text:
    John Hartman, Appellee, v. H. A. Six et al., Appellants.
    1. Assumpsit—propriety of action by person for whose benefit promise is made. Where one makes a promise to another for the' benefit of a third person, such third person has an action on the promise, though the consideration does not move directly from him.
    2. Mortgages—how assumption may be made. The assumption of a mortgage indebtedness need not be made by a subsequent grantee in the deed itself but may be made in a separate instrument.
    Foreclosure. Appeal from the Circuit Court of Wayne county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the October term, 1909.
    Modified and affirmed.
    Opinion filed February 11, 1910.
    Rehearing denied March 23, 1910.
    Mills Bbothebs, for appellants.
    W. W. Shelley, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

By this appeal, two of the defendants in the court below seek to reverse a decree foreclosing a chattel mortgage.

The facts in the case are substantially as follows; On July 27, 1907, Edward A. Haynes entered into a written agreement with H. A. Six, selling him what is described therein, as ‘ ‘ 300 acres of timber growing on 400 acres of land” in Wayne county, Illinois. One of the provisions of the contract was that Six should clear at least 40 acres of land each year and upon his failure to do so Haynes could declare the contract void. On August 1, 1907, Six borrowed $1,500 from appellee, John Hartman, for which amount he gave his note of that date payable six months after date, with interest at the rate of seven per cent per annum from date and containing also the following provision: “If this note is not paid when due, I agree to pay all reasonable costs of collection, including a reasonable attorney’s fee, and also waive service of process and consent that judgment may be entered for these amounts by court, of record.” To secure this note Six gave appellee a. chattel mortgage upon the property above mentioned. About a month after the mortgage was given Six conveyed the timber property to Thomas A. Brown and James B. Osby, who agreed to pay the mortgage to appellee. Afterwards Brown and Osby entered into the following written contract with F. H. Pistorius and O. W. Pistorius:

“This contract entered into this 15th day of October, 1907, between J. B. Osby, party of the first part, and F. H. and O. W. Pistorius, parties of the second part. For and in consideration of $350 and 300 acres of timber located in Wayne county, Ill., owned by parties of the first part subject to mortgage of $1,500, we agree to pay. Parties of first part agree to convey all right, title and interest in above described timber for exchange for said consideration. Parties of the second part agree to convey to them 80 acres of land located in Perry county, Ill., subject to a mortgage of $1,600 to be assumed by parties of first part. Parties of second part reserve all timber on said 80 acres. Merchantable titles to be furnished by both parties. Said timber of 80 acres to be removed within two years from date.”

The said F. H. and C. W. Pistorius did nothing in the way of cutting and removing the timber in question. Appellee having been notified of the making of the contract went to the office of the attorney with whom it was deposited, examined it and investigated the question of the solvency of appellants. He testified that he received an answer from a bank in Decatur, stating that appellants were financially good and thereupon •consented to said sale and transfer of the property to appellants. On December 14, 1907, an agreement was made between Brown and Osby and appellants, concerning the satisfaction of annulment of the contract of April 15, 1907, in furtherance of which Brown and Osby signed the following statement which was written across the face of the copy of the original agreement:

“For and in consideration of $50 in hand paid by said first parties and the delivery of a quit claim deed to the 80 acres from said second parties, the original contract dated October 15, 1907, of which this is a copy is hereby satisfied and discharged and held for naught and I hereby agree to procure the original contract and mark same satisfied in full and return it to A. H. Mills, Decatur, Hlinois, within ten days of this date.”

Across the face of the original contract appear the words “null and void Dec. 23, ’07.” At the end of the year no timber having been removed, Haynes, the owner of the land, notified Six, Brown and Osby of his intention to declare a forfeiture of the contract, under which the timber was sold by him to Six. Afterwards, ■on May 8, 1908, appellee filed a bill to foreclose the chattel mortgage above named, making Six, Brown, Osby, F. H. Pistorius, O. W. Pistorius, Haynes and several others defendants. The bill asked for a decree for whatever sum might appear to be due appellee, together with costs and a reasonable solicitor’s fee and that in default of the payment of the same, by a short day to be fixed by the court, the mortgaged property be sold to satisfy debt and costs. Six, Brown and Osby did not appear and were defaulted. Appellants answered, alleging there was no other consideration for their said agreement with Brown and Osby than the covenants and agreements therein contained; that the consideration therefor had wholly failed; that the same was by mutual consent canceled and discharged and that they did not in writing or any other way, assume' the payment of the mortgage debt.

A decree was entered foreclosing the mortgage, directing the property to be sold to satisfy the debt and costs, including a solicitor fee of $100, finding that Six, Brown, Osby, F. H. Pistorius and C. W. Pistorius had assumed the debt, and providing that in case the property did not bring a sufficient amount to pay the debt and costs, the master should certify the amount of such deficiency in his report and that on confirmation of the same, they pay the amount of such deficiency and interest and that appellee have execution therefor.

F. H. and O. W. Pistorius were the only ones of the defendants below who appealed from the decree. They contend that the court erred in finding them personally liable for the debt to appellee and in decreeing that execution issue against them for any deficiency that might exist and also erred in allowing a solicitor’s fee of.$100 to be included in the costs.

While the contract between appellants and Brown and Osby of October 15, 1907, is not carefully drawn and is in some respects uncertain, yet the language used plainly shows that by it appellants assumed and undertook to pay the chattel mortgage of $1,500 to appellee. It is a well settled rule of law that where one makes a promise to another for the benefit of a third person, such third person has an action on the promise, though the consideration does not move directly from him. 1st Parsons on Contracts (5th Ed.) 458; Dean v. Walker, 107 Ill. 540; Bay v. Williams, 112 id. 91.

But it is insisted by appellants that even if they could properly be said to have assumed the mortgage indebtedness to appellee, by the contract of October 15, 1907, yet they were absolved from that obligation by the subsequent satisfaction and annulment of that contract by the parties thereto. Such is not the law in this state, whatever the rule may be in other jurisdictions.

In Bay v. Williams, supra, where it was held that the purchaser of mortgaged premises from the mortgagor who assumes payment of the mortgage debt, becomes personally liable to the mortgagee for the indebtedness, it is also further said: “The principle upon which this court has acted is that such a promise invests the person for whose use it is made with an immediate interest and right, as though the promise had been made to him. This being true, the person who procures the promise has no legal right to release or discharge the person who made the promise from his liability to the beneficiary. Having the right, it is under the sole control of the person for whose benefit it is made, as much so as if made directly to him.”

The assumption of the mortgage indebtedness need not be made by a subsequent grantee in the deed itself, but may be made in a separate instrument. Eggleston v. Morrison, 84 Ill. App. 625.

Hot only did appellants in the case before us, by the agreement of October 15,1907, assume the payment of the mortgage indebtedness to appellee but the proof shows that this was brought to the notice of appellant, who examined the contract and assented to its provisions. After that it did not lie in the power of appellants and Brown and Osby to rescind the contract, by which they assumed the payment of the mortgage indebtedness, and especially is this true in view of the fact that the parties appear to have ratified a portion of the contract and to have only attempted to rescind that portion providing for the conveyance of the timber land to appellants and the assumption of the mortgage indebtedness by them. The court below, therefore, properly held that appellants were personally liable for the indebtedness to appellee which they had assumed and the decree against them for any deficiency which might exist after the sale of the mortgaged property, was in conformity with the law.

There was error, however, in that portion of the decree which allowed the recovery of a solicitor’s fee of $100 to be taxed as part of the costs. While the note provided for the payment by Six of all reasonable costs of collection (including a reasonable attorney’s fee), yet the mortgage itself contained no description of the note and there was no provision therein for the payment of any attorney’s or solicitor’s fee. The mortgage therefore contained no notice to those who assumed it that they were expected to pay or were about to assume the payment of any solicitor’s fee, which would be sufficient to defeat the collection of this fee from appellants, even if it could otherwise be a proper charge here.

The decree of the court below will be modified here by striking out the allowance of $100 as solicitor’s fees, and as so modified will be affirmed.

Modified and affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice

license: Public Domain

text:
    Mattie Hanes, Appellee, v. Illinois Central Railroad Company, Appellant.

      Evidence—Tioio preponderance determined. While a jury should not wilfully disregard the testimony of witnesses and should take the number of witnesses into consideration, with all the other facts and circumstances in evidence, in determining where the preponderance lies, yet it is for them, who see the witnesses upon the stand and hear their testimony, to determine in ease of conflict, where the truth lies.
    Action in case. Appeal from the Circuit Court of Marion county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Rehearing denied March 23, 1910.

      W. W. Baer, Charles E. Eeirich, for appellant W. S. Horton, of counsel.
    C. H. Holt, Noleman & Smith, and W. F. Bundy, for appellee.
   Mr. Presiding Justice

Higbee delivered the opinion of the court.

The declaration in this case contained three counts, the first of which charged that on May 10, 1906, appellant was possessed of and operating a certain railroad, extending through the county of Marion and through a certain other place known as W. C. & W. crossing near Pinckneyville, Illinois, and elsewhere in said state, to the station of Groves on said railroad; that appellee, an infant 14 years of age, became a passenger at said W. C. & W. crossing, to be carried to the station of Groves and paid her fare; that she was directed by one of appellant’s servants to take a certain coach which she did; that when she reached Pinckneyville, appellant negligently switched said coach onto another division of said railroad without any notice or warning to appellee, and she was negligently and carelessly carried about one and a half miles beyond said last named station, when she was informed by the conductor that she was on the wrong train; that she was, by the defendant, then wrongfully and carelessly requested to alight from said train, and forced to walk back to said station of Pinckneyville, in the night time, over a long and dangerous trestle, past certain coal mines, through a dark and dangerous part of said village of Pinckneyville, and to carry a heavy grip, weighing 50 pounds; that thereby she was placed in-a position of great danger and by reason of her youth, was greatly terrorized and frightened and her strength overtaxed; that she fell through said trestle and injured her limb and back; that she suffered and will continue to suffer great pain and mental anguish and that her nervous system was permanently impaired and injured.

The second and third counts are substantially the same as the first, except that the third charges the conductor wrongfully and negligently caused appellee to alight from the train, at a dark and dangerous place. The general issue was filed and the trial resulted in a verdict and judgment in favor of appellee, for $1,250.

On May 10, 1906, appellee, then between 14 and 15 years of age, as it appears from the proofs, started over the Wabash, Chester & Western Railroad Company, from Mt. Vernon to her home at Groves, Illinois. This was her first trip alone, although she had previously been over the road with her parents. To reach her home, it was necessary for her to change cars at a railroad junction, about a mile north of Pinckneyville, where the tracks of the road, on which she started, crossed those of appellant. She arrived at the railroad crossing, known as the W. C. & W. crossing, shortly after seven o’clock in the evening, and bought a ticket over appellant’s road for Groves, which is about ten miles south of Pinckneyville. When appellant’s train arrived soon afterwards, she boarded it, and at Pinckneyville, the rear coach, in which she was seated, was cut off from the train, which ran to Groves and was attached to another train on what was known as the Eldorado division. When she gave the conductor her ticket, he discovered she was on the wrong train and so informed her. Some conversation took place between them, when the conductor ordered the flagman to stop the train and let her off. The flagman did as ordered, using his lantern to show her out to the ground. The train then passed on, leaving her by the track a mile and a half from Pinckneyville, with a heavy suit case and a can containing flowers. She started down the track, towards Pinckneyville, and was compelled to cross an open trestle, 195 feet long, 20 to 25 feet high with water below, and no foot board to walk on. It was quite dark and she tried to crawl across the trestle, but could not on account of her baggage, and in trying to walk and feel her way across, she slipped through falling on her suit case, bruising and skinning her foot and limb. At places there were woods along the track and to reach the depot, she had to pass through a portion of Pinckneyville where it was terrifying, if not unsafe for a woman to. pass. She finally reached the station at about ten o’clock P. M., very nervous, badly frightened and apparently almost in a state of collapse. At her request the station agent communicated by telephone with her father, and took her to a hotel, where she remained all night. When she reached home the next day, she was suffering with a chill and remained quite sick for three weeks. From that time until the trial, in February, 1909, she had been almost constantly under the care of a physician; had been unable to attend school or discharge her ordinary duties with regularity and her nervous system seems to have been severely and permanently impaired.

The proofs show that she had normal strength and health before taking the trip in question and that her condition was brought about by her having been compelled to walk back to the station at Pinckneyville from the place she was let off the train.

While there is little, if any contest concerning the facts, as above set forth, there is a sharp controversy in the evidence concerning the conditions and circumstances under which appellee came to leave the train. Appellee testified that at the crossing where she got on appellant’s train, the porter asked her where she wished to go, that che told him to Groves, and he then instructed her to get on one of the cars and pass through to the one next to it and that she followed his direction. On this ,point both the porter and the flagman, whose duty it was to assist and look after passengers getting on the train, and ascertain their destination, testified that they did not remember the fact of appellee getting upon the train that night. Appellee also testified that no announcement was made as to the destination of the car she was in, before the train reached Pinckneyville, while the flagman and porter testified that it was announced by both of them, that the car in which she was riding, went to DuQuoin, Benton and Eldorado and that the Murphysboro and Carbondale car was ahead. No specified announcement was made as to which of the cars went to Groves and even if the announcements were made as claimed by appellant’s employes, it does not appear that appellee would have understood from them which car would convey her to her home.

The conductor testified that he discovered appellee was on the wrong train when about a mile out of Pinekneyville; that he did not stop the train at once, but while conversing with her the train ran from a quarter to a half mile further, to a point 50 or 100 feet beyond the trestle; that he told appellee he would take her to DuQuoin and bring her back the next morning; that she would get home just as quick as she would by going back to Pinckneyville; that they were too far out of Pinckneyville to back up and the only chance for her to get back would be to walk; that she said she had to get back to Pinckneyville and would walk if he would stop the train and let her off; that he had no further conversation with her but the train was stopped and the flagman helped her off. The conductor was corroborated by the brakeman who stood by while the conversation took place, and to some extent by a passenger.

On the other hand appellee testified that when the conductor told her she was on the wrong train, she asked him what she should do and he told her either to pay her fare to DuQuoin or get off and asked her which she wanted to do; that she said she did not have any change; that he then said she would have to get off, pulled the bell cord and directed her to the back end of the coach; that the brakeman who stood there with a lantern, directed her back to town; that she had no money.

While a jury should not wilfully disregard the testimony of witnesses and should take the number of witnesses into consideration, with all the other facts and circumstances in evidence, in determining where the preponderance lies, yet it is for them, who see the witnesses upon the witness stand and hear their testimony, to determine in case of conflict, where the truth lies. Considering all the facts and circumstances in this case, we would not be disposed to disturb the verdict for the reason that the jury found the facts in accordance with the testimony of appellee. But apart from that, if we consider the uncontested evidence in the ease, or if it be admitted that the facts regarding the circumstances under which appellee left the train, were wholly as claimed by appellant, yet these facts appear to us to show that the acts of the conductor in stopping the train and letting this young girl off. at the time and place in question, were clearly negligent if not reprehensible. Small wonder that the girl was in a state of nervous collapse when she reached Pinckneyville and it might readily have been anticipated by appellant’s employes that even more serious consequences would follow their action, than those which actually resulted.

Complaint is made by appellant that appellee was permitted to prove the physical surroundings along appellant’s right of way from the point at which appellee left the train to Pinckneyville, on the ground that the case is not one in which damages can be recovered on account of physical surroundings, and because the evidence differed from the allegations in the declaration. We think the declaration was sufficiently broad to permit, if indeed it did not require, proof of the physical surroundings of the track between Pirickneyville and the place where appellee alighted, and the proof was also competent to show the conditions under which appellee received the injury complained of.

Criticism is made of the three instructions given by the court for appellee. These instructions, however, do not reasonably bear the construction placed upon them by appellant and they appear to ns to state the law, bearing upon appellee’s ease correctly, while 18 instructions given on behalf of appellant and stating the law most favorably to its side of the case, covered every phase of the defense.

The merits of the case are clearly with appellee. There was no substantial error in the trial of the cause and the damages under all the circumstances of the ■case, are not excessive.

The judgment of the court below will therefore be affirmed.

Affirmed.


author: Mr. Presiding Justice Higbee

text:
    Lindon L. R. Perrine et al., Defendants in Error, v. Nathan A. Reed et al., Plaintiffs in Error.
    1. Appeals ahd ebbobs—effect of absence of certificate of evidence. If there is no certificate of evidence in the record of a chancery cause, the Appellate Court can only consider those matters which appear from the pleadings and the orders and the decree.
    2. Wills—when real estate treated as personal property. Where a will directs real estate to be sold and the proceeds divided, chancery will apply the doctrine of equitable conversion and treat the gift as one of personal property.
    3. Wills—how question of vesting of title determined. In deter- . mining the question when an interest in property devised by will vested, the intention of the testator must be ascertained from the whole will.
    4. Wills—when remainder vests. Where a will devising real estate creates a life estate therein with remainder over to devisees-in the will, the remainder vests in the devisees at once upon the death of the testator. Meld, in this case, that this rule applied notwithstanding the premises in which the life estate was created were directed to be sold after the death of the life tenant and the proceeds divided.
    5. Wills—how trusts to be executed. Where a testator orders his real estate sold without saying who shall sell, a trust is created, and in such a case a court of equity will declare who is the proper party to execute such trust, or if no one is designated it will proceed to execute the trust by its own authority and direct a sale of the laud.

      6. Administration of estates—what not within power of administrator with will annexed. Even where a testator by his will appoints an executor and provides that he shall sell real estate and distribute the proceeds, the duties imposed are in the nature of a personal trust or confidence and do not devolve upon an administrator with the will annexed.
    Bill to construe will. Error to the Circuit Court of Marion county; the Hon. Samuel L. Dwight, 'Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed in part, reversed in part and remanded.
    Opinion filed April 9, 1910.
    W. F. Bundy, L. H. Jonas, Haley & Haynie and "William Gr. Murphy, for plaintiffs in error.
    Kagy & Vandervort, Charles H. Holt and Hole-man & Smith, for defendants in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

By this writ of error, it is sought to review a decree of the circuit court of Marion county, construing the will of Charles Perrine, deceased, and ordering the sale of certain real estate of which he died seized, and the distribution of the proceeds thereof. There is no-certificate of evidence in the record, filed in this cause and, so far as this court is concerned, only those matters can be considered which appear from the pleadings and the orders and decree entered in the cause by the court below.

The bill was filed to the September term, 1907, by Lindon L. B. Perrine and B. M. Perrine, sons, heirs at law and legatees of deceased, and G-rant Featherling, administrator de bonis non with the will annexed, of his estate, averring that said Charles Perrine departed this life testate, November 6, 1882, and that his will, in addition to disposing of his personal property, contained the following provision;

“I devise to my wife, Lucinda A. Perrine, to be held by her during her life, 99% acres of land situated in section 20 and 10, in the county of Marion, State of Illinois, being the same premises now occupied by me. At the death of my wife I direct that within such time as the proper court may determine and order, the real estate so devised shall be sold on the best possible terms, and that out of the proceeds after paying my funeral expenses and all just debts, the sum of $1,000* shall be paid to my daughter, M. Julia Perrine; that the sum of $1,000 shall be paid my daughter, Myrtilla Perrine; that the sum of $1,000 shall be paid my daughter M. K. Perrine; that the sum of $1,000 be paid to my son, Lindon L. B. Perrine.
“If, after paying the above sums, there shall remain a surplus, that surplus shall be divided equally between my said daughters, M. Julia, M. Kate and Myrtilla, and my son Lindon L. B. Perrine, Flora Perrine and Emma Perrine, daughters of my deceased son, David Perrine, a like sum between the two. My son, Bichard M. Perrine, shall have a like sum, out of which must be deducted a note I hold against him for the sum of $150, bearing date November 1, 1871, with interest from date at 6 per cent, the seeming distinction I have made between the first named and last named children arises from the fact that I have made large advancements to my sons, David and Richard.
“It is my will and I also direct that if my said daughters, or either of them, or my son Lindon, shall die before the decease of my wife unmarried or if married shall die without issue, then the amount directed to be paid to my said son and daughter or daughters, shall be divided equally between the survivors and paid to them; the above clause refers only to my daughters,. Julia, Kate, Myrtilla and my son, Lindon.”

That said deceased left surviving him his widow,. Lucinda A. Perrine, and his children, Lindon L. R. Perrine, R. M. Perrine, M. Julia Perrine, Myrtilla Perrine and M. Kate Reed, also two grandchildren, Flora A. Stevenson and Emma Stevenson, children and only heirs at law of David W. Perrine, a deceased son of said Charles Perrine, as his only heirs at law and legatees in his will; that said Charles Perrine died seized of the real estate named in the will; that shortly after Ms death the will was proven and his widow appointed administratrix with the will annexed, no executor or trustee having been appointed by the will; Lucinda A. Perrine, the widow, died March 11, 1898, leaving all of said children and grandchildren above mentioned, as heirs and legatees of said Charles Perrine, surviving her, except Myrtilla, who died prior to the death of her mother, unmarried and without issue; that M. Kate Eeed (formerly Perrine) survived her mother, but died soon afterwards without issue, leaving surviving her, her husband, Nathan A. Eeed, one of the plaintiffs in error; that on January 29, 1907, Grant Feathering was appointed administrator de bonis non with the will annexed of the estate of Charles Perrine, deceased, filed Ms bond and assumed the duties of his office; that all the debts of said estate had been paid and the provisions of the will performed, except that the real estate had not been sold and the proceeds distributed.

The prayer of the bill was that the interests of the parties to the bill in said real estate, be decreed to be interests in personal property; that a trustee be appointed to sell and convey the real estate and convert it into personal property; that it be decreed that the rights and interests of Myrtilla Perrine and M. Kate Eeed under said will, had never vested and that under the terms and conditions thereof, should be paid and vested in M. Julia Perrine- and Lindon L. B. Perrine; that the proceeds of said sale after the payment of costs, be distributed to the several parties entitled thereto, according to their rights and interests to be ascertained and decreed by the court.

At the January term, 1908, of said court, an amended bill was filed, substantially the same as the original bill, but further averring that Nathan A. Eeed was a person of unsound mind and asMng that a guardian ad litem be appointed for Mm; and the name of Grant Feathering, administrator de bonis non, was omitted from the complainants and he was made a defendant.

M. Julia Perrine filed an answer and a cross bill, admitting the main averments of the bill but averring the execution of a quit claim deed on May 24, 1890, by M. Kate Eeed, conveying to her all of Mrs. Eeed’s interest in said real estate.

It may be here said that the court below found against this claim of M. Julia Perrine to the ownership of the interest of her sister, Mrs. Eeed, and as no cross errors have been assigned, it is unnecessary to mention it further. W. O. Murphy was appointéd guardian ad litem for Nathan A. Eeed and filed an answer for him, claiming his deceased wife’s interest in the premises. Flora A. Stevenson and Emma Stevenson answered the original bill, admitting the material averments of the same and filed a cross bill asking for an accounting of rents and profits and that the court construe the will so as to determine who were the “survivors” of said Myrtilla Perrine and said M. Kate Eeed, and to determine the rights of such survivors under the will.

At the January term, 1908, A. D. Bodenberg was appointed trustee to sell the premises. On March 2, 1909, the trustee Bodenberg filed a report showing that on August 3, 1908, he had sold the premises for the sum of $7,030, and his report was approved by the court and the trustee ordered to Bring the proceeds of sale into court to be distributed under its decree. Later, Grant Featherling, administrator, etc., filed a petition, asking that the funds derived from the sale of said real estate be turned over to him by the trustee for distribution, which was denied. At the January term, 1909, a hearing was had and a general decree entered in the cause. The facts out of which the suit grew were found generally by the decree, as stated in the original and amended bill. The court further found, that M. Kate Eeed, M. Julia Perrine and Linden L. E. Perrine were the sole survivors of Myrtilla Perrine, and said M. Julia Perrine and Lindon L. E. Perrine were the sole survivors of M. Kate Eeed, as mentioned in the special bequest of $1,000 each to said four persons in said will and declared that the two survivors, M. Julia Perrine and Lindon L. R. Perrine were entitled to the whole of said special bequest of $4,000; that it was the intention of the testator the estate should not vest until the land was sold and converted into money and that such estate did not vest until August 3,1908, when the property was sold; that the rest of the proceeds of the sale after the payment of said special legacy of $4,000 belonged to and should be distributed as follows: To Lindon L. R. Perrine, Richard M. Perrine and M. Julia Perrine, each one-fourth, and to Flora A. Stevenson and Emma Stevenson, each one-eighth; that Nathan A. Reed had no interest in said estate or any part thereof and that Grant Featherling, administrator, etc., was not entitled to the control or custody of said funds or any part thereof. There were also certain findings concerning a note of Richard M. Perrine, the payment of rents and profits and other matters not questioned or necessary to discuss upon this hearing.

The court decreed in accordance with the findings above mentioned and the defendants, Nathan A. Reed, • Grant Featherling, administrator, etc., Flora A. Stevenson and Emma Stevenson, excepted to the decree and prayed an appeal to this court. They, however, never perfected the appeal but afterwards brought the ■ case here by writ of error.

Plaintiff in error, Nathan A. Reed, claims that the interest of his wife, M. Kate Reed, in said premises, vested either at the death of her father or at the latest at the death of her mother, in either of which events he would be entitled to her interest as surviving husband, she having had no issue. Plaintiffs in error, Flora A. Stevenson and Emma Stevenson, assert that the court below erred in decreeing that the real estate and the proceeds thereof mentioned in the will did not vest in the several beneficiaries immediately upon the death of Charles Perrine and in holding they did not vest until the premises were sold and converted into money; and also erred in decreeing that the special legacy of $1,000 to Myrtilla Perrine did not vest in her at the time of the death of her father and thereby descend to her heirs at law.

The first question to be determined is, whether or not the real estate, which was directed tó be sold and the proceeds divided among the beneficiaries as stated in the will, should in construing the will, be treated as real or personal property.

In the case of Lash v. Lash, 209 Ill. 595, the testator devised to his wife certain lands “to have and to hold, together with the rents and profits thereof, during her natural life, and at her death the above described lands shall be sold and the proceeds thereof shall be divided as follows, between my heirs, to wit: To my daughter, Eliza Jane Lash, I give the sum of $1,000, to my son James A. Lash I give the sum of $1,000. The balance' of the proceeds of the sale of the foregoing described land, shall be divided equally between my six children.”

It is to be observed that the terms of the will in the case above cited, are very similar to those in the case before us. In that case the court held: “The express direction of the testator that the lands should be sold after the death of his wife and the proceeds of such sale divided among appellant and other of the children of the testator, not in' the proportions in which they would inherit under the statute of descent, but in amounts or in proportions as fixed upon by himself and specified in the will, effected an equitable conversion of the land into money, and the bequests of the proceeds of the sale to the appellant and other legatees are to be regarded by the courts as bequests of personal property and not as devises of interests in the land. Baker v. Copenbarger, 15 Ill. 103; Crerar v. Williams, 145 id. 625; In re matter of Corrington, 124 id. 363; Dorsey v. Dodson, 203 id. 32.”

And it was also held that the conversion of the land into money was to be considered as having been effected at the time of the testator’s death, although the sale of the land was to be postponed until after the death of the life tenant. The above case and those referred to in it, state the well known general rule, that where a will directs real estate to be sold and the proceeds divided, equity will apply the doctrine of equitable conversion and treat the gift as one of personal property. Applying that rule to this case, Nathan A. Beed would, under our statute of descent, be •entitled to all of his wife’s share in said property, if it was vested in her at the time of her death.

In determining the question when an interest in property devised by will vests, the intention of the •testator must be ascertained from the whole will. Eldred v. Meek, 183 Ill. 26; Brechbeller v. Wilson, 228 id. 502.

It is claimed in the brief of plaintiffs in error that the estate in this case became vested in the beneficiaries at the death of the testator, or if not then, upon the death of his widow. It cannot be questioned that it is a general rule that where a will devising real estate, creates a life estate therein with remainder over to devisees in the will, the remainder vests in the devisees at once upon the death of the testator. 4 Kent’s ■Com. 202. But the question is, does that rule apply to this case where the premises were directed to be sold after the death of the wife and the proceeds divided.

A case bearing somewhat upon the one before us, upon the question under consideration, is that of Strode v. McCormick, 158 Ill. 142. That case involved a trust deed containing provisions that certain real •estate should go to trustees for the benefit of the grantor’s wife during her lifetime, with directions for said trustees at her death to sell and dispose of the same and divide the proceeds equally among the children of the grantor and his said wife. The two then had six living children, but when the time arrived for the sale and distribution only three children survived,, and it was said by the court, “these three children, and they only, were within the description of those among whom the division was to be made. No one other than a person who could, at the time of the death of Mary B. Strode, predicate of himself or herself that he or she was one of the children of James M. Strode and issue of his marriage with Mary B. Strode could rightfully claim anything under and by virtue of the deed.”' And it was later said in speaking of one of the children who died prior to the death of his mother, “If" he had survived the event of his mother’s death, then his right to share in the division of the proceeds of the lot would have vested and taken effect both in interest, and in possession; but as that contingency did not happen, his contingent remainder was defeated by his dying seven years prior to the death of his mother;” and it was held, that the heirs and devisees of the deceased son, could have no right or interest either in the lot in question or the proceeds to be derived from its sale.

On the other hand defendants in error cite several authorities to sustain their position that the estate did not vest until the period of distribution arrived. In one of these cases, Starr v. Willoughby, 218 Ill. 485,. the will provided that as soon as practicable after the death of the testator, all real estate owned by him and not mentioned in certain other clauses of his will, should be sold and the proceeds, after deducting an amount sufficient to purchase a home for his widow, should be divided “among such of my children as may be living at that time.” It was held by the court that the words quoted referred to the time of distribution and that the children took no vested interest before that time. The language of the will however in that case,, plainly referred to the time of distribution. Another case referred to, is that of People v. Jennings, 44 111. 488, where a testator provided that his real estate should be sold by his executors as soon after his death as convenient, and the proceeds thereof, after the payment of debts, etc., should be divided equally among’ his four children and in case of the’ death of a child, the children of such deceased child should take the share of their parent. One of the children died before the land was converted into money, leaving a widow and children. It was held that the deceased child of the testator took no vested interest in the parent’s estate and therefore his widow had no interest therein, but the same went directly to the said child. This was clearly the correct interpretation of the will, as the instrument itself directed where the property should go. The holding in the case last referred to is approved in Barnes v. Johnston, 233 Ill. 620, also relied upon by defendants in error, but in the last case it is said: “While the law favors the vesting of estates and will fix the time at which they vest at the time of the death -of the testator rather than at the period of distribution, when, however, it appears from the entire will that it was not the intention of the testator that the remainder should vest at the time of his death but at the period of distribution, such intention will be carried out by the courts.”

We are of opinion from a reading of the whole will, that it was the intention of the testator in this case, that the property in question should vest absolutely in the parties named as his beneficiaries at the time of the death of his wife and not at the time of distribution of the proceeds of sale. It is said in the will “At the death of my wife, I direct that within such time as the proper court may determine and order, the real estate so devised shall be sold on the best possible terms,” and provides that out of the proceeds, there shall be paid certain sums to four of his children, etc. He also directs what shall be done with the special legacies to said four children in case either of them should die before the decease of his wife without' issue. It is evident that the testator had in his mind that his wife should have the use of the estate during her lifetime and at her decease the persons named in the will should have the enjoyment of it, but that it should not vest in them until her death. We therefore think the court below erred in decreeing that the estate did not vest until the distribution was made.

The sale of the premises was postponed for more than ten years after the death of the widow and circumstances might have arisen under which it could have been deferred for a longer period, when, possibly, all but one of those named in the will were dead, in which case, under the contention of defendants in error, the one surviving would have taken all the proceeds of sale. Such was plainly not the intention of the testator. From what is above said, it follows that M. Kate Reed had a vested interest in said estate at the time of her death and that her husband, the plaintiff in error, Nathan A. Reed, is entitled to the same and the court below improperly found that he had no interest in said estate or any part thereof.

We cannot assent to the claim of,plaintiffs in error, Flora A. Stevenson and Emma Stevenson, that they are entitled to an interest in the $1,000 bequeathed to Myrtilla Perrine, who'died before her mother, and this holding is independent of the question whether the general estate vested at the time of the death of Charles Perrine, or not until the death of his wife. The will provided for the payment of a sum of $1,000 each to the three daughters, M. Julia Perrine, Myrtilla Perrine, M. K. (Kate) Perrine and the son, Lindon L. R. Perrine, after the payment of debts and funeral -expenses. Later in the will it was provided that if his said daughters or either of them, or his son Lindon, died before the decease of his wife unmarried, or if married, without issue, “then the amount directed to be paid to my said son, and daughter or daughters, shall be divided equally between the survivors and paid to them; the above clause refers only to my daughters Julia, Kate, Myrtilla and my son Lindon.” .It appears clear to us that the word “survivors” used in this clause, can refer only to the survivors of the three daughters, who were the only daughters of the testator, and the one son Lindon, and that it was the intention of the testator that should any of the four die before the death of his wife without issue, the share of the one so dying should go to the survivors of the four. Therefore, Myrtilla, having died before the death of her mother, had no such interest in the special bequest of $1,000 as could descend to her heirs at law generally.

The contention of Grant Featherling, as administrator de bonis non, that he is entitled to have the fund derived from the sale of the land, turned over to him for distribution, also appears to us to be untenable. Even where a testator by his will appoints an executor and provides that he shall sell real estate and distribute the proceeds, the duties imposed are in the nature of a personal trust or confidence and do not devolve upon an administrator with the will annexed. Nicoll v. Scott, 99 Ill. 529; Bigelow v. Cady, 171 id. 229; Penn v. Fogler, 182 id. 76.

"Where a testator orders his real estate sold without saying who should sell, a clear trust is created. A court of equity will not hesitate in such case to declare who is the proper party to execute the trust; or if no one is designated it will proceed to execute the trust by its own authority and decree a sale of the land. 2 Story’s Eq. Jur., sec. 1059.

It having become necessary to call upon a court of chancery to appoint a trustee to sell, and as the debts of the estate appear from the pleadings in the case to have been fully paid, there was no reason why any portion of the fund derived from the sale should be paid to the administrator de bonis non; but there was every equitable reason why a court of chancery, having once taken jurisdiction of the matter, should complete the business for which the trustee was appointed, by directing bim to distribute the fund derived from the sale.

It appears however that said administrator had in his hands the sum of $126.97 he had collected as rents of the premises, which he was ordered by the court to-pay to the trustee for distribution. This was error. The trustee had no power to collect rents. All he could do was to sell the land and divide the proceeds. Whether the administrator de bonis non had authority to receive the money he did for rents, is immaterial here. He, having in fact received them, must distribute them tó the parties entitled to the same.

The decree under consideration is in part affirmed and in part reversed and the cause remanded to the court below with directions to enter a decree in accordance with the views herein expressed.

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


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    John McInturff et al., Appellees, v. Insurance Company of North America, Appellant.
    1. Instructions—when cannot he complained of. A party cannot be heard to complain that the opposite party has given instructions upon the same theory of the law that it itself has adopted in its .instructions to the jury as controlling the case.
    2. Insurance—when proofs of loss waived. Proofs of loss are waived where it appeared that the company’s agent was notified of the loss, the company’s adjuster came, inventories were made, offers of compromise submitted and rejected and formal arbitration entered into followed by an award.
    3. Evidence—when transcript of testimony of deceased witness incompetent. In an action to recover for an insurance loss the testimony of a deceased witness which was given in a criminal prosecution for arson is not competent in support of a defense predicated upon a charge of arson because of the lack of identity of parties.
    Assumpsit. Appeal from the Circuit Court of Pulaski county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    W. A. Spauh and George E. Martin", for appellant.

      Wall & Caster, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

By this appeal, appellant presents for review by this court, the record in a case wherein appellees recovered a judgment for $3,952.23 for loss by fire of property covered by insurance policies issued by it.

The points relied on by appellant for reversal, are that the verdict in the case is contrary to the evidence, that certain instructions given for appellees were erroneous, that appellees failed to make sworn proof of loss as provided for by the policies of insurance, and that the court erred in refusing to admit certain evidence offered by appellant.

The proofs showed that appellees had insurance in appellant company amounting in all to $8,400, covering two dwelling houses, household furniture, a barn, horses, mules, cattle, hay, grain, etc. Three thousand dollars of the insurance was upon the dwelling house in which they lived and $2,000 upon household furniture. This suit is concerned with the dwelling house, which was totally destroyed by fire, and the furniture therein, the greater portion of which was destroyed or damaged. At the time of the fire, which occurred at 11 o’clock A. M. on March 13, 1908, John Mclnturff, one of the appellees, was absent from home in the city of Cairo, some 13 miles distant. His wife, Sarah Mclnturff, the other appellee, four of their children, her sister-in-law, Mrs. Thomas Blay, and one of her children were engaged in washing clothes. When the fire was discovered near the flue, into which extended the pipe leading from the stove used by them in heating the water, an alarm was given by ringing the bell and otherwise and some of the neighbors came to render assistance, but it appears to have been impossible to save the house. Three days before the fire, appellees having ascertained that they had two policies of insurance of $750 each on a dwelling house on another part of their farm, upon which they claimed they only desired to carry one policy of $750, requested appellant’s agent to transfer one of the policies to the house in which they lived, which was the one afterwards destroyed by fire. The agent told them that the unearned premium on one of the policies would pay for $500 additional insurance on their own dwelling house and this was added thereto, the amount before that time carried thereon being but $2,500. At the same time additional insurance appears to have been taken out on other property which was not destroyed by the fire.

The proofs showed, and it is not seriously contested by appellant, that the house which was destroyed, was worth more than the $3,000 for which it was insured, and while there was some contest as to the value of the furniture burned and damaged, the proofs appear to show that the amount recovered for the same was not excessive.

Appellant’s agent at Mound City, who issued the policy, was notified of the fire and the next day went out to view the premises. Later, on April 8th, the agent and an adjuster for appellant, came out. No settlement was then made but it was agreed that these same parties should meet again with appellees on April 15th, at which time appellees were to present a list of the property destroyed. They met on the day last named and appellee presented his list but no settlement being made, negotiations were continued until April 16, 1908, at which time a lengthy submission to arbitration was entered into and signed by appellees and appellant, the form employed evidently being one used by appellant in its business. The appraisers took an oath which they signed and appointed an umpire who was also sworn, and as provided for in the form of arbitration used, and later the appraisers and umpire made .a report in writing, by which they awarded appellees for loss on their dwelling house $2,326.73 and on furniture $1,533.98 making a total of $3,860.71. Appellant however afterwards refused to pay the award and this suit resulted.

The defense set up by appellant was, and is, that appellees wilfully burned the house and contents or caused the same to be done with intent to defraud appellant, that they made false representations as to their loss and refused to furnish proof of loss as required by the policies. While there was some proof tending to show a guilty intent to burn the house on the part of appellees, yet the great weight of the evidence, as admitted, supported appellees’ contention that the burning of the house was an accident and due in no manner whatever to any intention on their part to burn the house or cause the same to be done or to injure appellant, and upon the facts the jury could not have reasonably done otherwise than to find for appellees.

The instructions given for appellees which are complained of by appellant, told the jury, that before they could find the plaintiffs guilty of wilfully burning the property in question, or causing the same to be done, they must so believe from the evidence beyond a reasonable doubt. It is unnecessary for us, however, to discuss the question whether in a civil case a criminal charge must be proved beyond a reasonable doubt, for the reason that appellant itself gave instructions requiring the same measure of proof. Appellant, of course, cannot be heard to complain that appellees have given instructions upon the same theory of the law that it, itself, has adopted in its instructions to the jury as controlling the case. B. & O. S. W. Ry. Co. v. Wheeler, 63 Ill. App. 193; Springer v. Chicago, 135 Ill. 552; Baker v. Fawcett, 69 Ill. App. 300.

Appellees ’ defense to the charge that they had failed to furnish sworn proofs of loss as required by the policies, was that the same had been waived on the part of the company. In this case the company’s agent was notified, the adjuster came, inventories of the items of loss were made and offers of an amount in compromise of the claim made by the adjuster. This being refused, written articles of submission to arbitration were entered into and an award made by the arbitrators and umpire provided for by the same, which appellant refused to pay. It is hard to imagine how a clearer or more emphatic waiver of sworn proof of loss could be made by appellant than was done.

The most important question submitted however, and the one upon which appellant apparently places its greatest reliance for a reversal of the judgment, is that relating to the refusal of the court to admit certain evidence offered by it. After the burning of the property in question appellees were arrested for arson upon information furnished by Thomas Blay, a brother of appellee, Sarah Mclnturff, with whom she and her husband had had some trouble. Upon the trial which resulted in appellees being acquitted of the charge, Blay was a witness against them. Subsequently, while appellees and Blay were at Illmo, Missouri, waiting for a train, Blay was shot and killed by appellee, John Mclnturff. Mclnturff claimed that he was attacked by Blay and killed him in .his own necessary self-defense. A coroner’s jury which investigated the matter, fully exonerated Mclnturff for his act. At the trial of this case it was sought to introduce a transcript of the testimony given by Blay in the criminal prosecution against appellees for arson, but this proof was ruled out by the court. From this transcript, which is in the record, it appears that Blay, who had been a convict in the Missouri State penitentiary, soon after his release and some months prior to the fire in question, came to appellees ’ farm where they gave him and his family a house to live in and furnished him with some personal property; that after the fire Blay refused to surrender the personal property to appellees and a replevin suit was instituted against him for the same; that subsequently Blay charged appellees •with burning the house; that as testified to by Blay, appellees between January 1, 1908, and the time of the •fire, offered him both money and property to set fire to the house; that appellee, John Mclnturff, took him up into the attic of the kitchen of said house, where the-fire that destroyed the house, apparently originated, and showed him preparations that had been made for firing the house, consisting of a pile of old clothing, rags and papers piled around the flue with a candle lying on the floor and a can, which he thought contained coal oil, standing near; that after the fire appellee, Sarah Mclnturff, admitted her guilt to him.

A great many cases have been concerned with the question when the testimony of a deceased witness given in another trial is admissible in a case and much has been written upon the subject; but in this state, while the matter has been referred to a number of times in the opinions of our higher courts, no general rule governing the question has been laid down. A satisfactory statement of the rule is that laid down in Elliott on Evidence, Yol. 1, secs. 495, 508 and 517, which states, in substance, that such testimony is admissible only under the following circumstances: First, that the person against whom the testimony is offered had the right and opportunity to cross examine the witness when he was examined at the former trial. Second, that the matters in issue were substantially the same in both cases. Third, that the proceedings were between the same parties or their privies in estate, in blood or in law. In this case, appellees had the right and opportunity to cross examine the deceased witness at the former trial under their indictment for arson. The question whether appellees wilfully and maliciously burned or caused to be burned their dwelling house was also the main question in issue here, although there were other questions involved in the present suit with which the other suit was not concerned; but the two suits or proceedings were not between the same parties or their privies in estate, in blood or in law.

The question as to how literally- the rule that the proceedings in the two cases must be between the same parties or their privies, must be complied with, is a mooted one and the reported cases of different jurisdictions and the writers upon the subject are not altogether in harmony.

One of the best considered cases upon the subject is Metropolitan St. Ry. Co. v. Gumby, 99 Fed. Rep. 192 (39 C. C. A. 455), decided by the circuit court of appeals of the United States for the Southern District of New York. That was a suit brought by the mother of a child who had been injured by a street railway, for loss of services. Upon the trial the mother offered in evidence the testimony of a witness who was dead, but who had testified in a former suit by the grandmother, as guardian ad litem of the child, against the same defendants, to recover for the pain, suffering, etc., of the child. In that case some twenty of the leading authorities are reviewed and it is there held, that it is not sufficient to entitle the evidence of a deceased witness to be read in a subsequent suit that it should appear that the same issue was involved, that the witness testified under the sanction of an oath, that he was confronted with the person against whom the testimony was offered and that the latter had the opportunity of cross examination, but that it must appear either that the parties were the same, or that the change of parties was not a substantial one, as for example, a change by which one of the opponents is omitted or by which a merely nominal party is added; or as where one was an executor or a grantor of another, and it was held that the testimony of the deceased witness in the case brought by the grandmother of the child, was not admissible in the suit brought by the mother. The difference between the two suits we have under consideration was quite marked; one was a criminal suit and the other a civil suit, one brought in the name of the People of the State of Illinois against appellees to which suit appellant here, could not be a party, while the other was brought by appellees against appellant, and the People of the State of Illinois could not be a party.

From a consideration of the authorities, we have arrived at the conclusion that the difference in parties between the two suits was so substantial as to justify the court below in excluding the evidence of the deceased witness Blay.

The judgment of the court below will be affirmed.

Affirmed.

Mr. Justice Duncan, having tried this case in the court below, took no part here.


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    The Healy Ice Machine Company, Appellee, v. H. M. Parks, Trustee, Appellant.
    1. Mechanic’s mens—what compliance with contract sufficient to sustain. If a lien claimant has substantially complied with the terms of his contract he is entitled to a lien if all other proceedings are Tegular.
    2. Mechanic’s men—when given preference over lien of ’bondholders. A mechanic’s lien will be given preference to the claims of ’bond-holders notwithstanding it is predicated upon a contract made after the creation of the rights of the bond-holders if such contract is but supplemental in character to a previous contract which antedated the rights of such bond-holders and did not cast upon the property in question any burden in addition to that imposed by the original contract.
    Mechanic’s lien. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    Colp & Ferrell, for appellant; Denison & Spiller, -of counsel.
    Barry & Crowley and Hartwell & White, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion <of the court.

On June 14, 1906, appellee entered into a written agreement to erect for the J ohnston City Ice and Bottling Company, hereinafter called the Johnston Company, in a building of the latter, at Johnston City, Illinois, an ice-making system including two improved ice-making machines, with steam engine, condenser, freezing tank and a number of other things necessary for the completion of the system and mentioned in the contract, for the sum of $20,000, $5,000 of which was to be credited the Johnston Company for second-hand machinery, turned over to appellee, one-third of the balance of $15,000 to be paid as the machinery was •shipped, one-third to be paid when the plant was completed and turning out 30 tons of ice every twenty-four hours, consecutive operation, and the remaining third to be included in a three months’ note with the privilege of renewal for three months, if the J ohnston Company should so desire. Appellee proceeded with the work which was delayed from time to time by various mishaps, for which as it would appear one party was at ■certain times responsible and at other times the other party was responsible. The Johnston Company made payments from time to time as the work progressed, but on November 16, 1907, appellee filed a claim for a mechanic’s lien against its property, for a balance said to be due on the contract price for $6,945.30, stating that on or about the 5th day of August, 1907, appellee had completed everything required of it to be done by said contract. The Johnston Company, however, claimed that appellee had not completely fulfilled its contract and after some negotiations between the parties and to settle their differences, the parties on November 26, 1907, entered into a supplemental contract, which it was agreed should be attached to and become a part of the original contract. By the supplemental contract, appellee was to furnish certain •other material and to do further work and the Johnston Company was to furnish and pay for certain labor in the doing of such work and to make arrangements for the payment of the balance due appellee on the original contract. Such contract also guaranteed that the plant, when finished, would turn out 30 tons of good merchantable ice every 24 hours of consecutive operation.

On December 31, 1906, the Johnston Company executed a trust deed upon the premises where their plant was located, to secure the payment of $20,000, represented by 40 bonds of $500 each, all dated January 1, 1907, due in five years after date with interest at the rate of six per cent per annum from their date. Bonds to the amount of $14,000 were issued and placed in -the hands of bona fide holders as collateral, for money borrowed by the Johnston Company, prior to the execution of the supplemental contract. After the completion of the supplemental contract, as claimed by appellee, the. Johnston Company refused to pay the balance due for the reason, as alleged by the Johnston Company, appellee had failed to do all those things required of it to be done by such contract.

On September 15, 1908, appellee filed its bill to enforce a mechanic’s lien upon the property, making the Johnston Company and appellant, Parks, the trustee named in the trust deed, defendants. In the bill appellee alleged, among other things, that it had completed all the work required to be done by it under the supplemental contract, on or about April 24, 1908, and would have been able to have said plant in operation on or about March 1,1908, but for certain delays occasioned by causes beyond its control. That after the completion of certain alterations, appellee furnished the services of a skilled engineer, together with certain material in and about the adjustment and betterment of minor devices and apparatus connected with said ice-making plant; that the last of said labor and material were furnished by appellee on May 16, 1908, and that there was due appellee the sum of $6,945.30.

An answer was filed by the Johnston Company, denying that appellee had complied with the terms of the two contracts and claiming certain credits, and by H. M. Parks, the trustee, also making substantially the same denials and setting up the execution of 'the trust deed and the issuing of the bonds as aforesaid. On the hearing by the chancellor, contested credits were allowed the defendants to the bill, amounting to $2,523.52, which added to credits which appear to have been agreed upon of $14,445.19, made a" total of $16,967.77, leaving a balance due on the contract of $3,032.29, which amount the court decreed appellee was entitled to, with interest thereon at the rate of five per cent per annum, from April 24, 1908, to the date of the decree, making a total of $3,226.01. The trustee, H. M. Parks, alone appeals, alleging as error, in substance, that the court erred in finding the issues in favor of appellee, in fixing the amount due appellee at $3,032.29, in allowing interest from April 24, 1908, to the date of the decree, in decreeing that the amount found due was a lien upon the real estate of the Johnston Company, described in the decree, in decreeing that the amount found due appellee was a prior lien to the lien created by the trust deed to appellant and also a prior lien to the $14,000 bonds issued and negotiated before the execution of the supplemental contract, and in its rulings on the admission and rejection of evidence.

On the hearing there was evidence on the part of appellant tending to show that appellee had not fully completed the contract and that the Johnston Company had been injured by loss of time in completing the plant, by imperfect ice made, and on the other hand there was proof showing that the Johnston Company had waived portions of the contract or agreed to substitutions of material, that the water furnished by it was in some respects unsuitable for the purpose and that appellee was delayed in its work by the failure of the Johnston Company to perform certain things which devolved upon it to do. It would seem from an examination of the record that in some respects the ■contract had not been fully completed but as to who was to blame for this condition and whether or not the • full completion was waived by the Johnston Company, were matters difficult of determination. Appellee in good faith used evqry endeavor to fulfill its part of the contract and upon the whole we are satisfied that so far as it is concerned, the terms of the contract have been substantially complied with, which is all that is Tequired to establish a lien. Keeler v. Herr, 157 Ill. 57; Concord Apart. House Co. v. O’ Brien, 228 id. 360.

In determining the amount due appellee the court ■considered numerous items of credit claimed by the Johnston Company, some of which were rejected but the great majority allowed. In addition to the credit of $14,445.19 which it was admitted by appellee the Johnston Company was entitled to upon the contract price of the machine, the Johnston Company was allowed the further sum of $922.52 for expenditures made by it which were properly chargeable to appellee, $800 to make the plant “fulfil in all particulars its full capacity,” and $800 more for damages for the rental value of the plant during the delay in completing it, "in all $2,522.52 and making the total credits upon the ■contract, $16,967.71.

; The question of credits appears to have been fully considered by the court below and upon consideration ■of the same, we are satisfied that the court arrived at a just and equitable conclusion in regard to the same.

It is contended by appellant that the court should not have allowed interest on the balance due from April 24, 1908, to the date of the decree at the rate of 5 per cent per annum, and with this contention we agree, for the reason the contract should not be treated as legally completed until May 23, 1908. The supplemental contract, however, provided for interest to be paid at the rate of 6 per cent per annum from the date of the completion of the work until final payment, and as the interest at 6 per cent per annum, when computed from May 23, 1908, to the date of the decree, amounts-to more than was really allowed for interest, appellant has no just cause of complaint. If, as above found, the amount decreed to be paid appellee, is due it under the original and supplemental contract, then as between appellee and the Johnston Company, it was proper that it be declared a lien upon the premises of the latter named in the decree. But it is claimed by appellant, that even if that position is correct, the same should not have been decreed to have been a prior lien to those bonds secured by the trust deed, which were1 issued prior to the execution of the supplemental contract. We do not think the position of appellant tenable for the reason that the supplemental contract was-really only a continuation of the original contract. No new or additional consideration ;was by the supplemental contract to be paid appellee beyond the original contract price of $20,000, but the time for the completion of the work was extended and appellee was to do certain other work and furnish .additional material. The holders of the bonds could not be injured by the supplemental contract for the reason that they must be held to have bought them with the understanding that there would be a lien upon the premises, for the amount of $20,000, less such payments as might be made prior to the completion of the contract, and the extension of the time of payment, which under all the circumstances of the casé was just and equitable, did not cast any additional burden upon the premises, but in fact permitted the doing of work which rendered them more valuable, and the lien of appellee was therefore rightfully made a prior one to that of the bond holders.

The objections made by appellant as to the rulings of the court, upon the admission and rejection of evidence, do hot appear to us to be of material importance, nor to be well taken. It is further claimed by appellant that the lien should not be sustained for the reason that it was not filed within four months from the completion of the contract, but as it appears that the final work was done and last material furnished by appellee on May 23, appellee’s contract was not fully complied with until that time and the bill in this case, having been filed on September 15, 1908, it was within the required limit of four months. In this case ■substantial justice appears to have been done and there being no errors in the record so material as to warrant a reversal, the decree of the court below will be affirmed.

Affirmed.

This case was tried in the court below by Mr. Justice Duncan, who therefore took no part in the hearing of the same in this court.


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    George Dabney et al., Appellees, v. John J. Manion, Appellant.
    1. Statute of limitations—what applies to action under section 8 of Dram-shop Act. An action brought under section 8 of the Dram-shop Act is penal in character and must be commenced within two years after the cause of action accrued.
    2. Dbam-shops—what does not preclude recovery under section 8 of Act. A recovery may be had under section 8 of the Dram-shop Act notwithstanding it may appear from the evidence that others beside the defendant contributed to the intoxication which resulted in the injury complained of.
    Action in debt. Appeal from the Circuit Court of Marion county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 9, 1910.
    Noleman & Smith, Rufus M. Potts, Alfred Adams, and Roy A. Nutt, for appellant.
    Charles H. Holt, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion •of the court.

This was an action in debt brought under section 8 of the Dram-Shop Act, by appellees, to recover compensation for services rendered their son, William Dabney, who lost a leg by reason of an accident alleged to have been caused by his intoxication, produced by liquor sold him by appellant.

The declaration consisted of two counts, which were ■substantially alike. The praecipe for summons was filed September 16, 1908. The declaration which was filed two days later, charged that appellant sold intoxicating liquor to William Dabney on June 8,1906, in the city of Salem in Marion county, whereby said Dabney became intoxicated and by reason thereof on the same day, wandered upon a railroad track where his left leg was crushed by being run over by a train, so that it became necessary to amputate the same; that appellees, the parents of said William Dabney, took charge of and provided for him for the space of 365 days and furnished him with necessary medicine and medical aid; that their reasonable compensation for so doing, amounted to the sum of $2,270; and that they were also entitled to the further sum of two dollars for each day said William Dabney was so kept by them, amounting to the sum of $730, making a total of $3,000.

Appellant filed a plea of the general issue and a special plea of the two years ’ statute of limitations. A demurrer was sustained by the court to the plea of the statute of limitations and appellant abided by his plea, going to trial upon the general issue. The trial resulted in a verdict and judgment in favor of appellees for $201.

The facts, so far as necessary to be stated, are as follows: On June 8, 1906, William Dabney, a young man, lived with appellees, his parents, at Iuka, nine miles east of Salem, on the Baltimore and Ohio Southwestern Railroad. On the morning of that day at about 6 o’clock, he went to Salem. During the forenoon and a greater portion of the afternoon, he was in and out of appellant’s saloon, where he drank intoxicating liquors a number of times and also bought a half pint of whiskey. He also drank intoxicating liquor in two other saloons in the same place. Late in the afternoon he went to Centraba, where he remained about two hours and drank one glass of beer. He then returned to Salem, went to appellant’s saloon, where he got his coat which had been left there and a pint of whiskey he had previously purchased, and went back to the railroad station, where.he was seen drinking whiskey from his bottle. "When the train arrived he was so much under the influence of liquor that he staggered and when he got into the coach, he went to sleep and was carried past his station to G-reendale, four miles beyond, where he got off and started back home ' along the track. He was found next morning lying in a ditch beside the track, with his left' foot cut off and his leg so mangled that it was necessary to amputate the same above the knee. He was taken to the home of his parents where he was confined to his bed six weeks, and to the house for many weeks longer, during which time his limb had to be dressed. All this time, appellees nursed and eared for him and furnished him necessary physicians, medicine and food.

Appellant states in his brief that he relies upon two-propositions for a reversal of this case, both of which are properly raised by the errors assigned. They are first, that the statute of limitations is a bar to the action and the court erred in not so holding; second, that there can be no recovery under section 8 of the Dram-Shop Act, where it appears from the evidence that others besides the defendant contributed to the intoxi- . cation which resulted in the injury complained of.

The declaration showed that the injury complained, of occurred on June 8,1906, while the suit was not commenced until September 16,1908, more than two years later. The plea of the statute of limitations, filed by appellant states that “said several supposed causes of action, in the said' declaration mentioned, did not nor do any or either of them, accrue to the plaintiffs at any time within two years next before the commencement of this suit.”

Appellees insist that this action is not one to recover a penalty, but merely to recover compensation for services performed and rendered necessary by the act of appellant, which produced the intoxication of the person cared for, and cite in support of their theory and rely upon McVey v. Williams, 91 Ill. App. 144, where it is said in speaking of the same section of the statute, which is under consideration here, “We think the present action is not to recover a penalty, but merely for compensation for services performed, rendered necessary by the act of appellant, producing the intoxication of the person cared for.”

The theory of appellant is that this is a suit to recover a statutory penalty and is therefore governed by section 14 of the Limitations Act, which provides that an action for a statutory penalty shall be commenced within two years next after the cause of action accrued. He contends for the broad principle that a statute which subjects one person to pay to another whom he has not actually injured, a .sum of money, is a penal statute and that the test whether a statute is penal when an action is brought thereunder is to inquire “did the defendant injure or damage the plaintiff,” citing Mansfield v. Ward, 16 Me. 433. 6 Words and Phrases 5270. He also relies upon the definition of a penal statute in Potter’s Dwarris page 74, where it is said “a penal statute is one which imposes a forfeiture or penalty for transgressing its provisions, or for doing a thing prohibited.” There are however cases in our own courts which apply directly to the statute in question.

The case of Confrey v. Stark, 73 Ill. 187, was one where a wife brought suit to recover damages sus- . tained by her by reason of the sale of intoxicating liquors to her husband by appellant. One of appellee’s instructions told the jury, that if she was obliged to care for her husband while he was helpless by reason of having been intoxicated upon liquor sold him by appellant, she was entitled to recover therefor $2 a day for each day she so cared for him, in addition to her other damages. The court held that the instruction was erroneous for the reason that the suit was an action on the case, while the section of the statute which governs the right to recover the $2 per day for caring for an intoxicated person, provides only for a recovery by an action of debt and further stated, it is a uniform rule, well recognized by all courts, where a statute gives a penalty and prescribes the form of action in which the remedy may be had, that courts are powerless to permit a recovery to be had in another form of action; and that therefore the $2 a day could only be recovered in an action of debt.

The case of Brannan v. Adams, 76 Ill. 331, was a suit similar to the one before us, where the appellee sought to recover compensation for taking care of a person, who, it was alleged, had been made intoxicated by liquors sold him by the appellants, and also the sum of $2 per day for each day he kept said injured person; and it was there said “this is a penal action and to recover the plaintiff must clearly bring himself within the terms of the statute.”

In Carroll v. The People, 13 Ill. App. 206, the provision for the payment of $2 a day, named by the statute for keeping the injured person while disabled on account of his intoxication, is spoken of as a penalty.

In Schulte v. Menke, 111 Ill. App. 212, it is said: “The dram-shop Act is a statute penal in character and provides a right unknown to the common law and according to well understood canons, should receive a strict construction, ’ ’ and in speaking of the liability of the dram-shop keeper under section 8 of said act, which is the one we have under consideration, it is further stated: “He is liable in the first place to pay a reasonable sum for taking care of the person while he is intoxicated and unable to care for himself, and then if his drunkenness caused him to become sick or if while drunk and in consequence of the intoxication, he injures himself so as to require others to take care of him, on account of his inability to care for himself, then the saloon keeper is liable to pay a penalty of $2 a day to the person who takes care of him.”

When the case of McVey v. Williams, supra, which is the only case which appears to hold a contrary doctrine, is carefully considered, it will be found to be not wholly in conflict with the doctrine laid down in the above cases. In that case the declaration, which is given in full in the report, shows that the demand of the plaintiff was only for taking charge of and providing for the injured person and did not include any claim for the $2 a day, also provided for by the statute, and which is held, by the cases referred to, to be a penalty. In this case the declaration claims for compensation for taking charge of and providing for the intoxicated person and also for the $2 a day in addition thereto, provided for by the statute.

We are therefore of opinion that in this case a penal statute was involved and that the two years statute of limitations applied. But notwithstanding that fact, the court erred in sustaining the demurrer, for the reason that the statute did not commence to run at the time of the injury, but at the time the services, which are alleged by the declaration to have extended for a year after the date of the injury, were rendered. It was a question of fact to be submitted to the jury, whether any services were rendered, and whether the injured person was kept for any length of time by appellees within the two year limit.

We do not concur in the second proposition relied on by appellant, that there can be no recovery under the section of the Dram-Shop Act, in question, where it appears from the evidence that others aside from the defendant, contributed to the intoxication which resulted in the injury complained of, if by it appellant intends to assert there can be no recovery against him, provided it should appear that any other person than he sold intoxicating liquors to William Dabney, during the day in question, regardless of the amount sold, or the proximity of the sale to the time of the injury.

For the reasons above given relating to the error of the court below in sustaining the demurrer to the plea of "the statute of limitations, the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Shirley

text:
    William J. Reichert et al., Appellees, v. Missouri and Illinois Coal Company et al., Appellants.
    1. Pleading—effect of failure to dispose of demurrer. If a demurrer is interposed to pleas and not disposed of, the pleas stand as defenses to the declaration.
    2. Appellate Courts—presumptions which aid orders of. All presumptions will be indulged in support of the action of the Appellate Court in modifying the form of the judgment rendered; notice not shown will be presumed.
    3. Bonds—what will not defeat recovery upon appeal hand. _ Any error in the name or names of the parties plaintiff made in the entry of a judgment upon an appeal from which the bond is given, will not defeat a recovery upon such bond in the event of the affirmance of the actual judgment appealed from.
    4. Trial—power of court to re-open case. It is within the discretion of the trial court at the same term to re-open a case and receive additional testimony.
    Action of debt. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1909. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 13, 1909.
    Rehearing denied March 22, 1910.

      L. P. Crigler, J. E. McMurdo and N. C. Lyrla, for appellants.
    L. D. Turner and James Dill, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment recovered in an action upon an appeal bond executed by appellants. A jury being waived, the cause was tried by the court and the damages assessed at the sum. of $1,471.34. The bond was as follows:

“Know all men by these presents:
“That we, Missouri and Illinois Coal Company and the Title Guaranty and Surety Company of the County of St. Clair and State of Illinois, are held and firmly bound unto William J. Eeichert and Charles Becker in the penal sum of Two Thousand Dollars for the payment of which well and truly to be made, we and each of us bind ourselves, our heirs, executors and administrators jointly and severally firmly by these presents.
“Sealed with our seals and dated this 20th day of February in the year of our Lord, One Thousand Nine Hundred and Six.
“The condition of the above obligation is such that whereas the said William J. Eeichert and Charles Becker did on the 13th day of February, One Thousand Nine Hundred and Six, at a term of the Circuit Court then being holden within and for the Third Judicial Circuit in the County of St. Clair, and State of Illinois, obtain a judgment against the above bounden Missouri and Illinois Coal Company for the sum of fifteen hundred dollars and- cents, and costs of suit, from which judgment the said Missouri and Illinois Coal Company has prayed for and obtained an appeal to the Appellate Court in and for the Fourth District of said State.
“Now if the said Missouri and Hlinois Coal Company shall duly prosecute said appeal and shall moreover pay the amount of said judgment and costs, interest and damages, rendered and to be rendered ' against it the said Missouri and Illinois Coal Company in case the said judgment shall be affirmed in the said Appellate Court, then the above obligation to be null and void, otherwise to remain in full force and virtue.
“Missouri and Illinois Coal Co.
“By W. S.i-Scott, Vice President (Seal) “The Title Guaranty & Surety Company “By Edwin Cott, Third Vice-President (Seal)
“Approved by me this 5th day of March, 1906.
“C. E. Chamberlain, Circuit Clerk.”

The declaration was in debt in the name of Wm. J. Eeichert and Charles Becker as plaintiffs, and after reciting the conditions of the bond alleged as a breach thereof, that said judgment was afterwards by said Appellate Court affirmed and had not been paid by the said Coal Company.

The defendants interposed the plea of nil debet and special pleas in which it was averred there was no record remaining in said court of the supposed recovery mentioned in the declaration and the defendant Title Guaranty & Surety Co. pleaded also that the bond was made to secure the payment of a judgment in favor of Wm. J. Eeichert alone against the Coal Company and not to secure the payment of the judgment in favor of Wm. J. Eeichert and Charles Becker against the Coal Company, and at the time the bond was executed, there was no judgment in said court in favor of both Eeichert and Becker; that after the bond was executed and without the consent or knowledge of said defendant and without notice to it, a judgment was rendered in the Appellate Court in favor of plaintiffs, Wm. J. Eeichert and Charles Becker, against the Coal Company, and that the original judgment from which the appeal was taken and for which the bond was given, was vacated, set aside, altered, modified and held for naught.

A demurrer was filed to said special pleas which by consent was to be settled with a hearing on the merits by the court, a jury being waived. The record shows no final disposition of this demurrer and this is assigned for error by appellants.

The demurrer to the pleas not being disposed of, left the pleas interposed as defenses to the declaration and no complaint is made by appellants that any proper evidence was offered in support of the pleas and not admitted. Nor did appellants ask the court to dispose of the demurrer on the hearing. Appellants cannot complain of the state of the record in this regard.

The main contention is, there was no such judgment in the St. Clair Circuit Court as is alleged in the declaration and recited in the bond; that a judgment in favor of Wm. J. Reichert and Charles Becker is so averred and recited when the judgment there was in favor of Wm. J. Reichert alone and that after the bond was given, without the consent of the surety, the judgment was changed and modified in this court to fit the conditions of the bond which amounted to a reversal of the judgment.

The testimony shows that in the original suit in which this appeal bond was given, Wm. J. Reichert and Charles Becker were plaintiffs and The Missouri and Illinois Coal Company were defendants. If further shows it is recited in the appeal bond sued on in this cause, that said Reichert and Becker were plaintiffs and they recovered the judgment against the said Coal Company from which said appeal was prosecuted in this court. And it is further shown that in this court by its final order, the judgment was affirmed in favor of plaintiffs, Wm. J. Reichert and Charles Becker. The evidence identifies such final judgment in this court as being the same cause in which the appeal bond was executed.

We think it appears from the testimony that the clerk of the Circuit Court in entering the record of the judgment from which the appeal was taken, entered it in favor of Wm. J. Reichert as plaintiff only, but upon its affirmance by the Appellate Court, it was there modified so that it was entered in favor of Wm. J. Reichert and Charles Becker. Upon what grounds the modification was made or upon what notice does not appear but all presumptions will be indulged in support of the action of the Appellate Court in so entering the judgment.

Moreover, the cause being the same in which the appeal bond was given, and it being recited in the appeal bond that both Reichert and Becker were plaintiffs in favor of whom judgment appealed from was rendered, the appellants should not be permitted now under the circumstances disclosed to say there was no such judgment.

The cause was heard by the trial court on September 25, 1908. Afterwards, on October 29, 1908, leave was given appellees to introduce additional evidence to show the non-payment of the judgment, which was done. This action of the court is assigned for error. The additional testimony was heard at the same term and it was proper for the court in its discretion to hear it. Appellants had the right to introduce additional evidence and also to file additional briefs if they •desired. And not having availed of this right, they cannot complain.

We are of opinion the evidence sustains a judgment for the sum of $1,441.34 shown to be due on November 23, 1908, by the testimony of Reichert and the judgment rendered was for the sum' of $1,471.34. The judgment will be reduced to the sum of $1,441.34 and affirmed for that amount.

Affirmed.