had been completely close. The lock to the switch lever was broken prior to the accident. Held, a verdict for the plaintiff was not against the weight of the evidence.
    5. Railroads — when negligence in not providing switch loch is for the jury. Where an engine being operated by agreement on the tracks of another company is derailed by splitting an open switch, and there is evidence that it appeared to be closed and that the lock to the switch lever was broken, negligence of the company in having the switch open and in failing to provide a lock is for the jury, even though there is evidence that it is incredible that the accident could have happened in such a manner.
    6. Railroads — when negligence of company as proximate cause is for jury. A brakeman on the .front of an engine being operated by agreement on the tracks of another company testified that a switch appeared to be closed, that the engine split the switch and he was injured. There was evidence that the switch was partially unfastened and that the lock had been broken. It was contended the brakeman ought to have seen the condition of the switch. Held, it was a question for the jury whether the negligence of the company or the failure of the brakeman to notice the condition of the switch was the proximate cause of the accident.
    7. Appeals and error — when error in admission of evidence is cured by instruction. Where there is evidence that a railroad accident occurred by reason of an open switch and that the switch lock was broken, error in admitting evidence of a custom upon defendants’ railroad, and upon other railroads to provide and use a lock is cured by an instruction stating that the custom should not be taken into consideration and that the question is, was the particular switch stand a reasonably safe appliance.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.

      Rehearing denied and opinion modified and refiled October 17, 1912.

      Certiorari denied hy Supreme Court (making opinion final).
    Winston, Payne, Strawn & Shaw, for appellant; John D. Black and John C. Slade, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment for $9,500 in favor of appellee, hereinafter called the plaintiff, and against the appellant, hereinafter called the defendant, for personal injuries sustained by the plaintiff. The suit was originally brought against the Baltimore & Ohio Railroad Company, the Chicago Junction Railway Company and The Chicago River & Indiana Railroad Company. The suit was discontinued before the trial as to the Baltimore & Ohio Railroad Company, and at the close of the trial a verdict of not guilty was directed as to the Chicago Junction Railway Company.

The case was tried upon an amended declaration consisting of three counts.- The first alleges that defendant owned and operated a railroad extending north and south, parallel with Loomis street, between 45th and 47th streets in Chicago, upon which there was a switch and switch-stand connecting the road with a certain side track; that plaintiff was a switchman employed by the Baltimore & Ohio Railroad Company; that said company operated certain of its trains over said railroad and past said switch and switch-stand, with the consent of the defendant; that it was the duty of the defendant to exercise ordinary care toward keeping the switch and switch-stand in a reasonably safe condition to enable the engines and trains of the Baltimore & Ohio Railroad Company to pass in safety, but that defendant negligently permitted said switch and switch-stand to become and remain in such an improper, insecure and defective condition that they were likely to derail passing trains, ■which, defendant knew, or by the exercise of ordinary care would have known, and that the plaintiff, through no want of ordinary care on his part, did not know of said condition, nor of the danger to which he was thereby exposed; that on August 31, 1908, in the discharge of his duty and with due care, the plaintiff was riding upon the front footboard of a B. & 0. engine hauling a train on said railroad past said switch.and switch-stand; that as a direct result of the defective condition of the switch and switch-stand the engine was derailed while passing the switch, and plaintiff was thrown under the engine and both his legs were broken.

The second count alleges the same general facts and that it was necessary to the reasonable safety of trains operated over said railroad, that a good and sufficient lock should be provided and used on the switch-stand in order to keep the switch in proper position, but the defendant negligently failed to provide and use a good and sufficient lock for that purpose, which facts were known to the defendant and unknown to the plaintiff.

The third count alleges that it was the duty of the defendant to exercise ordinary care toward keeping the switch closed and fastened, but that defendant negligently permitted the switch to become and remain unfastened and partially open, so that it was liable to derail engines and trains, which was known to the defendant and unknown to the plaintiff.

The evidence tended to prove the following facts. The defendant owned the tracks in question and the Baltimore & Ohio Railroad Company operated its trains over such tracks by 'agreement with the defendant. There were two tracks running north and south between 40th and 48th streets, the east track being the north-bound track, and the west the south-bound track. These tracks were used for freight switching-purposes exclusively.. Below 48th street they were connected with the tracks of the Chicago Terminal Transfer Railroad Company, and at the northern end curved around to the east and joined the tracks of the Chicago Junction Railway Company, leading into the stock yards in Chicago. The Chicago, Milwaukee & St. Paul, the Indiana Harhor Belt, the G-rand Trunk, the Pennsylvania and other railroad companies operated trains over defendant’s tracks at a stipulated rate or charge for each car. About opposite 45th street there was a switch and a side track leading from the north-bound track east into the plant of the American Brick Company. The opening and closing of this switch was controlled by a switch-stand east of and opposite the points of the switch. These points were movable and connected by iron “tie rods” extending to the switch-stand. The switch-stand was made of iron and was about 2y2 feet high. It consisted of a lantern, a movable target, and a lever or iron arm eighteen inches long, at one end of which was an iron ball weighing about ten pounds, and the other end of which was inserted in the mechanism for moving the switch points. The switch points were moved to the east or west by moving the lever from a horizontal position on one side of the stand through the air in a half circle to a corresponding position on thn other side. When in proper position, the lever rested horizontally in one or the other of two iron forks, fastened one on either side of the switch-stand. At the top of each fork was a latch or “dog” so constructed that when the lever was pushed down into the fork the latch or “dog” would slip back over the lever and thus prevent the arm from being raised until the latch was released by a pedal attached to the switch-stand. There was also a padlock chained to one of the ties at the foot of the switch-stand for the purpose of fastening the lever in the fork and preventing anyone from releasing the “dog” by merely stepping on the pedal; but this lock had been broken several weeks prior to the accident, and was unfit for use. Between three and four o ’clock of the day preceding the accident, a Pennsylvania Railroad Company crew had switched a train of cars into the American Brick Company’s yard, using for that purpose the switch and switch-stand in question. About noon the nest day (the day of the accident) an engine of the Chicago Junction Railway Company, going north on the east main track, passed the switch, and its engineer and conductor testified that at that time the switch points were “lined up for the main track” that is, the switch was then closed and they passed in safety along, the main track. At 1:40 p. m., a train of the Baltimore & Ohio Railroad Company came up .on the east track from 48th street. This train consisted of a switch engine and a tender or tank, followed by a loaded coal car, twenty empty refrigerator cars and a caboose. The plaintiff was the head or front brakeman on this train, and for the purpose of seeing that the way was clear for the passage of the train,'he stood upon the footboard in front of the engine. The plaintiff, the engineer and the fireman all testified that as they approached the switch, they looked at it and it appeared to them to be “lined for the main track,” that is, the switch appeared to be closed. None of them looked at the target; but the evidence tended to show that weeds were growing around the target higher than the switch-stand, and that one approaching the stand along the tracks from the south could not see the target until nearly opposite; and if they had seen the target, it would have given them no warning of danger, for the reason that if the switch was closed, or nearly closed, the target would furnish no indication to the contrary. The speed of the train at that time, according to all but one of the witnesses who saw it immediately before the accident, was about eight or ten miles an hour. The one witness to the contrary testified that it appeared to him to be going twenty or twenty-five miles an hour. This witness was an employe of the brick company, who was then working in one of its sheds, 150 feet east of the switch. The engine had a single “pony truck,” consisting of two small wheels under the front part of the engine, and six large drive wheels. The plaintiff and engineer testified that the wheels of the pony truck passed the switch along the main track, but that the drive wheels left the track near the switch points. The body of the engine “slewed around” to the east, so that when it was stopped, 100 or 150 feet north of the switch, the engine was pointing in a northwesterly direction, all of the west wheels being between the rails of the east main track and the east wheels being east of the east main track. At the first jolt of the engine along the ties, the plaintiff turned and grasped the hand rail above the footboard of the engine. He testified that almost at once the footboard doubled under the engine, carrying him down with it, but that he maintained his hold on the hand rail and was carried along with the engine until the front of the engine struck and plunged into a pile of clay at the right of the tracks, burying the plaintiff to the hips and breaking both his legs. It required forty minutes for men working with shovels to dig him out of the clay pile. Besides the engine, the tender or tank and the loaded coal car following it also left the track, and when the train stopped, one of the empty refrigerator cars was standing on the switch points. An examination of the switch at that time disclosed the fact that it was then wide open, and with the lever or ball-arm of the switch-stand resting on top of the latch or “dog,” at an angle of twenty or twenty-five degrees above a horizontal position. Neither the switch nor the switch-stand was broken, except that a small piece of steel less than an inch in size was broken off the west switch point or rail.

Appellant’s counsel state in their brief that the principal grounds urged for a reversal of the judgment are the following: First, the record fails to show that appellant was guilty of negligence; second, the court erred in admitting evidence as to the existence of a custom among railroads with reference to the use of padlocks on switches; third, plaintiff was guilty of contributory negligence; fourth, the court erred as to certain instructions; and fifth, plaintiff’s counsel was guilty of improper remarks in his argument to the jury. Neither appellant’s counsel nor the counsel for appellee have discussed these alleged errors in the order or manner thus stated. Appellee’s counsel has entirely ignored appellant’s grounds as so stated, and has written an exhaustive brief and argument covering every possible point of the case, whether raised by appellant or not. This method of presenting the case for our consideration has greatly increased our labor and is very confusing. However, we shall follow as nearly as practicable the points raised as above outlined.

On the question of the defendant’s negligence, appellant’s counsel take the broad stand that the evidence of the witnesses who testified that the switch was apparently closed when the plaintiff’s train approached it from the south is absurd and incredible. The evidence of plaintiff, the engineer and the fireman on the plaintiff’s train as to this fact is corroborated by the evidence of the engineer and conductor of the Chicago Junction train which passed over the scene of the accident less than two hours before it occurred. These last mentioned witnesses were called by the defendant. The defendant also called a witness who testified that he had “searched the train records for' information as to trains operated over that north-bound track * * * just preceding the time of the accident,” and that his search showed that no other train had passed over the switch in the meantime. Notwithstanding this evidence, offered by both sides, appellant’s counsel insist that it is a practical impossibility for the switch to have been closed before the accident and open after the accident without wrecking the switch or switch-stand, or both. On this theory, the defendant called three witnesses, experienced railroad men, who gave their opinions to the effect that the wheels of an engine conld not thus “split a switch” without “buckling the tie rods;” and it clearly appeared that the tie rods were not “buckled.” Another of defendant’s witnesses, however, testified that there was a space or “play” between the points of the switch when fully opened and the rails of the main track amounting to four and one-half inches; that the flanges of the drive wheels were 1% inches in thickness; that the “gauge,” or distance between the rails of the main track, “measured from the inside of the ball of the rail,” was 4 feet 8% inches, and that the space between the inside of the flanges of the drive wheels is 4 feet 5% inches. The west switch point gradually curves to the east as it goes north, until it crosses the east rail. Hence, the space bounded by this curved rail on the west, the main track on the east, and the tie rod connecting the switch points on the south, is nearly in the shape of a right-angled triangle of which the tie rod forms the base, the east main track rail the altitude, and the curved switch rail the hypothenuse. The extreme width, therefore, of this triangular space is at the base of the triangle; and this extreme width, from the figures above given, is 4 feet and 4 inches. The width of the triangle becomes less, of course, at. every point further north. From this evidence, it does not appear that there is anything impossible or even improbable in the theory of the plaintiff that the flange of the drive wheel was caught in the east switch point and that the switch was thus forced open by the immense weight of the passing engine. If the flange whose width was only 1 y8 inches entered the east switch point in that manner, forcing the switch points that far to the west, there was still left a space of over three inches on the west side of the west switch point, between that point and the west rail; and that space was more than enough to allow the flange of the opposite drive wheel to pass through without injuring the switch or buckling the tie rods. Moreover, the fact that after the accident it was found that neither of the latches, or “dogs” above described was broken, tends to prove that while apparently closed, the switch was not completely closed, but partly open; for if it had been completely closed, the “dog” would have been broken in lifting the arm out of the fork in which it was designed to rest. It is also a fair inference from this fact that the train crew which last used the switch (viz: the crew that used it the afternoon before) did not press down the arm into the fork and under the latch, but left it resting on top of the latch. The evidence clearly shows that if the arm was in that position, the switch would appear to be closed while, in fact, it would be unfastened and in such a position as to be forced open by the passing flange of a car wheel. One witness for defendant gave his opinion that the arm of the switch-stand could not be thus forced over through a half circle from one side to the other of the switch-stand without breaking the castings; but several other experienced railroad men testified that almost any condition might result from such an accident. Unless we are to take the position that the five witnesses who saw the switch before the accident were all mistaken or wilfully testified falsely, and unless we are prepared to hold that the defendant’s failure to provide a lock was not negligence under the facts shown in this case, the verdict of the jury must be sustained. We see nothing in the evidence to justify us in taking such a position. It was the duty of the defendant to exercise ordinary care to maintain its switches and switch-stands in reasonably safe condition; and it was a question of fact for the jury to decide whether the failure to lock the switch, or otherwise make it reasonably safe, was negligence. So, also, under the circumstances shown regarding the operation of trains, the defendant was liable for the negligence of the employes of the Pennsylvania Railway Company in operating the switch, if their negligence was the proximate cause of the accident. Anderson v. W. C. S. R. R. Co., 200 Ill. 329; C. & G. T. Ry. Co. v. Hart, 209 Ill. 414. In either view of the facts, the verdict is not manifestly contrary to the preponderance of the evidence.

It is urged that the kind and character of switch required upon a railroad is an engineering question; that a railroad company cannot be required to adopt any particular method or any special device in order to comply with its duty to use reasonable care to make its railroad and appliances reasonably safe. There is no charge of negligence in construction in either the first or third counts of the amended declaration. The first count alleges negligence in permitting the switch-stand to become and remain defective. The third count alleges carelessness in operation of the switch. The only count to which the argument thus made could have any possible application is the second count, which alleges negligence in failing to provide and use a sufficient lock. But when the evidence is considered, even this possibility disappears; for all the witnesses agreed that there was a padlock chained to one of the ties, but that it had become broken and useless several weeks before the accident. Such a condition can hardly be said to be a matter of engineering construction, or to present any engineering question. The reasoning of the court in Kath v. E. St. Louis Sub. Ry. Co., 232 Ill. 126 and in C. W. & V. Coal Co. v. Brooks, 138 Ill. App. 34, is applicable to the facts of this case. The question of the negligence of the defendant in this respect was a proper question for the jury on the facts presented. C. & E. I. R. R. Co. v. Snedaker, 223 Ill. 395, 403.

It is next urged that it was error to admit evidence of a custom upon defendant’s railroad and upon other railroads to provide and use a lock on switch-stands. In view of the uncontradicted fact that such a lock was provided by tbe defendant for tbe stand in question, which it must be presumed was not merely ornamental but was intended to be used (Henderson v. C. B. & Q. R. R. Co., 73 Ill. App. 57, 62) the evidence regarding a custom to have such locks was unnecessary, and, in so far as it tended to prove a custom on other railroads, was probably inadmissible. C. R. I. & P. R. R. Co. v. Clark, 108 Ill. 113; Beidler v. Branshaw, 200 Ill. 425, 430. Evidence of a uniform custom as to the methods of doing work at the place of the injury has been held admissible as tending to prove negligence. Yeates v. I. C. R. R. Co., 241 Ill. 205; Campbell v. C. R. I. & P. Ry. Co., 243 Ill. 620. However, the court instructed the jury, at defendant’s request, that in determining whether the defendant had used reasonable care to keep the switch in a reasonably safe condition for operation they “should not take into consideration the testimony concerning the custom at other switch-stands and on other railroads of keeping switches locked or unlocked; the question for your decision in this respect is .whether or not the particular switch-stand in question was a reasonably safe appliance and was kept and maintained with reasonable ca.re.” We think that any error of the court in admitting such evidence, if it was error, was cured by this instruction.

It is next contended that neither the negligence of the defendant' in providing a broken lock, nor in leaving the switch partially unfastened, was the proximate cause of the accident. It is said that it was the plaintiff’s duty to see that the switch was securely fastened, and that the evidence shows that it was the plaintiff’s own neglect of duty in this respect, rather than the alleged negligence of the defendant, that proximately caused the accident. Without discussing this theory at length, it will suffice to say that under the evidence in this case, this was a question of fact for the jury and that in our opinion the evidence warranted the conclusion reached by the jury.

Complaint is made of the giving of one instruction and the refusal of three others. The objection made to the fourth instruction, in our judgment, arises from a misapprehension or misconstruction of the instruction. Appellant’s counsel assume that it applies to the Chicago Junction switching crew, when, in fact, it clearly has reference to the crew which “operated” the switch the afternoon preceding the accident. Each of the three refused instructions contains an assumption of fact and all were, morever, sufficiently covered by other instructions.

We have given careful consideration to the argument of counsel concerning the remarks of plaintiff’s counsel in his argument to the jury. While some of the language used by plaintiff’s counsel is open to criticism, we do not think that what was said was sufficient to justify us in reversing the judgment for that reason alone. Counsel make no claim that the verdict was excessive.

The judgment of the Superior Court will be affirmed.

Affirmed.


text:
    P. J. Cooney, Appellee, v. Mary A. Bonfield, Appellant.
    Gen. No. 17,079.
    1. Judgments — when vacated at subsequent term. A judgment entered at a prior term may be vacated by consent of tbe parties.
    2. Judgments — when jurisdiction to enter order vacating, waived. When a judgment is, on motion of defendant, vacated at a subsequent term, if plaintiff subsequently goes to trial on tbe merits without pressing a motion to vacate tbe vacating order, be waives bis objection to tbe court’s jurisdiction to vacate tbe judgment,
    3. Estoppel — inconsistent attitudes in legal proceedings. Where a defendant at every step raises tbe question of tbe court’s jurisdiction to enter judgment but reverses bis position when tbe court agrees with him, be cannot object to tbe application of tbe principle he invoked.

      4.. Judgment — where order vacating, correctly set aside. Where an order vacating a judgment is entered at a subsequent term it is correctly set aside for lack of jurisdiction when it does not appear that the opposite party waived bis objections to the jurisdiction or that bis acts after the entry of tbe order were misleading.
    Appeal from tbe Circuit Court of Cook county; tbe Hon. Merritt W. Pinckney, Judge, presiding. Heard in tbe Branch Appellate Court at tbe October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Burton & Kannally, for appellant.
    Michael D. Dolan, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

By this appeal, appellant seeks to reverse the action of the Circuit Court in vacating an order vacating a judgment entered against appellant and Louis Blodt for $41.63. The appellee, Cooney, brought suit before a justice of the peace against appellant and Blodt and on a trial before the justice, on October 5, 1906, the-suit was dismissed as to appellant and a judgment for $41.63 was entered against Blodt. Cooney appealed to the Circuit Court by filing an appeal bond with the justice on October 23, 1906, which was approved by the justice, and filed, together with a transcript, in the office of the clerk of the Circuit Court on April 16, 1907. Over two years later, April 21, 1909, at the April term of said court, the case was called for trial in the Circuit Court. The plaintiff appeared. The defendants were absent. A jury was called, the evidence heard, and a verdict returned finding the issues for the plaintiff and assessing his damages at $41.63. Judgment was entered on the verdict the same day against appellant and Blodt. At the May 1909 term, appellant filed her special appearance “for the sole purpose of contesting the jurisdiction” of the court to enter the judgment. On her motion, after notice to Cooney, the court ordered the execution recalled “forthwith”; and on June 19, 1909, on like motion, the judgment entered at the previous term was set aside and vacated “for want of jurisdiction.” The order states no facts showing any lack of jurisdiction, and the record fails to show any such facts. Thereupon, on motion of plaintiff’s attorney, it was ordered that “all papers and proceedings in said cause he and the same are hereby amended by making Mary A. Bonfield a party defendant herein.” In September, 1909, Cooney caused a summons to issue against appellant returnable to the October term, which was duly served, and at that term, she filed a second appearance “for the sole purpose of questioning and denying the jurisdiction of the court.” In May, 1910, on the call of the calendar, a second trial was had in the absence of the defendants and a judgment rendered against both defendants. Eleven days later, this second judgment was vacated on motion of the defendants. On June 7, 1910, the trial was “continued by agreement” to June 14, 1910, but was not reached on the call until July 5, 1910. On June 28, 1910, appellant moved to quash the summons on the ground “that a final judgment had been entered and said causé was at an end.” After some argument, this motion was denied. On July 5, 1910, Cooney made a motion to set aside the order of June 19, 1909, vacating the judgment entered at the April term. This motion was allowed and that order was vacated. Appellant’s attorneys then announced that she “was ready to proceed with the trial,” but were informed by the court that “no cause was pending before the court, ’ ’ by which remark it is conceded the court meant that as the first judgment was vacated after the term had passed, the order vacating the judgment had been entered without jurisdiction and was void for that reason.

Appellant’s counsel do not dispute this proposition as a general rule, but assert that the rule is subject to the exception that a judgment entered at a prior term may be vacated by tbe consent of tbe parties, and 'that the facts of this case, as above recited, bring it within this exception. Conceding that such an exception exists, we can not agree with this theory of the facts. The order vacating the April, 1909, judgment was entered entirely on motion of appellant “for want of jurisdiction” and after the court, on appellant’s motion, had peremptorily ordered the recall of the execution “forthwith.” There is no hint of consent, ' either expressed or implied, in the record of these orders. But it is urged that the consent of appellee is shown by his conduct and apparent acquiescence in the subsequent proceedings; and in support of this theory, several cases are cited in which parties, while nominally disputing the jurisdiction of the court, have nevertheless subsequently participated in a trial upon the merits, and were therefore held estopped by their conduct or to have waived all objections to the jurisdiction. If in this case appellee had gone to trial on the merits in July, 1910, instead of pressing his motion to vacate the order of June 19, 1909,, the cases cited would be in point, for in such case, he would be held to have waived his objection to the jurisdiction of the court. Such, however, was not the fact. So far as this record shows, appellee never raised the question of jurisdiction until he made his motion in July, 1910. Appellant’s counsel raised the question at every step until the court agreed with them, and then at once reversed the position they had maintained up to that time. They cannot be permitted to object to the application of a principle they have themselves-invoked. It does not appear that appellant was in any manner misled to her prejudice by anything done or omitted by appellee since April, 1909, while it does appear that the order vacating appellee’s judgment was entered after the court had lost jurisdiction. It was, therefore, properly set aside.

The judgment of the' Circuit Court will be affirmed.

Affirmed.


text:
    Frank A. Stewart, Appellee, v. James A. Soenksen et al., on appeal of James C. Soenksen, Appellant.
    Gen. No. 17,090.
    1. Negotiable instruments—presentation. If notes payable at a certain bank are in such, bank at maturity there is a sufficient presentment.
    2. Bills and notes—question for jury. In an action against endorsers of notes it is not error to refuse a motion to direct a verdict for the defendants on the ground that there was no presentment for payment and no notice of dishonor or waiver thereof where the evidence as to waiver is conflicting.
    3. Evidence—foundation for documentary. Where the records of a note teller - at the bank at which notes were payable are offered in evidence, a telephone conversation between the plaintiff and one who stated that she was an aunt of the note teller is admissible to prove his nonresidence.
    4. Evidence—where admission of exhibits harmless. Where the facts shown by exhibits are already established by other evidence, admission of the exhibits if improper is harmless.
    Appeal from the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.

      John F. Higgins, for appellant.
    Spencer Ward, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

Appellee (hereinafter called plaintiff) sued appellant (hereinafter called defendant) and C. H. Peterson, as indorsers on fifteen promissory notes for $100 each, with interest at 6% per annum, dated July 19, 1907, signed “James Soenksen Restaurant Co., By James Soenksen, President,” payable to the order of plaintiff at the Hamilton National Bank, Chicago, due monthly in succession from January 19, 1908 to March 19,1909, inclusive, and indorsed in blank by defendant and Peterson. The defendant claimed there was no legal presentment for payment and no notice of dishonor to the indorsers. Plaintiff replied that the notes were presented and that notice of dishonor was waived. After a jury trial judgment was entered in favor of plaintiff for $1753.50, from which judgment defendant has prosecuted this appeal.

The record shows that the notes sued on are the last 15 of a series of 20 notes, given as part payment for a restaurant sold by plaintiff to the James Soenksen Restaurant Company, a corporation, on July 19, 1907. The first two notes were transferred to the agent who negotiated the sale. The remainder were deposited in the Hamilton National Bank for collection by plaintiff, where the third, fourth and fifth of the series were paid by the maker in due course. None of the last 15 has been paid. None of them was protested, and no formal notice of dishonor was ever given to the indorsers. In December, 1907, plaintiff wrote to Peterson, at Tomahawk, Wisconsin, a threatening letter, to which Peterson replied: “You are well aware that I have to pay these notes if the Soenksen Rst. Co. don’t, but I will surely have my lawyer try to make them pay, before I come to the front. If the Nov. and Dec. notes are not paid by Jan. 10th why then I will pay the two of them. * * * I know how I stand all right, and also know that your notes will be paid as long as my name is on the back of them.” Plaintiff testified that he had several conversations with defendant, Soenksen, before the suit was brought, in one of which, some time in 1908, the latter told him in substance, that he was not then able to pay, and “asked for further time, and agreed to pay in the future,” if plaintiff “would not press him at that time.” Several of the notes were then past due. Defendant denied that any such conversation took place.

It is urged that the court erred in refusing to direct a verdict for defendant on this evidence. It is said that these facts do not show a legal presentment, nor notice of dishonor, nor a waiver of such notice. Defendant’s counsel concedes that if the notes were in the Hamilton National Bank when they severally matured, this was a sufficient presentment. He also admits that the record shows that all the notes in question were taken by the plaintiff to the bank and there deposited for collection. But he insists that the record does not show except by “the presumption of continuity” that the plaintiff did not take them away before they matured. There is no merit in the contention. The presumption or inference that he left them there is a reasonable one from the evidence, and is undisputed by any fact or circumstance in evidence.

Section 108 of the Negotiable Instruments Act of 1907 provides that notice of dishonor may be waived “either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.” Such waiver may be implied from a variety of facts and circumstances. “A promise to pay the whole or part, or to see it paid, or an acknowledgment that it must be paid, or a promise that he will set the matter to rights, or a qualified promise, or a mere unaccepted offer of composition, made by the person insisting on a want of notice after he was aware of the laches, to the holder of a bill, amounts to a waiver of the consequences of the laches of the holder, and admits his right of action.” Curtiss v. Martin, 20 Ill. 557, 572. In Tobey v. Berly, 26 Ill. 426, suit was brought against an indorser on two notes, and there was evidence to the effect that after the maturity of one of them, and before the maturity of the other, the defendant, on being informed that the first note had not been paid, wrote to the plaintiff; “As soon as the notes, with my indorsement are presented to me, I will see that they are paid.” The court held that the promise thus made with knowledge of the facts amounted to a waiver of proof of demand and notice. To the same effect are Givens v. Merchants Nat. Bank, 85 Ill. 442, and Wing v. Beach, 31 Ill. App. 78. The evidence as to the alleged waiver being conflicting, there was no error in refusing the motion to direct a verdict. Nor can we say from this record that the verdict is manifestly against the weight of the evidence.

Complaint is made of alleged errors in the admission of evidence and in giving the oral instructions. The records of the note teller of the bank were admitted as exhibits, and the only evidence as to the handwriting therein was to the effect that they were in the handwriting of one Medbury, whose alleged non-residence was proved only by what plaintiff learned from a telephone conversation with a woman who said over the telephone that she was Medbury’s aunt and that he had gone to Denver to accept a position there. The telephone conversation was admissible (Godair v. Ham Nat. Bank, 225 Ill. 572) and we think the evidence was prima facie sufficient to make the records admissible. Even if this be not true, the facts shown by such exhibits were already established by other evidence. Hence, even if the exhibits were improperly admitted, the error, if any, was harmless. Oldershaw v. Knowles, 101 Ill. 117. All of the remaining points are covered by the principles referred to in this opinion. .

The judgment of the Municipal Court will be affirmed.

Affirmed.