author: Me. Justice Beown

text:
    Frederick H. Wachsmuth et al., Executors, Petitioners, Appellants, v. Penn Mutual Life Insurance Company et al., Respondents, Appellees.
    Gen. No. 14,326.
    1. Trust deeds—rights of priority. A trust deed given by a decedent in. his lifetime is given precedence with respect to the original holders thereof and those entitled to subrogation thereto, over the claims of creditors of such deceased seeking to sell such real estate to pay his debts.
    2. Subrogation—who not entitled to. One who advances money to pay the debt of another, in the absence of an express or implied agreement for subrogation, will not be entitled to succeed to the rights and remedies of the creditor so paid unless there is some obligation, interest or right, legal or equitable, on .the part of such person in respect of the matter concerning which the advance is made, as otherwise he is a stranger, a volunteer, an intermeddler to whom the equitable right of subrogation is not accorded.
    3. Res judicata—what essential to defense of. To be res judicata a controversy must be one which could in the prior proceeding have been litigated.
    4. Res judicata—when Probate Court not bound by. Even though the Superior Court of Cook county or the Circuit Court may in a collateral suit have gone into the matters respecting the administration of a deceased’s estate, yet a judgment or decree rendered therein will not be held to have barred or disposed of the matters pending in the Probate Court.
    5. Res judicata—what does not bar right in creditors to have real estate of a deceased’s estate sold to pay debts. A decree rendered in a foreclosure proceeding brought upon a deed of trust executed by the executors of a deceased’s estate to which the executors have been made parties and in which they have not represented or answered on behalf of the creditors of such estate, will not operate as res judicata against such creditors in a proceeding caused to be instituted by them in the Probate Court for the purpose of subjecting to sale the real estate so foreclosed for the purpose of paying their debts.
    6. Laches-—when does not constitute defense to action of executor to sell deceased’s estate to pay debts. A proceeding instituted in the Probate Court to subject a deceased’s real estate to the payment of the debts of creditors brought within nine months from the time of the expiration of the time for the filing of claims, is diligently brought and the defense of laches will not lie.
    7. Gifts'—what not valid. Statements made by a father to his son as follows: “I have canceled this debt,” and “You are having trouble and I will help you out; I will give you that” (referring to a debt) held, ineffective either as an executory contract or as a gift inter vivos.

    8. Executors and administrators—when chargeable with debt as cash assets. If an executor is "at the time of the issuance of letters indebted to the estate of his testator and is at such time solvent, such debt is to be treated as cash assets in his hands belonging to the estate; if, however, such executor is at such time insolvent, the debt is not to be so treated. Insolvency being shown at the time of the issuance of the letters testamentary, it will be presumed to exist until the contrary condition is established by evidence.
    9. Executors and administrators—when executor not insolvent. For the purpose of determining whether an executor at the time of the issuance of letters testamentary is solvent so that he may be charged with a debt due to his testator as cash assets, a device to him of an equity in real estate which is stipulated to have been of a certain value, will be considered by the court as of that value in determining whether or not he was at that time solvent, although it was afterwards lost by the foreclosure of the encumbrance. Brown, J., dissenting.
    Petition for sale of real estate. Appeal from the Probate Court of Cook County; the Hon. Charles S. Cutting, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 22, 1909.
    Statement by the Court. This is an appeal from an order of the Probate Court of Cook county, entered June 22, 1907, dismissing a petition filed in said court on the seventh day of April, A. D. 1906, by the executors of the will of Henry P. Wachsmuth (and- afterwards amended), for an order of sale authorizing and directing them to sell three pieces of land described in the said petition, or such part thereof as might be necessary to pay debts due from the estate of said Henry F. Wachsmuth. The petition (as originally filed) set up the issuance of letters testamentary to the petitioners on December 12, 1900, and the filing and approving of an inventory and appraisement in said estate, and of a just and true account of the personal estate and debts of the deceased; this just and true account being filed and approved on December 12, 1905.

      This account showed the total amount of the indebtedness of the estate to be $12,850.33, and the total personal property to be $5,595.08, making a deficiency of $7,254.25. The petition proceeded to show that the executors had paid on account of the expenses of the settlement of the estate and the indebtedness, $3,957.69, and had on hand $1,637.46. It described the three pieces of real estate of which Henry F. Waehsmuth died seized.
    Piece No. 1 was the west 112 1/2 feet of lot 4 in the County Clerk’s Subdivision of lots 11-12-13-14 in block 3, in Ellis West Addition to Chicago, subject to a trust deed to Nathaniel A. Mayer, dated October 16, 1896, and recorded October 17, 1896, given to secure the note of Henry F. Wachsmuth for $10,000, maturing October 16, 1901; said trust deed having been foreclosed and Nathaniel A. Mayer being the holder of the certificate of sale.
    Piece No. 2 was lots 22' and 23 in block 2 in the Circuit Court partition of the southeast quarter of section 3, township 38 north, range 14, etc., in Chicago, known as 461 and 463 East Forty-seventh street. At the time of the death of said Henry F. Wachsmuth said property was subject to a trust deed made by said Henry F. Wachsmuth to Edgar M. Snow, dated April 15, 1896, and recorded April 17, 1896, given to secure the note of Henry F. Wachsmuth for $11,000, but since the death of the said Henry F. Wachsmuth said trust deed had been released and said note can-celled and the Penn Mutual Life Insurance Company, Bernard Baumgarden and Henry F. West, trustee, claim to have some interest and title to said premises.
    Piece No. 3 was lot 18 in the North Tier of Oakenwald, being a subdivision of the northeast fractional quarter of section 34, township 39 north, range 14 E. of the 3rd P. M., in Chicago, known as No. 7 G-rove-land Park, subject to a mortgage made to the Mutual Benefit Life Insurance Company of Newark, New Jersey, dated December 1, 1898, and recorded December 9,1898 (which said mortgage was assigned by the said Insurance Company to James B. Chapman, by assignment dated March 5, 1904), for $4,500; and also subject to a trust deed made by said Henry F. Wachsmuth to the American Trust & Savings Bank, dated March 14, 1899, and recorded March 15, 1899, for $10,000.
    Each of these three pieces was alleged by the petition to be improved; pieces 1 and 2 with brick buildings, and piece 3 with a frame residence.
    The petition further alleged that Henry F. Wachsmuth left him surviving no widow, but left Frederick H. Waehsmuth and Louis C. Waehsmuth, his sons, his only children and heirs at law, and that they, together with one Helen G. Waehsmuth, a minor, and Helen A. Green, were the only devisees or legatees.
    These persons and the Penn Mutual Life Insurance Company, Bernard Baumgarden, Henry F. West, James B. Chapman, the American Trust & Savings Bank, Nathaniel A. Mayer and also various other named parties, were declared by the petition to have or claim some interest in the premises, and were made parties defendant thereto.
    June 14, 1906, the Penn Mutual Life Insurance Company filed individually and separately both an answer and a plea to the petition. The answer admits that Henry F. Waehsmuth died, leaving a will which has been probated, and that petitioners are executors, but admits nothing else, and denies that there are any legal or valid claims against said estate in excess of the personal property left by deceased, subject to the payment of his debts. It then alleges that on September 20, 1905, one Michael H. Hoey was the owner and in possession of lots 22 and 23 in block 2, in the Circuit Court Partition, etc. (461 and 463 East Forty-seventh street), and then made to the Penn Mutual Life Insurance Company his promissory notes aggregating $15,000, and executed to Harry F. West as trustee his trust deed on those premises to secure said notes, and that said notes are owned by the Penn Mutual Co. and are unpaid and a first lien on said premises prior to any supposed right of the petitioners to sell the same to pay the debts of Henry F. Wachsmuth.
    The plea “defends the petition” to sell land “so far as said petition is made to apply” to said Forty-seventh street property, and alleges that Henry F. Wachsmuth by his will devised to Louis C. Wachsmuth that property, and that on February 25, 1901, when fully seized of it, Louis C. Wachsmuth made a note for $15,000 to his own order and by him indorsed, payable five years from date, of which note the defendant the Penn Mutual Life Insurance Company became the owner, and also, with his wife, made a trust deed of the said premises to Francis B. Peabody as trustee, to secure the said note; that on January 31, 1903, more than two years after letters of executorship issued to the petitioners and after the filing and allowance of all claims in the Probate Court for which the alleged deficiency of personal property to pay debts arises, the Penn Mutual Life Insurance Company filed its bill of foreclosure in the Superior Court of Cook county against Louis C. Wachsmuth and wife and against L. C. Wachsmuth and Frederick H. Wachsmuth as executors, to foreclose this trust deed, alleging default in the conditions of the same; that Louis H. Wachsmuth and Frederick H. Wachsmuth, executors of Henry F. Wachsmuth, were made parties defendant to said bill under an allegation that they had or claimed to have some interest in said premises or some part thereof, as purchasers or otherwise, but that said interest, if any, was subject to the lien of said trust deed and inferior thereto; that the executors aforesaid were duly served with summons on said bill; that Frederick H. Wachsmuth, executor, was defaulted and the hill taken as confessed against him, and against some other defendants, and that the bill came on to be heard on such default and confession and on the answer of Louis C. Wachsmuth, both individually and as executor, and upon the report of the master; that a decree was entered by the Superior Court that the Penn Mutual Life Insurance Company had a first lien on the premises mentioned in said trust deed for the amount of said note and other indebtedness, and that unless the amount of $16,125.89 should be paid within a day fixed by the court, the premises should be sold, and that unless redemption was made within the time fixed by law, ■the defendants to the bill of complaint, including the executors, should be forever barred from all right of redemption from said sale; that payment was not made within the time allowed, and that after advertisement a master in chancery, on July 17, 1903, sold the said property to the defendant, the Penn Mutual Life Insurance Company, for the sum of $17,004.75, and on the same day delivered to said company a certificate of sale; that the sale was approved by the court; that no redemption was made from said sale, and on October 20, 1904, the master made a deed of said premises to the Penn Mutual Life Insurance Company, by which deed the said company became possessed of the title to the premises in said trust deed in fee simple, free and clear of the right of the executors to sell the same or any part thereof to pay the debts of said Henry F. Wachsmuth, deceased; that at the time of the entry of the decree the Superior Court had jurisdiction of the subject-matter and the parties, including said executors, and that by virtue of said sale and master’s deed said executors and their successors were and are forever foreclosed and es-topped from asserting any title or lien on the premises sold, and from asserting any right to a decree of sale for the payment of debts exhibited in the Probate Court prior to the filing of the bill of foreclosure.
    (An “amendment” to this plea was filed December 15, 1906, which consisted merely of a copy of the decree in foreclosure to be appended thereto.)
    On June 14, 1906, Bernard Baumgarden, who was made a defendant to the petition to sell, also filed an answer. In it he denies that the petitioners have fully accounted for the estate, or that there are valid claims against said estate in excess of the personal property left hy the deceased subject to the payment of debts; denies that a valid foreclosure has been made of the Ellis West Addition property (piece No. 1), and denies that the Groveland avenue property (piece No. 3) is incumbered as alleged, and alleges that Henry F. Wachsmuth devised to Louis C. Wachsmuth the Forty-seventh street property (piece No. 2) subject to such encumbrance as might be thereon at his death, and gave to Frederick H. Wachsmuth the Ellis West Addition property (piece No. 1), and gave the rest and residue of the real estate and personal property to Louis C. Wachsmuth and Frederick H. Wachsmuth, share and share alike; that said will gave the petitioners as executors full power to sell or encumber any of said real estate; that Henry F. Wachsmuth was in his lifetime and on April 15, 1906, indebted on his promissory note for $11,000, and to secure the same made his trust deed, conveying the Forty-seventh street property (piece No. 2) to Edgar M. Snow as trustee; that said trust deed and note were in full force when Henry F. Wachsmuth died; that on February 25, 1901, there was due upon said trust deed and note the sum of $15,000, and said Frederick H. Wachsmuth and Louis C. Wachsmuth, or one of them, applied to Peabody, Houghteling & Co., a firm engaged in money-lending, for a loan on the premises, to take up the amount due on the Edgar M. Snow trust deed, and then represented to Peabody, Houghteling & Company that there was no indebtedness against the estate of Henry F. Wachsmuth, deceased, which could be filed or allowed, which would subject the real estate to sale for payment of debts, and that they desired to make a loan of $15,000 with which to pay and discharge the $11,000 encumbrance aforesaid, with taxes, interest and special assessments, which were a valid lien upon said premises; that relying on these representations and to enable the petitioners to pay said $11,000 encumbrance on the Snow trust deed and taxes on the same, and to have said Snow trust deed released and discharged, Peabody, Houghteling & Company on March 1, 1901, advanced the sum of $15,000, and paid and took up said $11,000 encumbrance, and procured the release and discharge of the same; that Louis C. Wachsmuth, devisee under the will of Henry C. Wachsmuth, executed a note for $15,000 and gave it to Peabody, Houghteling & Co. and with his wife executed and delivered a trust deed to F. B. Peabody, trustee, to secure the said note, which trust deed was recorded February 25,° 1901; that after the full payment and disbursement of the said $15,000 loan, and on March 1, 1901, the Penn Mutual Life Insurance Company purchased from Peabody, Houghteling & Company said $15,000 note and trust deed, and became entitled in equity to be subrogated to all rights and equities of Peabody, Houghteling & Company by reason of advancing the moneys to pay and discharge the Snow trust deed. The answer then sets up the foreclosure of the Peabody trust deed as it is set up in the plea of the Penn Mutual Life Insurance Company above quoted. The answer, however, further alleges that on September 20, 1905, the Penn Mutual Life Insurance Company, to whom the master in chancery had conveyed the premises (as in the said plea recited), conveyed the premises by warranty deed to Michael H. Hoey, which deed was recorded in the recorder’s office, and that to secure the deferred payments of part of the purchase money, Hoey made a trust deed to Harry F. West to secure three notes of $1,000 each and one for $12,000, which notes and trust deed are now owned by the Penn Mutual Life Insurance Company; that on December 1, 1905, Hoey and wife made a warranty deed to the respondent subject only to the trust deed last aforesaid; that the respondent Baumgarden on the same day took possession of the premises and is now in possession and control thereof as owner and claims to be such owner free of any supposed rights of the petitioners to sell the same to pay the debts of Wachsmuth, deceased; that said petitioners, by the decree of sale and conveyance thereunder, are estopped as executors, from ever attempting to sell the premises, or any part thereof, to pay the supposed indebtedness of Wachsmuth, deceased, and have been guilty of such laches as will prevent them at this time from obtaining an order of sale for the payment of said debts.
    Harry F. West, trustee, Mrs. Bernard Baumgarden, and the Chicago Title & Trust Company, receiver, etc., also filed an answer to the petition on June 14, 1906. It adds nothing to the defenses set up in the answers and plea heretofore quoted, but alleges that Mrs. Baumgarden’s interest is as wife of Bernard Baum-garden, and the Chicago Title & Trust Company’s is as receiver of a judgment creditor of Frederick H. Wachsmuth and Louis C. Wachsmuth. The usual formal answer of a minor by a guardian ad litem was afterwards filed for Helen J. Wachsmuth. On June 14, 1906, Bernard Baumgarden also filed a cross-petition, making all the parties to the original petition of the executors defendants thereto, and setting up in said cross-petition all the matters contained in his answer. The cross-petition concludes with the allegations of law that under the facts recited, the executors of Henry F. Wachsmuth, by the foreclosure decree sale and conveyance thereunder, on the bill of the Penn Mutual Life Insurance Company, are es-topped as such executors from ever attempting to sell said premises or,any part thereof to pay the supposed indebtedness of Henry F. Wachsmuth, deceased, and have been guilty of laches; that the Superior Court had jurisdiction of the subject-matter and of the parties, including Frederick H. Wachsmuth and Louis C. Wachsmuth, executors, and that such executors were the legal representatives of all persons or claimants having filed or exhibited their claims for allowance against Wachsmuth, deceased; that the cross-petitioner is vested with all the equities and is subrogated to all the rights of Peabody, Houghteling & Company and said Penn Mutual Life Insurance Company; that it would be inequitable and unjust to attempt to sell the premises upon which Peabody, Houghteling & Company made the loans as aforesaid, and so foreclosed, until all other real estate of the said Henry F. Wachsmuth should be sold and disposed of. It then prays for an accounting of the personal estate of Henry F. Wachsmuth, also for the sale of all the remaining other parts of the real estate, before selling the real estate of cross-petitioner, and that the cross-petitioner be decreed to be entitled in equity to be subrogated to the lien of the Edgar M. Snow trust deed for $11,000.
    On February 20, 1907, after argument, an order was entered by the Probate Court, overruling the plea filed by the Penn Mutual Life Insurance Company, to which order the company excepted and, as the record recites, “elected to stand by its plea”. The judge of the Probate Court rendered a written opinion in overruling the plea. He held that the answer of the Penn Mutual Life Insurance Company did not, as was claimed by the petitioners, supersede or overrule the plea, which he disposed of on its merits. He held the plea to be purely one of res adjudicata. He found that the executors were not necessary parties to the foreclosure decree recited in the plea, and doubted even if they were proper ones. He further found that in any event under the pleadings in the foreclosure suit they were not bound by the finding of the decree that the holder of the Peabody trust deed, the Penn Mutual Life Insurance Company, had a first lien on the premises involved, or otherwise. So holding, he declared it to be “quite unnecessary to determine whether the executors so represented creditors of the estate that such creditors are prevented from asserting their rights by reason of the failure of the executors to present their claims in the foregoing suit. ’ ’
    After the plea of the Penn Mutual Life Insurance Company was thus overruled, general replications were filed by the petitioners to the various answers of the defendants. Subsequently, an answer of the executors was filed to the cross-petition heretofore described of Baumgarden, and answers of the American Trust & Savings Bank and James B. Chapman, both to the original petition of the executors and to the cross-petition of Baumgarden. In their answer to the cross-petition the executors allege that they are not guilty of laches and that they have used every reasonable effort to procure an order for the sale of said real estate, and deny the right of Peabody, Houghteling & Company, the Penn Mutual Life Insurance Company, or those claiming under them, to subrogation. They deny that the foreclosure proceeding of the Penn Mutual Life Insurance Company in any way barred or foreclosed their right to sell said premises to pay the debts of Wachsmuth, deceased, and allege that they, as executors, have a prior and superior lien on said premises for the purpose of paying said debts. They deny that the Superior Court had jurisdiction of the executors for the purpose of foreclosing and cutting off their rights to sell said premises to pay the debts of said Henry F. Wachsmuth, and deny that the decree and making of said executors parties to said foreclosure suit estopped said executors from selling said premises to pay said debts. They allege that whatever right or title the cross-petitioner has in the property named in the cross-petition is subject and subordinate to the right of the executors so to sell said property. The answers of the American Trust & Savings Bank and Chapman to the petition and cross-petition contain allegations that they are creditors of the deceased, Henry F. Wachsmuth, in the sum of $10,258.33, with interest, less the sum of $3,000, which has been paid on account of the claim, and deny that any of the defendants have any rights except such as may be subordinate to the rights of the executors to sell the real estate of the deceased for the purpose of supplying the deficiency of the personal property to pay said debts.
    General replications were filed to these answers, and the cause was set for hearing. The result of the hearing was an order of the Probate Court, dismissing both the original petition of the executors and the cross-petition of Baumgarden. Prom so much of the order as dismissed their petition the executors appealed to the Supreme Court, and in that court assigned as error that the decree was contrary to the law and the evidence, that the court erred in admitting improper evidence in behalf of the defendants to the original petition and excluding proper evidence offered in behalf of the petitioners, and erred in dismissing the petition and in not entering a decree in accordance with the petition.
    The American Trust & Savings Bank assigned “cross-errors”, repeating, however, exactly the allegations of the petitioner’s assignment of errors. The Penn Mutual Life Insurance. Company also assigned cross-errors. It alleged that the court erred in sustaining the demurrer to its plea as amended.
    Bernard Baumgarden filed cross-errors, alleging that the Probate Court erred in dismissing his cross-petition, instead of granting to him the relief in said cross-petition prayed. The Supreme Court held that the appeal should have been taken to this court, and transferred it here under the statute.
    William Garrett, for appellants; Morar, Mayer & Meyer, of counsel.
    Charles L. Bartlett and Ashceaet & Ashcraft, for appellee; Harrisoh B. Riley, of counsel.
   Me. Justice Beown

delivered the opinion of the court.

The questions involved in this appeal seem to he:

First. Were Peabody, Houghteling & Company and their successors in the beneficial ownership of the rights, title and interests which passed under the trust deed of Louis C. Wachsmuth to Francis B. Peabody, dated February 25, 1901, conveying lots 22 and 23 in block 2 in the Circuit Court partition, subrogated to the rights before held by the beneficial owners of the interest in said property which passed by the trust deed from Henry F. Wachsmuth to Edgar M. Snow, dated April 15, 1896? If they were, the petition, of course, could not be sustained against their rights, as it is conceded that an encumbrance or lien placed on property by the decedent would take precedence of any right of the petitioners. So far, at least, as this property was concerned, the. petition would have been in that case properly dismissed.

Second. If this theory of subrogation is not correct, did, nevertheless, the foreclosure proceedings begun in the Superior Court by the Penn Mutual Life Insurance Company on January 31, 1903, on said lots, and carried to a decree of the said court June 22,1903, and a sale and master’s certificate and deed thereafter, cut off and foreclose any right that may have theretofore existed in said petitioning executors to sell, or in the creditors of Henry F. Wachsmuth to cause to be sold, the said property to pay Henry F. Waschmuth’s debts ?

The ground of this claim on the part of appellees is that the executors made defendants in said foreclosure suit (under the allegation that they “had or claimed to have some interest in said premises as purchasers, mortgagees, judgment creditors or otherwise, which interest, if any, had accrued subsequent to the lien of the complainants and was subsequent and inferior thereto”), represented those rights of creditors which had to be worked out through their intervening action, and that as snch representatives and in every other capacity, they were "bound by the decree which, taking the bill as confessed by them, found all its material allegations true, and that the Penn Mutual Life Insurance Company had a first and prior lien on said premises; and among other things, adjudged and decreed that if the said premises should not be legally redeemed after the ordered sale, “the defendants in the cause and all persons claiming under them, or either of them, should be forever barred and foreclosed of and from all equity of redemption and claim of, in, and to said premises”. If this claim of the appellees is correct, it is also an end of this proceeding so far as they and the property in the Circuit Court partition is concerned.

A third question raised by the pleadings is whether the petitioners have been guilty of laches, forfeiting the right which they claim in their petition..

The fourth question is: Assuming that the petitioners still have, as to all the real estate left by Henry F. Wachsmuth, the right, in a proper case and under a proper showing, to sell to pay the debts of the deceased, is this a proper case and has a proper showing been made?

No question is made as to the procedure proper, but it is claimed by appellees that no showing has been made that there is any deficiency of personal property in the estate of Henry F. Wachsmuth to pay said indebtedness, and that any apparent showing to that effect by the alleged just and true account of the personal property and debts of said deceased filed in the Probate Court is due to the failure of the said executors to show therein certain credit assets of the estate. . The assets thus wanting are said to be a certain debt due from themselves to said estate, which, added to the other assets, would increase their aggregate above the amount of the estate’s indebtedness. This debt was of $10,000 and accrued interest, and was for money advanced by the deceased, Henry F. Wachsmuth, to Ms sons (the executors and petitioners) in March, 1899. The appellees claim that this sum should be held cash assets in the hands of the exécutors, thereby increasing the amount of assets shown by the “just and true account” from $5,595.08 to $15,595.08, and as much more as the interest amounts to. As the claims allowed oMy amount to $12,850.33, with this increase in the personal assets, the deficiency for which real estate could be sold, would disappear.

Therefore these two subsidiary questions arise under this fourth primary one:

A. Was the debt of $10,000 and over, from the executors to the estate, in existence at the time of the petition to sell?

B. If it were, was it properly to be held cash assets in the hands of the executors?

The answer to this last query depends on two questions—one of law and one of fact.

The question of law is: Was the debt properly to be so held, even if the executors were personally insolvent at or after the time of their appointment and qualification?

If the answer to this question of law is in the negative, this question of fact must be answered: Were the executors solvent at or after said time?

The Probate Court in its conclusions made the whole matter turn on the answer to this last subdivision of the inquiry. It held that the appellees, the Penn Mutual Life Insurance Company and Baum-garden, were not subrogated to the rights of the holders of the Snow trust deed. It also held that the foreclosure proceeding and decree in favor of the Insurance Company and the sale and deed thereunder did not cut off or foreclose any right which before existed in the executors to sell under their petition. It further held, as we understand the record and the admission of counsel, that the executors were guilty of no laches which so cut off, waived, or foreclosed their right.

It held, moreover, that the proper procedure had been followed if the proper showing had been made and that if the executors were solvent their debt to the estate should be considered as such assets of said estate in their hands, but that if they had been insolvent at, and for all the time after, their appointment and qualification, the debt due from them should not, as a matter of law, be accounted cash assets in their hands.

To this point, therefore, the Probate Court followed the petitioners and the creditors in their claim of a right in this proceeding to sell the land held by Baum-garden.

But it held on the evidence before it, as a matter of fact, that the executors were solvent at and after the time of their appointment and qualification, and that no deficiency existed. The necessary consequence of this holding was the dismissal of the petition, and this order was entered. Thus, as stated, the Probate Court’s decision was based on its answer to this last question of fact before set forth.

The cross-errors assigned, however, make it necessary for us to review as well the decisions of the lower court on the preceding questions of law, as on this final one of fact.

The court is undivided in the opinion that on each of the questions of law, the conclusion of the Probate Court was the correct one. Its reasons will be briefly set forth.

The first of these questions is whether the Penn Mutual Life Insurance Company and Baumgarden, through their holding' of the Peabody encumbrance, are subrogated to the rights of the holder of the Snow trust deed. As is pointed out by appellants, there was certainly no agreement to that effect when the “Peabody” loan and trust deed were made. The Peabody loan was made as the cross-petition of Baumgarden alleges, to secure money to discharge the Snow eneunibrance and, as the evidence of Mr. Houghteling shows, on the representation that there were no claims against the estate. If, therefore, the holder of the Peabody trust deed is entitled to be subrogated to the rights of the Snow trust deed, it must be by operation of law and merely because the money which Peabody, Houghteling & Co. advanced actually went to pay the Snow encumbrance.

But this in itself does not, according to any authorities of which we are aware, create the right of subrogation.

Thus Beach on Modern Equity Jurisprudence, sec. ■ 801, says: “But one who is only a volunteer cannot invoke the aid of subrogation, for such a person can establish no equity. He must have paid on request or as surety, or under some compulsion, made necessary by the adequate protection of his own right. * * * The loaning of money to discharge a lien does not subrogate the lender to the rights of the lien holder”.

The American & English Encyclopedia of Law, Yol. 24, p. 281, says: “One who advances money to pay the debt of another, in the absence' of agreement express or implied for subrogation, will not be entitled to succeed to the rights and remedies of the creditor so paid, unless there is some obligation, interest or right, legal or equitable, on the part of such person in respect of the matter concerning which the advance is made, as otherwise he is a stranger, a volunteer, an intermeddler, to whom the equitable right of subrogation is never accorded”.

Both of these text-bqok propositions are quoted as correctly stating the law by the Supreme Court of Illinois in Bouton v. Cameron, 205 Ill. 50. To the same effect are Fuller v. Davis’ Sons, 184 Ill. 505; Hough v. Aetna Life Ins. Co., 57 Ill. 318; Small v. Stagg, 95 Ill. 39; Pearce v. Bryant Coal Co., 121 Ill. 597; and White v. Cannon, 125 Ill. 416.

The second question relates to the effect of the foreclosure proceedings in the Superior Court in case No. 227982, Penn Mutual Life Insurance Company et al. v. Louis C. Wachsmuth et al., on the right of the executors of Henry F. Wachsmuth to sell the real estate therein involved for the benefit of the creditors of the estate. This was the question raised by the plea of the Penn Mutual Life Insurance Co. to the petition, which plea was overruled by the Probate Court. Because of the fact that the executors of the deceased, Henry F. Wachsmuth, were made parties to this proceeding to foreclose a trust-deed mortgage given by a devisee under the will of which they were executors, and were by the general language of the decree foreclosed from all claim of, in, and to said premises, on which the complainants were said to have a first lien, it is claimed by the plea of the Insurance Co. and by the cross-petition of Baumgarden, and is claimed in this appeal, that the executors lost by the principle of res adjudicata any right they might, before said decree, have had to sustain their petition. The reasoning of the judge of the Probate Court in disposing of the plea seems to us, however, entirely satisfactory.

In the first place, to be res adjudicata, a controversy must be one which could in the prior proceeding have been litigated; and it is difficult to understand how the executors of a will could litigate the priority of right between themselves, claiming under and representing the testator, and the assignees of a devisee from that testator. The priority is self-evident and axiomatic in such a case, not a matter for litigation.

But if it were, then the litigation of the priority involved here would necessarily draw with it into the cause, the entire administration of the estate.

This, the appellees say, the Superior Court has jurisdiction to undertake in the exercise of its chancery powers. This may be conceded, but it is nevertheless true that the Supreme Court has in like circumstances held that if the Superior Court or Circuit Court be a possible forum, it is not so the proper forum for such administration that its determination in a collateral suit will be held to have barred or disposed of the matters pending in the Probate Court which, under this theory of its jurisdiction, might have been, but were not, litigated.

We do not see but that the principle stated, if not involved, in Sutton v. Read, 176 Ill. 70, and Crane v. Stafford, 217 Ill. 21, is applicable to the case at bar.

But further than this we do not think the form of the findings and orders of the decree in the foreclosure case, properly construed, cut off the rights of the executors. The court found that the Peabody trust deed constituted a first and prior lien on the property involved. So it does, for the contingency that the property might have to be sold under a paramount claim did not constitute a lien in the proper sense of that word. Where that expression has been used by the Supreme Court to describe this contingent right of sale to pay a decedent’s debts, the question whether there was properly a “lien” existing was not involved, and it was apparently used loosely and without precision.

The enforcement of future and unassessed taxes might possibly take the land out from under this “first and prior” lien, and yet said taxes would not have been a lien at the time the finding was made.

We do not mean to imply that the nature of the right of the executors to sell is identical with that of the contingency of future unpaid assessments, but use the suggestion merely as matter of illustration.

The only other provision in the decree which 'could affect this right, is that which says that “the defendants in this cause, and all persons claiming under them or either of them shall be forever barred and foreclosed of and from all equity of redemption and claim of, in and to said premises and every part and parcel thereof which shall have been sold as aforesaid and which shall not have been redeemed according to law”. These italicized words by a forced construetion might be said in terms to exclude the executors’ right (if the executors represented in this litigation the creditors who alone are beneficially interested in that right) to sell to supply a deficiency in the personal assets of the estate; but such is not the natural meaning to be given to the phrase. It is that claim of the defendants “in and to the premises” which is the subject of the sale and of the redemption—in other words, that which was conveyed by the trust deed sought to be foreclosed—from which they are barred and foreclosed. This is the construction which a learned judge in the fourth district evidently placed on this language, holding that in the absence of a more specific allegation than the general one of a claim of interest made in this case, the rights of a prior encumbrancer made defendant was not by them affected when he had made no defense to the bill. Foval v. Benton, 48 Ill. App. 638. This court virtually approved this doctrine in Hibernian Banking Association v. Law, 88 Ill. App. 18. It is the doctrine held in many other jurisdictions, for example, in Vermont—Buzzel v. Still, 63 Vermont, 490; in California —McComb v. Spangler, 71 Cal. 418; in New York— Emigrant Savings Bank v. Goldman, 75 N. Y. 127; and in Wisconsin—Strobe v. Downer, 13 Wis. 11.

We are aware that language used by our Supreme Court in such cases as Kehm v. Mott, 187 Ill. 519, and Rohrhof v. Schmidt, 218 Ill. 585, seems inconsistent with this view; but we are forced to agree with the learned judge of the Probate Court that the language in those cases must be considered as obiter dictum save so far as it applies to the precise facts in "those cases. In neither of those named was the thing to be decided what was the effect of the general language of a decree on a point not litigated, but in the first it was whether on a point put in direct issue by the pleadings, and thus actually litigated, the allegations of the bill were sufficiently specific; and in the second, whether certain evidence was sufficient to make a prima facie case to establish the allegations of the bill.

To give the language used a wider effect as authority would be to make it contradict in principle the doctrine of Gage v. Perry, 93 Ill. 176.

But we may go further still, and state our opinion on a point left undetermined by the court below, which is in itself conclusive against the bar claimed to have been made by the foreclosure decree. It is this—that the action of executors in enforcing a sale of real estate to supply a deficiency in personal assets to pay debts is in the right of the creditors whose debts are to be paid, while in the character of defendants to the foreclosure bill in this case, the executors did not so represent the creditors of the estate as to have required them to present and have litigated the creditors’ claims.

We by no means intend to hold that making the personal representatives of a deceased person parties to a foreclosure suit to foreclose an encumbrance existing at the time of the death of the deceased, does not bar the right of all the creditors of the estate.' Undoubtedly it does. But this is a different case, and it seems to us inconsistent with the logic and right reason of the situation, to assume that without an actual day in court, before, it may be, their claims are allowed, creditors who would otherwise have in the probate procedure the right and the means to enforce payment in full against the estate, can be cut off from that right by the neglect of an executor to answer or deny the allegations of a bill brought by a stranger, to foreclose a trust deed subsequent in time to the death of the testator. We do not believe that it is the law that they can.

We see no ground for an affirmative answer to the third question—-Were the petitioners guilty of laches? The Probate Court therefore properly answered it in the negative. The time for filing claims against the estate, under the law as it then existed, expired on December 12, 1902, and as early as August 28, 1903, one of the creditors (in whose right this proceeding is brought and by whose diligence the question of laches should be tested) began its attempts to secure the enforcement of the remedy involved in this cause; and the Supreme Court has said that a much longer time is allowed to enforce this right. Myer et al. v. McDougal, 47 Ill. 278.

As to the first subdivision of the fourth primary question—Was the debt of $10,000 in existence at the time of the petition to sell1?—no contention is now made by the appellants. It is conceded that such debt did exist, although at one stage of the proceedings it was claiméd that it had been extinguished by the deceased in his lifetime. The executors, Frederick H. Wachsmuth and Louis C. Wachsmuth, were the sons of the deceased, Henry F. Wachsmuth. They were on March 15, 1899, in the wholesale clothing business in Chicago, and at that date their father loaned them $10,000. Louis C. Wachsmuth testified in this proceeding that a short time afterward his father said: “I have cancelled this debt”, and, again, “Ton are having trouble and I will help you out. I will give you that”. The Probate Court rightly held that the agreement which this testimony tended to prove would be without consideration and ineffective either as an executory contract or a gift inter vivos, and the appellants make no contention to the contrary in this court.

We are thus brought to the question whether the sum of $10,000 and interest should be held cash assets in the hands of the executors. On the propositions of law involved in this question, the parties and the Probate Court are, as we understand it, in substantial accord. At least no strenuous contention is made by either party that the rule which we understand the Probate Court adopted, and which we believe to be the correct one, is not the law of Illinois. It is that executors or administrators are chargeable with a debt due from them to the estate as cash assets in their hands only when they are solvent. Even if they could show that they were insolvent, they were held so chargeable by the common, law and they are so held by what has been denominated the Massachusetts rule. Leland v. Felton, 1 Allen, 531; In re Howell, 66 Neb. 575, reported with annotations also in 61 Lawyers Reports Annotated, p. 313.

But because this rule worked injustice and hardship, particularly to the bondsmen of insolvent personal representatives, the courts, as is said in Sanders v. Dodge, 140 Mich. 236, have “modified this rule somewhat”. The opinion in that case quotes from Dame on Probate and Administration with approval the following: “It is a well established rule of law, running back even before the Revolution, that an executor or fl.dTniTiistra.tor is considered as having paid the debt due from him to the estate and as actually having in his possession that much more cash. If the personal representative is insolvent, the courts, in the interests of all concerned, modify this rule somewhat. He still charges himself with the amount of his debt, but it does not make it actually money. The law does not require impossibilities, and there is no more reason why he should be considered as having paid what he was utterly unable to pay than any other creditor. He is held liable to the estate to the extent _ of his ability to pay the same at any time during administration”.

This doctrine is approved in In re Walker, 125 Cal. 243; in Lyon v. Osgood, 58 Vermont, 707; in In re Georgi, 47 N. Y. Suppl. 1061; McCarty, Admr., v. Frazer, 62 Mo. 263, and Wilson v. Ruthrauff, 82 Mo. App. 435. The California decision above cited states it on text-book authority to be the law of Indiana, Maine, Wisconsin, New Jersey, New York, Oregon, Pennsylvania, Tennessee and Vermont. We think that it is also the law of Illinois and that the principle is fully recognized in the language of the opinion of the Appellate Court of the fourth district in May v. Leighty, 36 Ill. App. 17, and of the second district in Phillips v. Duckett, 112 Ill. App. 587.

With these conclusions reached by the undivided court, there only remains for this court, as there did for the Probate Court under the same conditions, as the ultimate query on which the decision of the case must turn, the question of fact: Were Frederick H. Wachsmuth and Louis F. Wachsmuth insolvent on and after the death of Henry F. Wachsmuth on November 2, 1900, up to the hearing of this cause, and the order appealed from which dismissed the petition on June 22, 1907?

Counsel for appellees claim that all the authorities which hold that the insolvency of the executors prevents the indebtedness from being reckoned as cash assets, place upon them the burden of showing their inability to pay; but under the circumstances of this case, it will be, we suppose, conceded that if the insolvency immediately after the death of Henry F. Wachsmuth and at the time of the issuance of the letters testamentary is established, that condition will be presumed to have continued except so far as the evidence in the record shows that it has been changed. That, at all events, is our view, and it is on the assumption of its correctness that we pass on the question at issue.

The Probate Court decided that the evidence did not establish the insolvency of the executors, but, on the contrary, established their solvency at the time of their appointment and qualification, and this court (but not unanimously) has arrived at the same conclusion. The order of the Probate Court will therefore be affirmed.

It is not necessary to discuss at any length the reasons for our differing opinions on this question of fact. Succinctly stated, they are as follows: A year or more before the death of Henry F. Wachsmuth, Louis C. and Frederick H. Wachsmuth, afterwards the executors, had become financially embarrassed in the wholesale clothing business, which they were conducting. Their father helped them to a settlement, but when he died they were insolvent. They had only $5,000 of assets and twenty-six or twenty-seven thousand dollars of liabilities. After that they continued in business without making any recoupment of their losses, and by the end of 1902 their business was closed out, and they had no assets, but liabilities of from twenty to twenty-five thousand dollars. Judgments were obtained against them and creditors’ bills filed on the judgments, apparently without result.

But Henry F. Wachsmuth devised to Louis C. Wachsmuth the Forty-seventh street property (mentioned in the prefixed statement as piece No. 2), subject to an encumbrance of $11,000 and some accrued interest, and to Frederick H. Wachsmuth the Rhodes avenue property (mentioned in the statement as piece No. 1), subject to an encumbrance of $10,000, and the Groveland avenue property (piece No. 3), subject to a first encumbrance of $4,500 and a second one for $10,000, to both Louis C. and Frederick H. “share and share alike”. He also gave them, as executors, power to sell or to mortgage all said real estate.

Reckoning, then, that at the time of the death of their father they were even $22,000 worse off than nothing (including the $10,000 debt to their father in the account), yet if these equities in the three pieces of property mentioned were worth that amount, it is the opinion of the majority of this court that they would then have become solvent under the operation of the devises before their appointment and qualification as executors.

The bill of exceptions or certificate of evidence in this case concludes with the following recital:

“It is stipulated by all counsel that at the time of the death of Henry F. Wachsmuth, deceased, the fair market value of the Rhodes avenue property was $30,000, subject to an encumbrance of $10,000, and that the value of the Forty-seventh street property was $30,000, subject to an encumbrance of $11,000, and of the Groveland Park property $10,000, subject to encumbrances of $4,500 and $10,000, making a total value in real property of $70,000, subject to mortgages made by Henry F. Wachsmuth, deceased, aggregating $35,500”.

It is also the opinion of the majority of the court, which agrees in this with the decision of the Probate Court, that the effect of this stipulation is to show that the equity in .the Bhodes avenue property, which Frederick H. Wachsmuth received, must be considered among his assets at the approximate figure of $20,000, and that the equity in the Forty-seventh street property, which Louis C. Wachsmuth received, must be reckoned among his assets at the approximate figure of $19,000. No account need be taken in this calculation of the Groveland avenue property,- which was encumbered for more than its value, on which encumbrances, however, the devisees were not personally liable. It is plain, of course, that if this $39,000 is properly to be estimated as a valuable and available holding of the two devisees and executors, it overbalanced their indebtedness by $17,000, and left them solvent and chargeable with the indebtedness to the estate as cash assets. This, it was the decision of the Probate Court and is the decision of this court, it did. Therefore the petition to sell real estate was dismissed by thé Probate Court and the order is by this court affirmed.

The writer of this opinion, however, does not agree with this conclusion. His criticism of it is based on the same considerations urged against it in the appellants’ brief and argument, and need not be here elaborated. He thinks that under the true meaning of the rule concerning the treatment of a debt from an executor as assets in hand, the debt can only be so considered when the executor could, with the property in his possession or under his control belonging to him, have paid it.

The equities in real estate involved here were not an available fund. The results have shown it. That “the fair market value” was a certain amount, does not mean that the property could have been at any time sold for that much, subject to encumbrances due or soon coming due, and to the contingencies involved in winding up the estate of the decedent devisor.

Both the Rhodes avenue property and the Forty-seventh street property are now in the hands of other parties through the immediate or mediate effect of the encumbrances which were on them at the time of the testator’s death.

The Rhodes avenue property was foreclosed under such an encumbrance, and the Forty-seventh street property on one which was substituted for such an encumbrance, and from the proceeds of which the original encumbrance was paid.

But as this is not the view of the majority of the court and on all the other points in the case we are agreed, the judgment of the Probate Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mb. Justice Bbowu

license: Public Domain

text:
    City of Chicago, Defendant in Error, v. A. J. Perdue, Plaintiff in Error.
    Gen. No. 14,336.
    Criminal law—effect given to evidence of good character. In a prosecution for a criminal offense, where a serious douht arises under the evidence as to the guilt of the accused, evidence of good, character will prevail.
    Error to Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed.
    Opinion filed March 22, 1909.

      S. A. McElwee, for plaintiff in error.
    No appearance by defendant in error.
   Mb. Justice Bbowu

delivered the opinion of the court.

The plaintiff in error, a colored man, was arrested and tried before the Municipal Court of the city of Chicago, for a violation of section 1454 of the Revised Municipal Code of Chicago, and found by a jury guilty of a violation of the same. The jury assumed “to assess his fine” at one hundred and fifteen dollars, an assessment which the court acquiesced in, rendering judgment, as it appears in the transcript, that “the plaintiff have and recover of the defendant the said one hundred and fifteen dollars upon the verdict heretofore rendered in this cause, for its debts and also its costs and charges herein taxed at ............dollars, and that it have execution therefor”.

A motion for a new trial had been heard before the judgment, and considerable .amount of new evidence in one form and another introduced on it, but the motion was denied. To reverse this judgment the defendant sued out a writ of error from this court which has been made a supersedeas.

The city has filed no appearance or briefs in this court. We have taken the case under careful consideration from the record. Some objection is made by the defendant to the irregularity of the complaint, verdict and proceedings, but we have disregarded it. We prefer to place our decision on the merits as they appear from the transcript of the record.

The “bill of particulars”, which the prosecution was ruled to make, was contained in a note from the city prosecutor’s office to the defendant’s attorney, in which the prosecutor said that he would prove “that the defendant did on October 17, 1907, at about 4 p. m. on said day, at the corner of an alley running north and south between Ellis and Drexel avenues, on the north side of Forty-fifth street, in said city of Chicago, commit an act tending to a breach of the peace, to wit, that the said Perdue did then and there accost one Theresa Newberg, a child aged thirteen years, residing at 4437 Ellis avenue, and attempted by force to drag said Theresa Newberg into said alley, but was prevented by one Laurine Bremner from so doing. That said Perdue has been guilty on divers occasions of forcing his attention upon children residing in said locality”.

The evidence adduced to support this alleged violation of the ordinance, or any other violation of it, seems to us weak, independently of the very strong testimony of good character given for the defendant, and independently of the evidence heard on the motion for a new trial directly contradicting the prosecuting witnesses. Theresa Newberg, a girl thirteen years old, swore that about a year before, as she was going home from school, the defendant “threw kisses at her and winked and bowed”; that three months after he came up- to her, when she was walking with another girl named Laurine Bremner, about the same age, and “grabbed” her by the sleeve of her coat. Witness said “Stop that”, and the defendant said, “I’m not going to hurt you”. Then she and Laurine ran away.

Nathalie Newberg, a sister of this witness (it does not appear whether younger or older), testified that about a month before the trial—“Sometime in the morning”—the defendant passed their home while her sister Theresa and she were sitting on the porch. Being asked, “What did he do?” she answered, “Whenever he sees us he begins whistling and singing and beckoning, like that” (indicating). The examination proceeded thus:

“Q. What direction was he going?

A. He was going north. He walked a few steps and then he turned and beckoned again..

Q. What was his manner of beckoning?

A. It was terrible,—he laughed and leered and whistled and beckoned like this”. (Indicating). "Theresa was afraid and wanted to go into the house, and I said, cNo, you go. on reading. He can’t hurt you.’ And we went on doing what we were doing, and he went up the street after he saw we didn’t pay any more attention to him”.

Nathalie Newberg also testified that during the month of October (the month of the trial), at about dusk as she was going along Forty-fifth street, she heard some one whistle and when she looked across the street she saw the defendant there. He whistled and laughed again, and quickened his pace when she quickened hers, and slowed up when she slowed up. “He was walking parallel with me”, she says, “and then when he got to the crossing he didn’t know whether he was going or not—some automobiles were coming, and he decided to go the other way”.

Helen Kuh, a little girl eight years old, also swore that when she was with Laurine Bremner one day, the defendant, who was washing windows near by, said that he had some candy for them, but they made no answer.

The defendant denied absolutely all the charges of “throwing kisses” or “whistling” to the girls, or taking either by the arm, or saying anything to either of them, although he said all the children in the neighborhood where he did janitor work knew him by sight. He produced an abundance of testimony to his good reputation for morality, industry and temperance.

On the motion for a new trial it was shown by apparently satisfactory evidence that Laurine Bremner had, on examination by her father, denied the truth of Theresa Newberg’s story as far as it related to herself, and told him that the only thing she could think of as a basis for it was, that one day when she was on her way to school and Allen Perdue was sprinkling a lawn, he said, “Wait a moment, little dears, and I will take the hose out of the way”. It also appeared that at the trial Laurine Bremner was in the hallway of the court building with her father and Theresa Newberg attempted to induce her, against her protest that she knew nothing of such an incident, to “tell about” the defendant’s “catching her by the arm”. “For”, she said, “if you don’t tell the same story that I did, you will make me out a liar”. This excited the Bremner girl to a high degree, and after being taken into the court room by an officer, she was taken away by her father without testifying, whereupon counsel for the prosecution remarked in the presence of the jury that said condition was the result of fear of the defendant, and that thereby the prosecution was deprived' of her testimony.

The mother of Helen Kuh testified that Helen had never varied her story, but said that she, the mother, had expressed the opinion—with which we coincide— that it would be rather absurd to convict a man of any offense by it.

The exact truth it may not be possible for us to arrive at, but the defendant is entitled to the benefit of the very pronounced doubt which we entertain, whether the whole story of improper attentions did not spring from the over excited imaginations of young children, to whom suggestions of danger from colored men have been made. When a matter of this sort is in doubt, evidence of character should prevail. We do not think there is sufficient evidence in this record to convict the defendant of any offense against the city ordinance, and the judgment of the Municipal Court of Chicago is reversed.

Reversed.


author: Mr. Justice Brown

text:
    Charles J. McGuire, Plaintiff in Error, v. James T. Bransfield, Defendant in Error.
    Gen. No. 14,352.
    1. Municipal court—what questions arising in, not subject to review. Questions of practice arising in the Municipal Court, by virtue of statute are not subject to review in the Appellate Court.
    2. Municipal court—what does not exclude right to file set-off. The failure to interpose a set-off at the time of entering appearance does not bar the right of the Municipal Court to permit a subsequent filing.
    3. Contracts—what justifies refusal to pay. Abandonment of work under a contract before a default has been made by the other party justifies his refusal to pay.
    4. Set-off—remedy by way of. In an action brought to recover a sum stipulated to be paid by a contract, the defendant may interpose by way of set-off a claim for damages for breach of such contract and if such damages exceed the amount of the plaintiff’s claim a judgment for the excess may be rendered.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 22, 1909.
    Richard E. Burke, for plaintiff in error.
    Edward R. Litzinger, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The judgment which it is sought to reverse by this writ of error was rendered by the Municipal Court of Chicago on January 15, 1908. It was rendered by the court sitting without a jury, a jury having been waived. The plaintiff, McGuire, had sued the defendant, Bransfield, for certain excavating which the plaintiff had done for the defendant under a contract with him, and for certain small items of rent and damage for a tent and the use of lumber. The claim was named at $1,000, a few dollars being rebated from it to make it a case of the fourth class.

The suit was brought December 19, 1907, the writ being made returnable on December 24, 1907. The defendant, Bransfield, filed his appearance on December 23, 1907, and on January 8, 1908, asked, and on January 11, 1908,. obtained, over plaintiff’s objection, leave to file a claim in set-off, as follows:

“For loss sustained by Bransfield by reason of the failure on the part of McGuire to carry out contract, $699.09”.

January 15, 1908, the case was tried and the judgment rendered. The judgment was in favor of the defendant, against the plaintiff, and awarded defendant on his claim of set-off $202.41.

The first point made by the plaintiff below and • plaintiff in error here, is that the judgment is erroneous because the claim or plea of set-off was improperly filed, the order allowing it being erroneous. This is assigned for error, but we doubt very much whether the plaintiff had the right to assign it or we have the right to consider it.

The language of the Municipal Court Act applicable to fourth class cases (section 23, paragraph 8) is:

“No assignment of error in the Supreme Court or in the Appellate Court in any such case shall be allowed which shall call in question the decision of such Municipal Court in respect to any matter pertaining to the practice in such Court”.

The plaintiff argues that it is against the direct language of the Municipal Court Act to allow the defendant to file a statement of set-off or counter-claim unless he files with it his appearance or gets a formal order when he appears extending the time to file it. The language on which he relies is this:

“In case the defendant shall desire upon the trial to present any set-off or counter-claim, he shall file a statement thereof, with his appearance; provided, however, the court may, in its discretion, extend the time for filing such statements.”

We think the question whether this provision of the Act allows the Municipal Court to “extend the time for filing a statement” by an order subsequent to the appearance of the defendant, is a “matter pertaining to the practice” in that court, of which it is made the sole judge. But if this be not so, it makes no difference in this case, for we think the Municipal Court holds correctly in holding that such an order is allowable.

• Of the merits of the case very little is said in the argument of either party.

It appears to be conceded that the plaintiff abandoned the work under the contract he had with the defendant, unjustifiably, although in the somewhat unsatisfactory “Statement of Evidence”, filed in the cause, from which we are obliged to learn the facts, he is shown to have testified that he was “compelled to stop his work by hard and incessant rains”.

It also appears by the contract that the plaintiff was to excavate approximately 5,000 cubic yards, at forty-five cents per yard, and to finish it by October 1, 1907. He actually left the work September 26th, and did not signify any willingness to return on any condition until October 8th, which was a week after the whole contract was to have been finished, but then said he was willing to go on if he could have a payment with which to pay his men. He claimed then, as we understand it, that the defendant owed him and had owed bim since October 1st, between five and six hundred dollars, under the clause of the contract that payments were to be made semi-monthly from date of the beginning of the work, according to estimates given by the Hlinois Tunnel Company’s engineers, less ten per cent, to be reserved until the completion of the contract.

If the defendant had committed the first breach of the contract by refusing to pay what was due when it was due, the plaintiff would be excused from going on, but in this case the first" semi-monthly payment seems to have been made according to the contract, and then the plaintiff abandoned the contract, unjustifiably, before another payment became due, and within four days of the time when its completion was, required by its terms. Its completion, moreover, was required by its terms at the same time that the second semi-monthly payment was due. Therefore, the second payment was to be the final one, and the defendant was justified in refusing to pay until the contract was completed.

The only point argued by the plaintiff on the merits is that he is entitled to compensation for all the excavation that he did, notwithstanding the breach of his contract, because by it all he conferred a benefit on the defendant.

This needs no discussion for the reason that under the judgment rendered, it appears that the plaintiff received the benefit of all the excavation he had made. As we have said, the statement of evidence is unsatisfactory, but all we can make of it is that the 61 approximate” 5,000 cubic yards of excavation to be made proved in fact, under the construction given to the contract by both parties, 6,196 cubic yards; that of this amount McGuire excavated 2,884 cubic yards • and Bransfield himself 3,312 yards; that these 3,312 yards cost Bransfield $2,476.61 to dig; that this was at the rate of about seventy-five cents a yard; that this was thirty cents a yard more than the contract price, and as it must be presumed, as the record stands in the absence of any suggestion to the contrary, that this was in good faith the measure of his damage, and that he could not complete the contract for less money, his damages must have been, for the failure of McGuire to complete his contract, about $1,000—more exactly, according to the figures given—$986.21.

McGuire excavated 2,883 cubic yards, which at forty-five cents a yard, the contract price, would amount to $1,297.35. He had been paid $600 and $697.35 would remain due him. Off-setting $697.35 against $986.21 leaves $288.41. The court apparently awarded this amount, less the damage to tent and loss of lumber claimed by plaintiff. It will thus be seen that the plaintiff received full credit at the contract price for all his work done. Had he not, the judgment against him would have been $697.35 more, or $899.76, instead of $202.41.

That the damages to the defendant for the breach of the contract could be properly set up in this action as a set-off and a judgment given him for the excess over the plaintiff’s claim is clear. See Weaver v. Penny, 17 Ill. App. 628, and Scudder-Gale Grocer Co. v. Russell, 65 Ill. App. 281, and the cases therein cited.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Me. Justice Bbown

text:
    John Gallivan, Plaintiff in Error, v. Frank M. McCarthy et al., Defendants in Error.
    Gen. No. 14,347.
    Master and servant—when doctrine of assumed risle may apply, notwithstanding order of foreman. Not every direction from a foreman to a workman eliminates the assumption of risk; if it he “an order given to a servant in the ordinary course of his employment, even though the act to he done is dangerous,” it “does not make the master liable for an injury which he could not be expected to anticipate."
    Action in case for personal injuries. Error to Superior Court of Cook county; the Hon.-Robert W. Wright, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 22, 1909.
    John C. King and William J. King, for plaintiff in error; Jambs D. Powers, of counsel.
    E. S. Hartman, for defendants in error.
   Me. Justice Bbown

delivered the opinion of the court.

In this case the plaintiff in error sued the defendants in error in the Superior Court for personal injuries received on April 11, 1902, while he was engaged in their service (under employment by one Donahue, who had contracted with defendants for the use of his team), in hauling dirt from a tunnel excavation on Thirty-ninth street in Chicago, and dumping it on a vacant lot at Thirty-sixth and Butler streets.

The suit was begun on October 16, 1902, and came to trial in January, 1905, before a jury. The issues formed by the declaration and the pleas of not guilty filed by the defendants were submitted to the jury, which returned a verdict for the defendants, on which judgment was entered February 25, 1905. This writ of error was sued out January 16, 1908.

The declaration alleged the negligence of the defendants to consist in their having, through their foreman, ordered the plaintiff to upturn a wagon in a manner that unnecessarily and unreasonably endangered and jeopardized him. The wagon had been thrown down oh its side to -dump its contents, and then to pull it back into place chains were put over the body and connected by hooks at one end to the wheels, which were lying on the ground, and at the other end to a whiffletree attached by harness to two horses, which the plaintiff was driving. The horses were then started, and had the plan worked as usual the wagon would have been restored to an upright position. But in this instance the hook attached to the front wheel gave way. The rear of the wagon was pulled back to an upright position and stood on the rear wheels, while the front of the wagon remained on its side, with one of its front wheels flat on the ground. The construction of the wagon which permitted this is not explained but the fact itself is clearly stated in the pleadings and testimony. The declaration alleges, that at this juncture the “defendants, through their said foreman, then ordered plaintiff to set back his horses; that plaintiff was then and there ordered to go on after one chain was hitched to the wheel at the end that did not come at the first effort; that then and there, by the direction of defendants foreman, plaintiff drove his said horses forward, and one chain only being attached to said wheel, it pulled the tongue of said wagon suddenly around, striking plaintiff upon the back and shoulders, dislocating his shoulder and breaking three of his ribs, and otherwise seriously injuring plaintiff internally, externally and permanently”.

The plaintiff asked no instructions and none were given at his instance, but at the instance of the defendants fourteen instructions were given, by which the jury were told that the plaintiff, to recover, was required to establish his case by a preponderance of the evidence, and then especially informed on the law affecting the assumption of risk by an employe, and on the doctrine of “fellow-servants”.

They were told in an instruction complained of by the plaintiff in error, that—

“An employees chargeable with knowledge of the ordinary conditions under which the business is conducted, and its ordinary risks and hazards, and will be presumed to have assumed all such risks and hazards, which to a person of his experience are or ought to be patent and obvious. Such risks and hazards are to be regarded as patent if by the exercise of ordinary care the same would be discovered. And if in this case, you believe from ¡the evidence that the conditions which produced the alleged injuries were such that a person in the exercise of care and caution could have known of them, then the hazard, if any, is one that the plaintiff will be regarded as having assumed and there can be no recovery” .

• The other material statements of the court in the instructions were that an employer is not liable for an injury that may accrue to a servant by reason of the negligence of a fellow-servant in the same line of employment, and that the mere fact that one servant gives or has a right to give directions in the execution of the work, does not prevent him from being a fellow-servant of the other, acting with such other at the time of the accident, in the same line of employment; and, further, that the burden was upon the plaintiff to prove that the witness, O’Brien (the man who was alleged to have given the direction which resulted in the accident), was a foreman in the employ of the defendants, and had charge of the men working upon said dump, and that if he was not the so duly authorized foreman, the verdict should be for the defendants; moreover, that even though O’Brien was foreman for the defendants, yet if the accident happened from some negligence of said foreman which related to the foreman’s duties as co-laborer with the plaintiff, and which might just as well have happened with one having no such authority, then the verdict should be not guilty.

The plaintiffs in error place their entire case on the alleged error in giving the instruction concerning assumed risk, quoted above. They insist that however acceptable this may be as the statement of a general rule, it was misleading and erroneous as applied to the facts in this case, which turned, as it is claimed, solely on the charge that a special order that resulted in the injuries was given to the plaintiff by a foreman or vice-principal. This eliminated, it is argued, all question of the assumption of risk, for on .such a special order the employe is not held to assume the risk of any danger which is not so imminent and apparent that no man of ordinary prudence would incur it.

We do not think the instructions taken together could have misled the jury. The issues under the declaration and pleas were not exactly and wholly as plaintiff claims,—that is, the questions whether 0 ’Brien was a foreman and whether he gave the order involved.

They also included the question whether the foreman, if he was a foreman, was negligent' in giving the order, and if the order was one which could be called special, coercive or peremptory, or one which directed the plaintiff to do anything outside of the ordinary duties for which he was employed.

For the exception to the general rule of assumed risk which depends on a special order involves these factors. Not every direction from a foreman to a workman eliminatés the assumption of risk. If it be “an order given to a servant in the ordinary course of his employment, even though the act to be done is dangerous”, it “does not make the master liable for an injury which he could not be expected to anticipate”, says the Supreme Court in Swiercz v. Illinois Steel Co., 231 Ill. 456, in which case it reversed the judgments of the Circuit and Appellate Courts because of the instruction quoted by the plaintiff in error in this cause in his argument, and relied on to show the erroneousness of the instruction he is attacking.

We do not think the evidence in the case at bar bears out the idea that the order involved was in any sense a peremptory and coercive one. It was merely one given to this teamster of twenty-two years standing, in the ordinary course of the duties and employment he was pursuing. The danger, such as it was, was apparent, the appliances very simple, and, as we believe, the necessary precautions in the power of the plaintiff to take. On the assumption that O’Brien was a foreman, the case is more like Mohr & Son v. Mortewicz, 139 Ill. App. 173, than like any on which plaintiff in error relies.

The plaintiff asked no instructions in this case. If his counsel desired the jury carefully instructed as to the effect of peremptory and coercive “hurry orders”, they should have brought that wish and the claim that such an. order was given, to the specific attention of the court.

We should be, however, far from willing to disturb the verdict of the jury, even though we knew it to be the result of a finding that O’Brien was not a vice-principal, but merely a fellow-servant of the plaintiff in the work which eventuated in the accident. On the contrary, we think that the more reasonable view to take of the evidence as a whole. We believe that justice has been done between the parties by the verdict of the jury, and the judgment of the Superior Court, and the judgment is affirmed.

'Affirmed.


text:
    Teofil Stan, Appellee, v. William C. Regelin et al., Appellants.
    Gen. No. 14,371.
    Accord and satisfaction—when evidence tends to establish. A check which does not contain a notation that it is in full may, upon being cashed, constitute an accord and satisfaction if it appears from the evidence that the conduct of the parties shows that it was tendered and received in full.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 22, 1909.
    T. F. Monahan, for appellants.
    A. G-. Dicus, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

We are not satisfied that justice has been done in this cause. We think that the evidence leaves it much in donbt whether anything more than the $137.50 which he received was ever promised to the plaintiff, Stan, as his compensation for the services which as broker he performed in securing a purchaser of the property owned by the client of the defendants, Begelin and Jenson.

It may, however, have been a question for the jury whether more than that amount was not so promised.

But when the question is of the amount, if any, over $137.50, to which the plaintiff is entitled, we think the weight of the evidence and of the reasonable probabilities which may be gathered from the evidence is altogether against the verdict and the judgment.

On this evidence a verdict can be sustained at the most for nothing more than would give the plaintiff, with what he has already received, one-half of the amount of compensation or profit or commission, whatever it may be properly called, which the defendants themselves secured from the negotiation and sale involved. We shall, for this reason, reverse the judgment and remand the cause for another trial, and we refrain from more detailed comment, therefore, on the evidence.

But there is a question involved in the case on which we must briefly comment, because it was practically ignored on the trial, and it may be controlling in another one. We do not place our reversal on the theory of law on which the question must be answered, because, although it was not mentioned in the charge of the judge, as it should have been, the defendants did not then and there object and demand that it be presented to the jury. They make a point of it in this appeal, however, and we ought to notice it.

Under the evidence as it stands, we think the payment of the check of $137.50 by the defendants to the plaintiff on November 10, 1904, the plaintiff’s complaint of the size of it made November 11, 1904, through his agent and messenger, to the defendants, the conversation—not denied—in which the plaintiff’s representative was told by one of the defendants, “If you are honest and sincere in your statement that there is a misunderstanding, return that check to me and then we can talk it over”, the retention of the check by the plaintiff, notwithstanding this request, the holding it, however, without cashing it for over a year (going far to show a feeling that cashing it would be an acceptance of the defendants’ terms), and then on November 28, 1905, more than.a year before this suit was brought, the presenting and cashing it and retaining the money—all taken together is sufficient evidence of an accord and satisfaction under the doctrine, carried in this state much farther than in many, of Ostrander v. Smith, 161 Ill. 339; Lapp v. Smith, 183 Ill. 179; and Canton Coal Company v. Parlin, etc., 215 Ill. 244.

It is true that no express notation on the check in this case, or any .letter accompanying it, notified plaintiff that it was meant to be in full payment, but his conversation the next morning showed that he did so understand it, and, at all events, he was plainly enough then informed of it, and he did not realize on the check or turn it into actual cash until a year afterward, during which time it certainly appeared that he must have thought that it was a question whether he would be giving up claimed rights if he did it.

Under these circumstances, when finally he did cash the check, we think he made his choice and the accord and satisfaction were made. Perhaps if there is another trial, more attention will be paid to this particular matter and more light will be thrown on it.

But if the evidence concerning it is in no respect different, we do not think the plaintiff can properly recover anything.

The judgment of the Municipal Court of Chicago is reversed and the cause remanded to that court.

Reversed and remanded.


author: Mr. Justice Holdom

text:
    Emma Moennich, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,149.
    1. Verdicts—when set aside. A verdict which is palpably contrary to the manifest weight of the evidence will be reversed on review.
    2. Personal injuries—when evidence as to physical condition caused 6y accident insufficient. In this case it was claimed that the plaintiff as a result of the injury to her became afflicted with rheumatoid arthrites; the verdict was large and the court held that before such a verdict in such a case could be sanctioned on review, the evidence in the record must by its preponderance contain every essential element necessary to establish that the existing physical condition of the plaintiff was clearly traceable to the traumatic injury suffered as the result of her accident.
    3. Evidence—when latitude should he allowed upon cross-examination. Wide latitude should be allowed in the cross-examination of witnesses examined hypothetically.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 22, 1909.
    Edward J. Bruhdage and John R. Caverly, for appellant ; Edward C. Fitch, of counsel.
    Kruse & Peder, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff recovered, on the verdict of a jury, a judgment against defendant for $10,000, to reverse which the record is brought here for our review. The cause of action is for damages resulting to plaintiff from personal injuries sustained in falling through a rotten sidewalk negligently maintained, it is claimed, by the defendant municipality.

It is argued for reversal that the verdict is contrary to the weight of the evidence; failure to direct a verdict for defendant, as requested; that the dam- ■ ages awarded are excessive and the result of passion and prejudice of the jury; erroneously excluding and admitting certain evidence, and refusing to give certain instructions tendered by defendant.

We are convinced that the verdict and judgment are so palpably contrary to the manifest weight of the evidence that it is our duty to reverse the judgment and send the cause back to the court below for another trial. In so doing we shall refrain from commenting upon matters not essential to re-enforce the reasons which impel us to the conclusions to which we have arrived, or necessary, in our judgment, to enable the trial court to avoid on a retrial the errors which bring about this reversal of its judgment.

The result of the fall through the sidewalk first made itself manifest in an injury to plaintiff’s right knee. The accident occurred on the morning of May 23, 1903, while plaintiff was on the way to her employment. There was no witness to the accident. She testifies she suffered pain; that she cried, but continued her journey on foot until she reached the place of her employment. She then started to work and so continued until about four o’clock in the afternoon. As she complained of her knee hurting her, Mrs. Strusacker, by whose husband' she was employed, examined it, and finding it swollen applied to it some liniment and took her to the office of Dr. Maguy a short distance away, who examined her knee and prescribed rest and an application of antiphlogistine. She then returned to her home and at once took to her bed, her mother applying hot applications to the injured knee, and the next morning procured the antiphlogistine prescribed by Dr. Maguy and applied that to her knee. She remained in bed a week or more, after that time sitting up and resting her foot on a chair, and so continued for four or five weeks, after which she went limping around the neighborhood of her residence. Dr. Maguy visited plaintiff but once—the day succeeding that of the accident. Some time after the accident plaintiff visited Dr. Maguy’s office and complained of a pain in her side. In the middle of September, 1903, plaintiff started to work as a dressmaker and continued to work as such until May, 1904. She walked to and from her work, a distance of about six blocks. Then, she went to Benton Harbor, Michigan, and worked on a fruit farm five miles distant from Benton Harbor, returning to Chicago the following July, after the strawberry, raspberry and cherry picking was over. She then worked for Mrs. Stoltz, at Washington Heights, doing general housework and swept, washed, and scrubbed for the family. In August she cooked, scrubbed, and washed for Mrs. Frost in Woodlawn. Chicago, and so continued to do for about one year. From August to November, 1905, she remained at her home, and after that worked for Mrs. Shiffer, doing substantially the same character of work that she had done for Mrs. Stoltz and Mrs. Frost. At Christmas, 1905, she did general housework in the family of her brother at Goodenow in this state, and in March, 1906, returned to Chicago and went to work for Mrs. Justice, doing the family housework for two weeks. After leaving Mrs. Justice she stayed at her home until January, 1907, when she went to a sanitarium at Milwaukee and remained there for about ten weeks. While at the sanitarium she took medicine inwardly and baths and massage. Prior to that her knee grew worse and troubled her so much that in July, 1906, she took to her bed and remained there until November of that year. While the doctor at the sanitarium did not tell her what ailed her, he told her mother that she was suffering from articular rheumatism in her hands. Plaintiff testified that the only medical treatment from the time of the accident to the trial received by her, aside from Dr. Maguy, was from Dr. Hulett, who treated her for cold and chills in August, and September, 1905; a Dr. Lotz, who treated her for her knee, and a Dr. Webb, who treated her for her knee, foot and back in May, 1906. Neither of the three doctors last named appeared to testify upon the trial, nor was any reason assigned for their absence. Dr. Stack, who treated her at the Milwaukee sanitarium for ten weeks, was not called as a witness. Some of plaintiff’s neighbors and family testified that after the accident she limped and had rheumatism in her arms, joints and legs, and that at times her hands swelled, and some of the people for whom she worked testified that she limped and complained of pains in her hands, arms and joints, and of rheumatism. Dr. Maguy was the only attending physician produced upon the trial, and his evidence was confined to the condition of plaintiff’s knee and his treatment of it. He was not interrogated concerning the causes producing the physical condition in which she claimed to be at the time of the trial. Three medical men—Dr. Murdock, Dr. Ballard and Dr. Krost—were produced as medical experts, and testified as to plaintiff’s physical condition and its producing cause. They each examined her a few days prior to the trial, for the sole purpose of qualifying themselves to testify as medical experts. Their evidence developed that plaintiff’s right knee was stiff and the leg almost at a right angle to the thigh; that the leg could not be straightened; that owing to an enlargement of the condyles of the thigh-bone and a slight thickening of one of the ligaments, the joint was larger than that of the left knee; that the left ankle and elbow and the wrists were swollen and that there was ankylosis of the left elbow, which was drawn up at right angles in the same position as the right knee. Some of these witnesses intimated that such condition might be attributable to tuberculosis of the several parts. Medically they termed this condition rheumatoid arthrites, which is a rheumatic inflammation of the joints. There was also present synovitis,, which is an inflammation of the synovial membrane of a joint. The medical men do not disagree about the condition of plaintiff, but as to its superinducing cause they are in hopeless conflict.

Counsel have, throughout the record and in the abstracts and briefs, fallen into a misnomer in designating the disease from which plaintiff suffers. It is, as above stated, rheumatoid arthrites, as the physicians unquestionably defined it—not rhomboid arthrites, as appears in all the papers in the cause wherever it is referred to. “Rhomboid” does not pertain to any ailment of the human body, but is a geometrical term applied to an oblong'figure, the longer sides of which are horizontal and parallel and the shorter sides oblique and parallel, giving two obtuse angles and two acute angles; an oblique-angled parallelogram. See International Ency.—‘ ‘ Rhomboid ’ ’.

That plaintiff is the victim of the most painful and permanent form of rheumatic condition is not seriously in dispute. That she is afflicted with the deformities in her knee, leg and arm, as detailed by her medical expert witnesses, there is but little room to doubt, taking into account the countervailing evidence of the defendant’s expert medical men, Drs. Doane and Hall, on this subject. Dr. Doane testified that he examined plaintiff and found her suffering from rheumatoid arthrites, affecting the right knee-joint, the left ankle and right wrist, the first joint of the little finger, the second joint of the thumb, the left elbow. The right knee-joint was stiffened and at right angle with the bones of the leg and thigh, with very little, if any, “flexion”; the right-wrist was in an ankylosed condition, much bent and swollen-; a joint in the little finger of the right hand was immovable, and the thumb joint was partially so; the left elbow was likewise in an ankylosed condition and stiff. Dr. Hall testified to having found plaintiff afflicted with about the same difficulties as detailed by Dr. Doane. Rheumatoid arthrites, Drs. Doane and Hall gave as their professional opinion, arose from faulty elimination of the waste and poisonous substances of the body; also, that any germ which causes disease in the body by inflammation and creates an inflammation in the joints, is medically termed rheumatoid arthrites. That traumatism does not cause rheumatism, these medical men also stated as their opinion.

The theory of counsel for plaintiff, and upon which the cause was tried, is, that the injury to the knee caused by the fall through the sidewalk is the primary and efficient cause of the rheumatoid arthrites from which plaintiff was suffering at the time of the trial, and that such condition is traceable to the injury sustained by plaintiff at the time she fell. Upon this theory, and none other, did the jury award the very substantial sum which they returned in their verdict as damages. For the apparent injury to plaintiff’s knee, suffered at the time she fell, a comparatively moderate sum would have been full compensation. Therefore, before so large a verdict can be sanctioned on review, the evidence in the record must by its preponderance contain every essential element necessary to establish that the present physical condition of plaintiff is clearly traceable to the traumatic injury to the knee suffered as a result of her fall through the defective sidewalk. This must be so, even upon the assumption that the city was guilty of the negligence charged. We are not satisfied that the evidence of plaintiff, even if uncontradicted, can be held to trace her present physical ills to the unfortunate fall. The evidence relied upon to support such theory is altogether speculative and remote, and falls far short of establishing that such conditions are directly attributable to the injury to her knee, or in any satisfactory manner traceable to it. The two medical practitioners, Drs. Korst and Ballard, who testified for plaintiff, had no personal knowledge of plaintiff or the progress of her ailments. They testified as experts, making a physical examination of her but a short time preceding the date of the trial, and while they, in answer to hypothetical questions, attribute her physical difAcuities to the original injury to plaintiff’s knee, still they are met with equally as reliable medical experts, whose opinions to the contrary are entitled to quite as much respect and reliance as evidence as are the opinions of plaintiff’s physicians. On this controverted point plaintiff cannot be said to have the preponderance of the proof. Without such preponderance she is not entitled to recover compensation for the ills which now afflict her person, on the theory that they are traceable to her fall through the sidewalk. Moreover, we are impressed with the improbabilities of the theory of plaintiff’s medical experts from the fact, among others, that the more serious symptoms of plaintiff’s afflictions did not develop until a remote time after the accident. There was no abrasion of the skin at any time, which rendered infection from without possible. The germ theory, therefore, has no support in the evidence, making to our minds more probable the theory that the infection was from within and came about through poisons engendered in the system of plaintiff, owing to a failure of a natural elimination of waste substances in her body. This would seem to be a reasonable solution, from the further fact that the trouble is not confined to the injured limb, but has affected many of the joints of her limbs. Between the time of the accident and the manifestation of the more serious symptoms,plaintiff performed work of a hard and continuous nature, both in the household and in the field, incompatible with the claim that she suffered during such time with pain, inconvenience or impairment of the motion of her injured knee. The accident occurred May 23, 1903; the trial commenced April 3, 1907, nearly four years from the date of the accident; yet the examination of plaintiff’s physicians was confined to the injured knee, the other organs similarly afflicted not being referred to, and the rigidity and stiffness of this knee-joint being assumed to have developed within six months of the trial. Still, on cross-examination, Dr. Krost gave it as Ms opinion that plaintiff’s joints, left elbow, left anHe and wrists, were afflicted with the same disease he found in the right knee, being the knee that was injured in the fall. We regard the expert medical testimony of plaintiff as to the more serious ailments affecting her to .be mere hypothetical conjecture of so uncertain and unreliable a nature as to be unsafe for either court or jury to adopt as a basis for the admeasurement of damages.

There were certain limitations erroneously, we think, fixed by the court to the cross-examination of plaintiff’s physicians. Wide latitude ought to be allowed in the cross-examination of witnesses examined hypothetically, as in this case, and to rule out questions referring to rheumatic conditions of plaintiff on the theory that the presence of rheumatism in plaintiff was assumed in the cross-question, borders on the absurd, when it so clearly appears that by whatever medical term or phrase plaintiff’s ills may be designated, they are all more or less of a rheumatic character and attributable to rheumatic conditions. Such is plainly apparent in nearly every item of medical testimony. This error can be avoided on a retrial.

The objection to instruction 14 is without force, as the substance and important part of that instruction were contained in one given at the instance of appellant.

The verdict and judgment are so mamfestly contrary to the probative force of the evidence that they cannot be maintained. Consequently the judgment of the Superior Court is reversed and the cause remanded for a new trial consistent with the views above expressed.

Reversed and remanded.