text:
    Gertrude Walker, Appellee, v. Samuel A. Newman, Appellant.
    Gen. No. 14,197.
    1. Assignments—remedies of assignee of lease. The assignee of a lessor is entitled to the same remedies for the recovery of his rent as existed in favor of such lessor.
    2. AssiGNMENTS^-roftero sufficiently established. Held, that upon a motion to vacate a judgment entered by confession the assignment of the lease which contained the power was sufficiently established from the fact that such lease was attached to the declaration, showed the assignment on the back thereof and was read in evidence upon the hearing of such motion.
    3. Pbesumptions—what, aid judgments of courts of record. All presumptions aid and come to the support of judgments entered in open court by courts of record.
    4. Conveyances—character of lease. -A lease is not a deed poll but an indenture signed by both parties.
    5. Landlobd and tenant—estoppel to dispute title. A tenant cannot dispute his landlord’s title.
    6. Landlobd and tenant—what not eviction. The fact that after a lease of an apartment in a flat building is executed and possession taken thereunder by the lessee, persons in another portion of such building become stricken with small-pox, is no defense to an action by the lessor to recover rent, in the absence of a covenant in the lease against infectious diseases.
    7. Judgments—character of motion to set aside, entered by confession. A motion to set aside a judgment by confession rendered in open court in term time, appeals to the equitable jurisdiction of the court and will not be granted except for equitable reasons.
    Judgment by confession. Appeal from the Superior Court of Cook county; the Hon. Alonzo K. Vtokebs, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 4, 1909.
    Statement by the Court. March 28, 1905, a lease was executed by! ‘ Eobert P. Walker, agent, ’ ’ to Samuel A. Newman, the appellant, of the flat on the second floor of the building known as number 4402 Prairie avenue, in the city of Chicago, for the term from May 1, 1905, until April 30, 1907, reserving, as rent for the same, the sum of $1,440 per annum, payable in monthly installments of $60 each, in advance, on the first day of every month of the term. The lease contained these provisions:
    “If default be made in the payment of the rent above reserved, or any installment or part thereon, as provided herein, thereupon and from time to time, as often as such default shall be made, it shall be lawful for, and the party of the second part hereby authorizes any attorney of any court of record to appear in the name, place and stead of said party of the second part, in any court of record, in term time or in vacation, to waive the service of process, and to confess a judgment in favor of said party of the first part, his heirs, executors, administrators and assigns, and against the party of the second part, for the amount of the rent due and in default as aforesaid, with lawful interest thereon to the day of entry of such judgment, together with the cost of such proceeding, and five per cent, upon the amount of rent so due for plaintiff’s attorney’s fees; also to file a cognovit for the said amounts, with an agreement therein, waiving and releasing all errors which may intervene in any such proceeding and consenting to immediate execution upon such judgment. And said party of the second part hereby ratifies and confirms all that the said attorney may lawfully do by virtue hereof.” The signatures are as follows:
    “Bobekt P. Walkeb, Agent,
    Samuel A. Newman.”
    Newman entered into possession of the demised premises and paid the rent for the month of May, 1905, but thereafter ceased to pay rent. It appears from the evidence that appellee, who is the wife of Bobert P. Walker* is the owner of the demised premises and that he, in fact, acted as her agent in leasing the premises to appellant.
    August 1,1905, Bobert P. Walker, by writing of said date signed and sealed by him, assigned to appellee all his interest in the lease and in the rents therein reserved.

      August 4, 1905, such proceedings were had in the Superior Court, under and by virtue of the warrant of attorney in said lease, that judgment by. confession was recovered by appellee against appellant for the sum of $189, being the amount of rent due for the months of June, July and August, 1905, and $9 attorney’s fee. August 15, 1905, appellant, by his attorney, moved' the court to vacate and set aside the judgment and quash the execution. August 29, 1905, the motion was continued one week, and appears to have been continued from time to time thereafter until March 26, 1907, when the court entered an order denying appellant’s motion, from which order this appeal is.
    Appellant read in support of his motion his affidavit, the declaration, the lease which was attached to the declaration, and the cognovit. The appellant, in his affidavit, states, in substance, that he, with his family, consisting of his wife and a child sixteen years old, went into possession of the demised premises, and shortly thereafter discovered that the apartment below his was leased for and occupied as a boarding house, and that one of the inmates thereof had the small-pox, before learning which fact affiant had been exposed to and had contracted said disease, and affiant, by direction of the board of health of Chicago, was removed to the isolation hospital, where he was confined for several weeks. It was well known to said Robert P. Walker that the apartment next below said demised premises was occupied as a boarding house, and that there was small-pox there, when said Walker executed said lease to affiant. Defendant’s wife and child were, in pursuance of the advice of a physician, removed from the demised premises, and thereupon defendant’s brother, Adolph I. Newman, called on Robert P. Walker and told him that affiant’s family wanted to vacate and surrender said premises, and said Walker said they could do so, and the keys thereof were surrendered to said Walker, who accepted the same. Thereafter affiant heard nothing from said Walker about said flat till about July 1, 1905, when said Walker sued affiant before a justice of the peace, which suit was continued from time to time till August 2, 1905, when said Walker dismissed it. Affiant never entered into any lease with G-ertrude S. Walker, and never knew that she claimed to be or was the owner of the premises, and knew nothing of the judgment in question till execution was served on him.
    There were three cases, in all, of small-pox in said building, the first before affiant moved into the building.
    Appellee read, in opposition to the motion, the affidavits of Mayme Beder, Wm. J. Areola, Bobert P. Walker and Emil J. Weber.
    Emil J. Weber deposed that he was the janitor of the building, and that, May 3, 1903, he was notified by the health department of the city that an occupant of the first flat in the building had the small-pox, and had just been taken to the isolation hospital, and that was the first time affiant knew that any one in the building had the small-pox, and that the family of Samuel A. Newman vacated the flat occupied by them the last week of May, and Mrs. Newman gave the keys to affiant and told him to put a “for rent” sign in the front windows of the flat.
    Mayme Beder deposed that she was an employe in the office of Bobert P. Walker, and that, May 4, 1905, the janitor in charge of the building called up Walker’s office and stated that an occupant of the first flat in the building was ill with the small-pox, which was the first time affiant knew that any one in the building was ill of said disease.
    Wm. J. Areola’s affidavit corroborates that of Mayme Beder.
    Bobert P. Walker deposed that he was the authorized agent of appellee, and as such executed the lease, and that May 4,1905, was the first time that he, or any one in Ms office, knew that any one in the building, in question was sick with a contagious disease.
    The affiant Beder also deposed that about May 26, 1905, a person who said he was a brother of Samuel A. Newman, and Mrs. Newman, called at the office of Bobert P. Walker and said they intended to vacate the flat, and that it was not said to them, by any one in the office, that they would be allowed to surrender the flat, and that affiant told them that if they should vacate the flat, the rent would have to be paid, and that, at that time, Mr. Walker was not present. These statements are corroborated by the affidavit of Wm. J. Areola, and Mr.-Walker deposed that he never had any conversation with Adolph I. Newman concerning surrender of the leased premises, or that he ever consented to the same, and that he was absent from the city when said Adolph I. Newman called at his office.
    The court, of its own motion, called and examined as witnesses Bobert P. Walker and appellant, and Walker testified that he never saw or had any conversation with Adolph I. Newman.
    J. B. Langworthy, for appellant.
    Willard D. Norton, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The contentions of appellant’s counsel are, that the lease must be regarded as that of Bobert P. Walker, and that he only can sue on it; that it appearing from the evidence that appellee was the owner of the demised premises, and that Bobert P. Walker had no interest therein, appellant took nothing by the lease, and is not liable for the rent, and that there was smallpox in the first flat of the building before the execution of the lease.

Conceding that the word “Agent” next following the signature of Bobert P. Walker to the lease, is mere descriptio personae, and, therefore, that Mr. Walker must be regarded as the lessor, the evidence is that he assigned the lease to appellee, which being the case, appellee has the same remedy for the recovery of rent due by the terms of the lease which Mr. Walker would have had if there had been no assignment of the lease. Hurd’s Stats. 1905, chapter 80, section 14, p. 1298; Keeley B’g. Co. v. Mason, 102 Ill. App. 384.

To this appellant’s counsel objects that the assignment is not proven, that it was not read in evidence. It was necessary to file the warrant of attorney in order to obtain judgment by confession, which warrant is contained in the lease; therefore, it was necessary to file the lease, which was filed, attached to the declaration, and was read in evidence by appellant, on the motion to vacate the judgment. The assignment is written on the back of the lease, and the lease is in the record. The judgment was rendered in open court on a day of the August term 1905 of the court. All presumptions are in favor of the judgment, and it must be presumed that the assignment was considered by the court. If it is conceded, .as appellant’s counsel contends, that Bobert P. Walker was the lessor and landlord, and that suit could only be maintained by him in the absence of an assignment of the lease, the fact that the title to the demised premises was not in him, but in appellee, would be no defense to a suit by him for the rent. The lease in question is not a deed poll, but an indenture signed by both parties, and imposing obligations on both, and appellant entered into possession under it. In such case he cannot dispute his landlord’s title. Heisen v. Heisen, 145 Ill. 658, 665, et seq. See, also, Mackin v. Haven, 187 Ill. 480, 501, and Scott v. Rutherford, 92 U. S. 107. In the last case a lease was executed by persons in their own names, but describing themselves as agents, and not disclosing their principal. Held, that they were the lessors and that the lessee, who went into possession of the leased premises, could not dispute their title.

The great preponderance of the evidence is that there was no one afflicted with small-pox in the building in which the demised premises were, March 28, 1905, when the lease was executed, or at any time thereafter until after appellant took possession, which Emil J. Weber deposes was about April 28 or 29, 1905. Appellant retained possession till nearly the last of May, and there was no surrender of the premises. The fact that, after the lease was executed and appellant had taken possession, persons in the first or lower floor of the building, were stricken with small-pox, is no defense, in the absence of a covenant in the lease against infectious diseases.

In Edwards v. McLean, 122 N. Y. 302, a lease was executed March 28, 1885, for a term of four months from June 1, 1885, the reserved rent being $800. Between the time of the execution of the lease and June 1, 1885, a child of a tenant of the demised premises, whose term was to expire May 15, 1885, was stricken with scarlet fever, and the lessee refused to accept the lease and returned it to the lessor with notice of refusal. The action was for rent due by the terms of the lease. Held, that the lessor was entitled to recover, the court saying: “In the absence of an express covenant a lessor cannot be understood to undertake that the premises embraced in the lease will remain free from infectious diseases during the term. The disease may break out in the tenant’s family after he has taken possession, or it may spread upon the premises from neighboring residences. To hold that a tenant under such circumstances would be relieved from paying rent, would, in times of an epidemic of contagious disease in a populous city, nullify a majority of the leases. (Murray v. Albertson, 50 N. J. L. 167; Franklin v. Brown, 27 N. Y. S. R. 955; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245; Jaffe v. Harteau, 56 id. 398; Chadwick v. Woodward, 13 Abb. (N. C.), 441.)”

Aside from the claim in reference to small-pox, the defense is purely technical, and such defense to a judgment by confession cannot prevail. A motion to set aside a judgment by confession, rendered in open court, in term time, as was the judgment in question, appeals to the equitable jurisdiction of the court, and will not be granted, except for equitable reasons. Packer v. Roberts, 140 Ill. 9; Hier v. Kaufman, 134 ib. 215; Mumford v. Tolman, 157 ib. 258.

No meritorious defense is shown in support of this motion. Appellant owes the rent for which judgment was rendered, and appellee, the owner of the demised premises, is entitled to receive it, and no equitable reason why appellant should not pay it is shown by the record.

The order denying appellant’s motion to vacate the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Katherine Murphy, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,160.
    1. Verdict—when not disturbed. Where the evidence is conflicting a verdict will not be set aside as against the evidence unless clearly and manifestly so.
    2. Contributory negligence—when person injured upon sidewalk not guilty of. Held, that the evidence in this case did not show that the plaintiff, who was injured upon a sidewalk, was guilty of contributory negligence which barred recovery.
    3. New trial—when newly discovered evidence not ground for. Newly discovered evidence if merely impeaching or cumulative in character will not warrant a new trial. A showing of newly discovered evidence, likewise, is ineffective unless accompanied by evidence of diligence having been exercised in the attempt to secure such evidence prior to the trial.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 4, 1909.
    Edward J. Brundage and John R. Caverly, for appellant; Clyde A. Morrison and Edward C. Fitch, of counsel.
    George E. Gorman, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook county for $7,500, in favor of the plaintiff and appellee, Katherine Murphy, against the city of Chicago, defendant and appellant.

The judgment was obtained in a suit brought against the city for an accident occurring, as plaintiff alleged, through a defect in the sidewalk on the west side of Morgan street between Thirty-third place and Thirty-fourth place. The date of the accident was March 3, 1905. The negligence of the city was alleged to be that it had for a long period of time prior to said date suffered and permitted certain of the boards of said sidewalk to become and remain old, rotten, loose, insufficient, insecure and unsafe, and certain large and dangerous holes to be and remain in said sidewalk. The result was alleged in the plaintiff’s declaration to be that while she was walking on said sidewalk in the exercise of due care, she was “caused to stumble and trip and was thrown violently down to and upon and through the sidewalk,” to her great injury, including a miscarriage caused by the accident. The defendant pleaded the general issue and the cause was submitted to a jury, which, June 20, 1907, returned a verdict for $7,500 for the plaintiff, on which, after a motion for a new trial and a motion in arrest of judgment were denied by the court, the judgment herein appealed from was entered.

The motion for a new trial was supported by sundry affidavits, alleging evidence discovered after the verdict.

The assignments of error in this court cover many objections to the judgment, which are reduced in the brief and argument of the appellant to these- three grounds: The incredibility of the testimony of appellee’s witnesses, the rejection of which would leave the verdict nothing to stand upon; the evidence in the record of contributory negligence on the part of the plaintiff; and the newly discovered evidence, which should have caused the court to grant a new trial.

The first of these grounds we have carefully considered in an examination at length in the record of the testimony of appellee’s witnesses.

The credibility of witnesses is a matter peculiarly within the province of the jury to pass on. And we have often so held. Whether a witness is falsifying or telling the truth, the men who see and hear him and are selected and sworn for the very purpose of passing on his testimony, are better judges than we, who have only his words on the written page, and, indeed, unless we leave the abstract for the record, not all of those. To say that is not to ignore the fact that it is our duty, as well as our right, as has been expressly declared by the Supreme Court, to pass on the weight as well as on the tendency of evidence, and that as incidental thereto we are sometimes necessarily forced to reject altogether testimony which asserts things impossible or so improbable as to seem preposterous. But that we should not have ourselves, unless moved by something not appearing in the printed record, rendered as jurymen the verdict that the actual jury did render, is not a sufficient reason for our setting aside that verdict and the judgment based on it. There is nothing impossible in the story told by the plaintiff and her witnesses, either of the accident or the resultant injuries, incredible as the defendant’s- counsel seem to find it. Therefore we are not at liberty to disregard that evidence and ignore the fact that the jury believed it.

As the Supreme Court said in Shevalier v. Seager, 121 Ill. 569: “The truth is, the rule could not be otherwise, without invading the province of the jury to determine the credibility of witnesses, and to say which of them are to be believed in case of a conflict. To do this would be to dispense with the functions of a jury and thus destroy its utility altogether.” And see for the opinion of this court expressed in a similar case Chicago City Railway v. Bohnow, 108 Ill. App. 352.

The contributory negligence of the plaintiff which it is claimed that the evidence establishes,, is that with knowledge of the defective condition of the sidewalk on Morgan street, where the accident occurred, the plaintiff nevertheless, without necessity, walked over it in the darkness. As to this objection we are constrained to say that neither is the knowledge of the defective condition of the sidewalk brought home by the evidence to the plaintiff, nor is it proven that the route she took to reach her destination on Thirty-fifth street was an unusual or unnecessary one.

If our reading of the record is correct, defendant’s counsel is mistaken in his description of the movements of the plaintiff on the‘’night in question. He says: “She went out the back door of their house” (on Fisk street) “into the alley, south in the alley to Thirty-fourth street, west on Thirty-fourth street to the weét side of Morgan street and south on the west side of Morgan street to the place of accident.”

This is not by any means accurate. She went out of the back door of her house across the alley, in an easterly direction (Morgan street being east not west- of Fisk street), and then passed through a vacant lot (still going in an easterly direction), to the west side of Morgan street. She was going south on the sidewalk on the west side of Morgan street and had passed Thirty-fourth street, but had not reached Thirty-fourth place (the next street south of Thirty-fourth street) when the accident occurred. Has counsel investigated the question whether Fisk street extends, or in March, 1905, extended, south beyond the plaintiff’s house, so as to meet any east and west street whatever, or whether there was any street extending west of Morgan street, between Thirty-third street and Thirty-fourth place? There is certainly nothing in this record to show it, and nothing to indicate that the route Mrs. Murphy and Mrs. G-ramm took to reach the cars on the night in question was not the most natural and convenient one.

The jury were fully instructed as to the due care and the absence of negligence which would alone enable the plaintiff to recover. Their decision was not against the weight of the evidence, in our opinion.

As for the alleged newly discovered evidence, some of it is in the nature of impeaching the character of one of plaintiff’s witnesses, and some of it contradiction of the description of plaintiff’s physical condition before the accident, sworn to by other of her witnesses. Then there are entirely irrelevant allegations about the bad character of plaintiff’s brothers. The affidavits presented are not of the persons who, it is alleged, know of these things disadvantageous to the plaintiff’s case, but of “investigators” in the interest of the city.

No diligence in any attempt to secure the evidence before the trial, nor any sufficient reason why it could not have been obtained and presented at the trial, is shown.

How far this showing is from being a sufficient cause for a new trial in the opinion of this court, may be seen by a reference to the opinions of this court in Chicago City Railway Company v. Bohnow, 108 Ill. App. 346, and in McDonald v. the People, 123 Ill. App. 346.

We do not think the verdict, though large, is such that it should be disturbed on the ground of excessiveness.

The judgment of the Superior Court is therefore affirmed. Affirmed.


text:
    First National Bank of Crown Point, Indiana, Appellee, v. George F. Davis et al., Appellants.
    Gen. No. 14,167.
    1. Variances—what not, in foreclosure proceeding. The fact that a hill to foreclose describes a mortgage as made to secure a note of a specific amount while the mortgage introduced in evidence describes such note without specifying the amount thereof, does not establish a fatal variance where the note is identified by oral testimony as the one secured by the mortgage.
    2. Mortgages—what good consideration. A pre-existing debt is a good consideration for a conveyance by way of mortgage.
    3. Mortgages—effect of seal. A seal upon a mortgage imports a consideration.
    4. Mortgages—what good consideration. Forbearance of an overdue note, accompanied by a conditional extension, is a good consideration for a mortgage.
    5. Dower—what good consideration for release. No further consideration is required to make a release of dower and homestead by the wife valid than that which supports the main undertaking of the husband.
    6. Masters in chancery—what waives objection. A point not raised by objection before the master is thereafter barred to the complaining party upon hearing before the court and on review.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 4, 1909.
    George B. Chamberlin, for appellants; Edward J. Hill, of counsel.
    Charles L. Mahoney, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

So far as the appellants, George F. Davis and Lizzie M. Davis, his wife, are concerned, we see no merit whatever in this appeal. George F. Davis was, on February 17,1906, indebted to the First National Bank of Crown Point in the sum of $1,500 and some interest. This indebtedness was evidenced by a note dated Crown Point, Indiana, July 2, 1904, payable one year after date to the order of the First National Bank of Crown Point, with 6 per cent, interest from date, and attorney’s fees, signed by himself and one Henry Davis and one H. P. Davis. On that date of February 17, 1906, which was long after this note was due, he made a mortgage to secure this indebtedness on the west half of the northeast quarter and the east half of the northeast quarter and the east half of the northwest quarter, all in section 31, township 35, range 15. The mortgage ran to the First National Bank of Crown Point, and was expressed to be “to secure the payment of one certain promissory note executed by George F. Davis, Henry Davis and H. P. Davis, bearing date July 2, 1904, due one year after date, with interest at 6 per cent per annum and with attorney fees payable to the First National Bank of Crown Point, Indiana.” It provided that if default should be made in the payment of the promissory note described, the mortgage might be immediately foreclosed to pay the same. Lizzie M. Davis was named in the body of the mortgage as grantor and signed the mortgage deed. But George F. Davis had the title to the property; his wife, therefore, joined only in release of dower and homestead.

Nothing having been paid on the indebtedness on September 11, 1906, the First National Bank of Crown Point began a suit in chancery to foreclose the mortgage against George F. Davis and Lizzie M. Davis and William Severin, and the unknown owners or holders of a note dated April 24, 1906, for the sum of $1,500, payable to the order of William Severin on or before two years after date, and against Henry Binkenberger and the unknown owners or holders of a note dated April 27,1906, for $600, payable to the order of Henry Binkenberger on or before twelve months after date.

Severin and Binkenberger and the unknown holders of the notes described were made parties defendant, as alleged, because George F. Davis and Lizzie M. Davis, Ms wife, had on April 24, 1906, made and executed a mortgage to William Severin on the property before described, to secure the first of these described notes, and on April 27,1906, still another mortgage to Henry Binkenberger to secure the second of the described notes. Both said mortgages were alleged by the bill to be subsequent to the one it sought to foreclose.

The bill was first demurred to by George F. Davis and William Severin and answered by Lizzie M. Davis and Henry Binkenberger. The demurrer being overruled, the defendants George F. Davis and William Severin also answered the bill.

George F. Davis’s answer asserted that the mortgage, the foreclosure of which was asked, was given on the promise of the president of the plaintiff corporation to extend the time for the payment of the indebtedness secured by it until by the produce of the mortgaged farm he could realize the money with wMch to pay it, and “that in thus procuring said mortgage deed from this defendant and in proceeding to foreclose the same without giving to these defendants such extension of the time for the payment as fully agreed upon by its president, the said bank complainant is perpetrating a deliberate fraud upon these defendants; that under the circumstances aforesaid the said mortgage deed is not only entirely without consideration, but fraudulent and void as against these defendants, and should be canceled and set aside.”

Lizzie M. Davis’s answer asserted her ignorance as to the allegations of the bill, but averred that on the 17th day of February, A. D. 1906, her husband, George F. Davis, was the owner in fee simple of the property described in the mortgage in question, and that she, together with her husband, was occupying the same as their homestead; that “well knowing and fully understanding the fact that by the laws of the State of Indiana, as well as by the laws of the State of Illinois, the defendant was incompetent to become indebted to any one as surety for her husband for his prior existing debt, the complainant fraudulently and unwittingly, as well as wrongfully, procured from the defendant and her husband on said last named day their certain mortgage of that date, purporting to be for the purpose of securing the principal sum and interest”, as described in the bill, “andthe defendant therefore avers that by reason of the premises the said mortgage of date February 17, 1896, is as to the defendant, the said Lizzie M. Davis, absolutely null and void.”

Severin’s answer was that he admitted that the defendants George F. Davis and wife on the 24th day of April, 1906, made and executed to him, William Severin, their note for $1,500, as alleged in the bill of complaint, and secured the same by mortgage on the property described in the bill of complaint, but that all the other allegations of said bill of complaint relate wholly to matters unknown to the defendant, who says “that he has not sufficient knowledge to form a belief, and therefore denies the same, leaving the complainant if he can to make proof of the same.”

Binkenberger answered through another solicitor, William Vocke, who died pending the suit below. This original answer, like Severin’s, disclaims all knowledge of the allegations of the bill and demands strict proof of the same, except that it admits that George F. Davis and Lizzie M. Davis, his wife, did execute on April 27, 1906, the mortgage to Binkenberger conveying the premises in said bill of complaint described, to secure their note bearing said date for the sum of $600 due twelve months after date, with 6 per cent, interest per annum, as stated in said bill of complaint. It alleges that said indebtedness remains wholly unpaid, and that said mortgage was duly recorded and is a valid and subsisting lien on the premises therein described.

A replication having been filed to the answers, the cause was referred to a master in chancery,- who, after taking testimony, filed it with his report on May 24, 1907. He reported, among other things, that he found that the said mortgage sought to be foreclosed was not obtained by means of any fraudulent representations or acts; that the consideration for the giving of the said mortgage was good and sufficient; that $2,149.29 was due, secured by the said mortgage, and that the mortgaged premises should be'sold to pay the same; that on April 27, 1906, George F. Davis and Lizzie M. Davis, his wife, executed a trust deed on the said property to secure a note to Henry Binkenberger, • on which there was due $636.20, and that this trust deed was junior and subordinate to the lien of the indebtedness in favor of the First National Bank of Crown Point, and that on April 24,1906, George F. Davis and Lizzie M. Davis, his wife, executed a mortgage on the said property to secure a note to William Severin for $1,500, on which nothing had been paid, and that said mortgage was a lien on said premises junior to the lien of said First National Bank of Crown Point and senior to the lien in favor of the said Henry Binkenberger.

The evidence in behalf of Henry Binkenberger taken before the master consisted entirely of the note and trust deed for $600, running to him, which were, as the report of the testimony filed by the master says, offered and admitted in evidence and marked Binkenberger’s Exhibit 1 and Binkenberger’s Exhibit 2.

The evidence in behalf of Severin was the note and mortgage for $1,500 running to him, which the report says were offered and admitted in evidence as Severin’s Exhibit 1 and Severin’s Exhibit 2, with testimony that Severin was the legal holder of the same.

No one of these exhibits, however, appears in the transcript of the record in this court in connection with the master’s report or elsewhere, and the contents thereof and the facts about the record thereof do not appear.

Objections were filed to the master’s report in behalf of George F. Davis and Lizzie M. Davis and of Severin, but none in behalf of Binkenberger. Those filed were overruled by the master and by an order of court of May 24, 1907, were ordered to stand before the court as exceptions to the master’s report.

June 10, 1907, the court was informed of the death on May 13, 1907, of William Vocke, the solicitor for Henry Binkenberger, and allowed the substitution of Mr. Chamberlin, who had represented the other defendants.

June 11, 1907, Mr. Chamberlin, for Binkenberger, moved the court that inasmuch as, owing to the sickness and death of William Yocke, the proceedings before the master as to the objections to the report were had without the presence of Binkenberger or his solicitor, the cause be re-referred to the master to take further testimony. This motion was overruled, and thereupon, by leave of court and according to the terms of the order, without prejudice to proceedings already had in the cause, Binkenberger amended his answer “so as,” in the language of the order, “to conform the same to the proofs”. He added to the answer the allegations that “At the time of making of the said mortgage deed to him by the said defendant Davis, for the reason that the said document which is described in the bill of complaint herein, and to foreclose which this suit is brought, as the same then appeared of record, specified no amount of money for which the same was given, it constituted in fact and in law no encumbrance as against this defendant, and this defendant had no notice by said record or otherwise of the amount of the note specified in and purporting to be thereby secured”; and that “since making his said answer herein he had learned for the first time that the conditional agreement which appears on the back of the note purporting to be secured by said mortgage to said complaint, was placed thereon, but that as no mention of said agreement is made in said mortgage deed, as the same appears of record, he had no notice of the terms and conditions of the indebtedness or obligations purporting to be secured thereby, and that as against this defendant the making of the said mortgage deed and the recording of the same constitute no notice to this defendant of any encumbrance whatever against the premises therein described”. Thereupon, the certificate of evidence says, “By his counsel the said defendant Binkenberger then and there objected and excepted to the report of the master in chancery, wherein he finds substantially that the said mortgage deed or securities held by the said Binkenberger constitute a lien, if any, subsequent to the mortgage to foreclose which the suit was brought” and “objected and excepted to the entry of any decree herein as against him for the reasons assigned in and by his said motion and his amendment to his answer on file herein.”

The certificate of evidence further says: The court, “after argument by counsel for the respective parties, overruled the said objections and exceptions and entered the decree of foreclosure.”

The decree entered the same day, June 11, 1907, approves and confirms the master’s report and orders “that the objections and exceptions to the report of said master by the defendants George F. Davis, Lizzie M. Davis and George Severin’’ be overruled. It also dismisses a cross-bill of George F. Davis and Lizzie M. Davis (to cancel the complainant’s mortgage), in support of which no evidence had been offered, finds all the material allegations of the bill of complaint proved, that there is due the First National Bank of Crown Point $2,194.29, with interest, and that “the trust deeds securing the respective indebtedness to Henry Binkenberger and William. Severin are junior and subordinate to the lien of the indebtedness in favor of the complainants herein; that there is due to said Henry Binkenberger” $636.20, and to said Severin $1,500 and interest. In the usual terms of decrees of foreclosure, it orders the land sold to satisfy the decree, if not paid, in favor of the complainant, and orders any surplus to be brought into court to abide a further order.

It is from this decree the present appeal is taken.

It is urged in behalf of the appellant, George F. Davis, that the decree is erroneous because there was a variance between the bill and the proofs, in that the bill described a mortgage as made to secure a note of $1,500, while the mortgage introduced in evidence describes the note by its parties, date, time and rate, but omits the amount altogether. The fact is so, but it does not constitute a variance. The note was identified by the oral testimony as the one secured by the mortgage, and as between the parties at least this was sufficient.

Then it is said also in behalf of appellant George F. Davis, that the appellee did not alter its position or action when the mortgage was given, and that this renders the act or contract of Davis evidenced by the mortgage without consideration and unenforceable.

A pre-existing debt is a good consideration for a conveyance by way of mortgage. It has always been so held, both in Illinois and Indiana. McIntire v. Yates, 104 Ill. 491-501; Work v. Brayton, 5 Ind. 396.

The very seal indeed imports a consideration. Rendleman v. Rendleman, 156 Ill. 568. But in this case the evidence found by the master and the court sufficient to establish the fact, tended to show the consideration of a forbearance for at least 30 days of an over-due note, and a conditional extension, dependent on payment of interest during these 30 days. This was an alteration of position and full consideration in the legal sense, even had one other than the pre-existing debt been necessary.

Finally it is said the mortgage was procured by fraud. Of course this would be sufficient to nullify it, if it were proved, but we see no more proof of it than the master and the chancellor did, and we approve the finding in the report of the master, which the chancellor confirmed.

These objections to the decree are no more valid when urged in behalf of Lizzie M. Davis than when made in behalf of her husband.

There is no more evidence of fraud and, although the indebtedness secured was not hers, no further consideration was required to make her release of dower and homestead valid than that which existed and made her husband’s act effective. Her joining in the deed was merely in release and waiver, and did not convey a title. She had none, although made a warrantor. Sloninger v. Sloninger, 161 Ill. 270; Phillips v. City of Springfield, 39 Ill. 83. And if any consideration beyond her husband’s pre-existing indebtedness was necessary, it was supplied by the forbearance above noted extended to him.

The point made in favor of the subsequent mortgagees, Severin and Binkenberger, that the omission to state the amount of the indebtedness secured in the mortgage to the First National Bank of Crown Point, prevented the record of that mortgage from becoming constructive notice of any prior encumbrance to Severin and Binkenberger, and rendered erroneous that part of the decree which finds their mortgages junior and subordinate to the mortgage, of the complainant, might raise a very serious question (Bullock v. Battenhousen, 108 Ill. 28; (Gardner v. Cohn, 191 Ill. 553; Dunn v. Burke, 139 Ill. App. 13) if it had been made in time. But it was not raised by the objections before the master, which" were afterwards ordered to stand as exceptions. This was fatal to its effectiveness. Jewell v. Rock River Paper Co., 101 Ill. 57; Singer, Nimick & Co. v. Steele, 125 Ill. 426; Springer v. Kroeschell, 161 Ill. 358, pp. 370-1.

It is true that on the day the decree was entered, Binkenberger by his counsel sought and obtained permission from the court to amend his answer so as to state the same point made for him in the argument of appellants’ counsel here, but this permission was expressly conditioned on its being without prejudice to proceedings already had, among which was the order which made the objections made before the master to the master’s report, the exceptions to be passed on by the chancellor. We do not think the chancellor exceeded his discretionary authority in making this condition, nor that he exceeded it in later refusing, on the motion of Rinkenberger, to re-refer the cause to the master. It would appear from the language of said motion that when made the confirmation of the master’s report had already been made by the court. The request is that it be vacated and set aside. We find, however, no order in the transcript confirming the master’s report, except in the decree appealed from itself. But this was evidently practically contemporaneous with the denial of the motion for “vacation” and “re-reference”. We think that motion came too late, and that it would not have been in furtherance of justice to grant it. The recital in the certificate of evidence that thus practically contemporaneously with the entry of the decree, and after the permission to amend his answer, without prejudice to preceding pro: ceedings, had been availed of, Rinkenberger by his counsel “then and there objected and excepted to the report of said master in chancery, wherein he finds substantially that the said mortgage deed or securities held by the said Rinkenberger constitute a lien, if any, subsequent to the mortgage to foreclose which this suit was brought,” is immaterial. The authorities above cited show that an “objection and exception” taken at this stage and in this manner need not be considered.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    J. Byron Turck, Administrator, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,179.
    1. Verdict—when not excessive. Held,, that a verdict of $5,000 rendered in an action for death caused by wrongful act of the defendant was not excessive, where it appeared that the plaintiff’s intestate at the time of his death was an industrious and healthy man, willing and able by hard work to support his wife and children, his family being large, most of the children under age and several of them very young.
    2. Evidence—who cannot complain of unresponsive answer. That an answer containing evidence otherwise unobjectionable is not responsive to the question, is not an objection that a party not asking the question can avail himself of.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Axel F. Chytiíaus, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 4, 1909.
    Edward J. Brundage and Johh R. Caverly, for appellant; Edward C. Fitch, of counsel.
    Elmer & Cohen, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal by the city of Chicago from a judgment of the Superior Court against it, for $5,000, rendered on March 16, 1907, in favor of the plaintiff Turck as administrator of Charles Klein, deceased. The action is under the “Campbell Act,” so-called, for causing the death of plaintiff’s intestate by negligence. The negligence charged in the original and amended counts of the declaration in the cause was that of suffering and maintaining a defective sidewalk on the east side of Lock street near Bonaparte street, in the city of Chicago, after notice of its unsafe and dangerous condition, so that by means thereof Charles Klein fell and was so badly injured that he afterward died of the injuries. The various counts of the declaration alleged in due form also the survivorship of a widow of Klein and of three sons and five daughters, for whose benefit the administrator brought this suit under the statute.

The defendant pleaded the general issue. The cause was submitted to a jury, who found a verdict for $5,000 in favor of the plaintiff. A motion for a new trial and one in arrest of judgment were denied and the judgment herein appealed from followed. There is no contention that the sidewalk was not defective at the time of the accident (January 10, 1904), nor that it had not been so long enough to impute notice to the city. Nor is there any claim that the plaintiff’s intestate knew of this defective condition. It is also admitted that he fell into a hole in said sidewalk on the night in question, and that he was taken home in a patrol wagon and was laid up for a time.

But the controversy in the case arises on the question whether this accident, with its resultant injury, was the cause of the death of Klein, which occurred just over four months from the date of the accident from a hemorrhage in the brain resulting in paralysis. At the time of this apoplectic seizure Klein had been working for about two weeks in heavy manual labor (pulling ice at a packing plant).

On his death an inquest was held, and the coroner’s jury, by a verdict which was received in evidence in this case, found that the deceased “came to his death on the 12th day of May, A. D. 1904,” “from injuries received causing paralysis, from a fall on the sidewalk on Lock street south of Archer avenue, some time in February”, etc.

The contention of the city of Chicago is that there is no sufficient evidence that the fall on the sidewalk was the proximate cause of the intestate’s death— indeed, that the evidence proves that the apoplexy or brain hemorrhage was entirely independent of the fall. For these reasons it is insisted that the judgment should be reversed without a remandment of the cause. But if this claim of the appellant is not allowed, it is contended that erroneous rulings on evidence and on instructions were made, which entitle the defendant at least to a new trial. It is also claimed that the verdict is excessive and shows by its size that it is the result of passion and prejudice. It is argued that the sum of five thousand dollars was too great to award as the measure of the pecuniary loss to the widow and children for the death of an unskilled laborer forty-three years old, “ addicted to the excessive use of alcoholic beverages”. We think this last qualification unjustified by the evidence. An effort seems to have been made in the cross-examination of some of the plaintiff’s witnesses and in the direct examination of witnesses for the defendant, to establish this proposition; but it resulted in nothing more than showing the fact that the deceased was not a total abstinent, and that on festive occasions members of the Platt Deutsche Guild had seen him with his countrymen “feeling happy, like the rest of us”, “with a little more than he should have”. None of the witnesses were willing to stigmatize him as a drunkard or even an intemperate man, or given to “over drinking”. He seems from the evidence in the record to have been an industrious man and a healthy one, willing and able, before his injury, by hard work to support his wife and children. His family was large and most of the children under age, several of them very young. We do not think that the verdict was too large if the death was the result of the accident.

Whether the death was the result of the accident was a question left to the jury under the following instructions:

“ Instruction 4.. If you believe from a preponderance of the evidence that the defendant was negligent, as alleged, and that the deceased was injured as a proximate cause of such negligence, yet unless you also believe from a preponderance of the evidence that the death of the deceased was proximately caused by reason of such negligence, if any, you should find the defendant, City of Chicago, not guilty.”

“Instruction 11. The court instructs the jury with respect to ailments claimed by the plaintiff to have caused the death of Charles Klein, plaintiff’s deceased, the law requires of the plaintiff before he can recover that he shall show by a preponderance of the evidence that such ailments were the result of the alleged accident and caused Klein’s death.

“The jury have no right to guess or conjecture that the ailments which produced his death were the result of said accident. Before plaintiff can recover it must appear by a preponderance or greater weight of the evidence, that the injuries sustained, if any, by reason of a defecetive condition of the sidewalk were the direct and proximate cause of the death of plaintiff’s deceased.

“The .burden is not upon the defendant to show that the ailments which produced death arose from any other cause, and if the evidence is evenly balanced between the plaintiff and defendant on that question, the jury must find for the defendant, or if the jury believe that the ailments which produced death arose directlv and proximately from any other cause than that alleged, the plaintiff cannot recover in this case, and the jury must find the defendant, City of Chicago, not guilty.”

The fourth instruction, as above given, was exactly as it was tendered by the defendant, and instruction 11, although modified by the court from the original draft, substantially so. The modifications corrected it in patent errors, and are not complained of by defendant.

Under these instructions the jury showed by their verdict that from the evidence they found the fact to be that the injuries sustained by Klein by reason of the defective condition of the sidewalk were the direct and proximate cause of his death.

The appellant declares, through its counsel, that the only ground for this holding must have been “expert conjecture riding a fine-spun theory through the nebulous realm of speculation”. It insists that the testimony of the plaintiff was “speculation grayely offered as evidence”, “mere speculation based upon unwarranted assumptions”.

We concede the case to be a close one, and one in which as jurymen reasonable men might well have come to different conclusions, but it is a case in which a coroner’s jury on an ex parte hearing and a trial jury, after a thorough opportunity for investigation and deliberation, have passed on the question here involved adversely to the contention of the defendant and favorably to that of the plaintiff. It is a case too, in which the expert opinions, so lightly regarded by the defendant’s counsel, were given by practitioners shown to be of excellent standing and authority in their profession. Their testimony was met by that of medical experts of equal standing whose assistance in examining the opinions and theories of the plaintiff’s witnesses the defendant’s counsel may be presumed to have had. The fullest opportunity for cross-examination of all the experts was afforded and the opinions which the jury apparently adopted as their guides seem to us by no means destitute of weight.

It could serve no good purpose for us here to discuss the expert evidence or compare it. There was evidence tending to show actual, observable conditions from the time of the accident until the death, which we may briefly allude' to, however, as forming the basis of the opinions of the experts who testified for the plaintiff in answer to hypothetical questions. Klein, who was rather a heavy man, and had been a healthy and hardworking one, fell through a hole in the sidewalk on the night of January 10, 1904. The sidewalk was five and one-half feet above the ground. He was found so placed by the fall, “hanging in the hole,” that he had to be helped out by a man who was called to his assistance. He was, by the testimony of that man, apparently badly hurt. He was conscious but moaning with pain, and could not at first speak. A police ambulance was called. Two policemen came with it. They placed Klein in the ambulance and carried him to his home two miles away. He complained of his knee being hurt. The policemen carried him into the house and placed him in a chair and immediately went away. His wife put him to bed, but he did not sleep that night. One of his legs was considerably swollen and discolored. He seemed to be tired and suffering pain. During the next day and the two following he complained that it hurt him to walk. He could not lift his arm. When he spoke he seemed tongue-tied, so that he could not be well understood. In two or more days after the accident there developed difficulty in moving the fingers of his right hand. After two or three weeks had gone by he still was unable to sleep normally, and complained of continual headaches.

January 14th, four days after the accident, he was in a general dazed condition with symptoms of shock. He showed still thickness and difficulty of speech, and a chronically spasmodic condition of the right hand. The right knee was swollen and red; the knee cap and the outer upper side of the right thigh were discolored. There was swelling and redness of the muscles of the back from the shoulder-blade down across the lumbar regions on both sides. He complained of severe pain in the right knee; inability to move; pain in the right hip all along the thigh; pain in the back and sensitiveness to touch. His right elbow was swollen, inflamed and abraded.

A doctor called to attend him saw him at his home at slight intervals for a month (up to February 13, 1904), and the symptoms having then improved discontinued his visits, but saw him afterwards once or twice at his (the doctor’s) office, the last time more than two weeks, hut less than a month before April 23, 1904. A child having been born to Mrs. Klein in the meantime, and the older children not getting much from their work, Klein said that he had to go out to work, and went to seek a job. He had before that, about three weeks after the accident, attempted to shovel snow,, but came into the house and laid down, complaining of being unable to see anything and of cramps in his whole body. When in March he sought work he found it in an ice gang at a packing house, and worked pulling ice from March 30th to April 16th. But he then walked with difficulty, found difficulty in dressing without assistance, and .lifted his right foot peculiarly in his gait. He quit work on April 16th and from that time had to stay at home and, as his wife expresses it, had “cramps after that always,” “couldn’t do anything.” April 23rd the doctor who attended him before he went to work was called again, and then found him suffering from cerebral hemorrhage with paralysis of the left arm and leg. That condition had not existéd when the doctor saw him last, which was, as has been noted, more than two weeks but not more than a month before, but might have existed for any length of time elapsing since the doctor’s last observation of him. ,

At that time, April 23rd, Klein showed mental obscurity, thick, difficult speech, drawing of one side of the face and contraction of the other side, chronic spasms of the left arm and hand and left leg and foot, contracted pupils of the eyes and vomiting. He had also pains in the forehead and temples and sharp, throbbing pain in the left hand and arm and in the left leg and foot.

After the doctor’s second visit at this time, he sent Klein to the Cook county hospital, where he remained until May 6th, when he was brought back to his house. He then had the same symptoms, but was much worse. There was complete paralysis on the left side, of left arm and left leg, spasmodic contraction on one side of the face and relaxation of the other side, a .very red and bloated face, dilated pnpils, extreme restlessness with spasmodic contraction of the right arm and leg, and unintelligible speech. The case grew gradually worse until death on May 12th.

It was on this state of things, so far as they were observed by the physician who attended him after January 14th, that that physician gave his opinion that the injury which Klein received at the fall on January 10th was the cause of his death, that the traumatism caused inflammation of the blood vessels and a clot, which finally produced a rupture or an aneurism, the ultimate result of which was the cerebral hemorrhage.

It was on this state of things that Dr. Kiernan and Dr. Alexander, both physicians of high standing, in answer to hypothetical questions, gave their opinion to the same effect.

We do not think this was properly to be called mere conjecture, speculation or guessing. It was the legitimate expression of expert opinion. The jury were told the facts, and they were given the opinions. They had the right to make their conclusions, and they did so.

We do not mean that the evidence we have noted concerning the condition of Klein from the time of the accident to the time of his death was unquestioned by the defendant. Although we read Mrs. Klein’s testimony in the sense indicated, the defendant insists that nothing is known of Klein’s condition or actions between April 16th and April 23rd. It was a fair matter of argument to the jury, and it was doubtless argued to the jury, that immediately after the accident he seemed to complain of nothing but his knee, that the doctor who was called to him the next day observed no further injury, on a cursory examination, and was discharged and another physician almost immediately afterward summoned; that a considerable part of the evidence above noted was the interested testimony of the widow; that Klein reported himself to his sick benefit society, the Platt Deutsche Guild, as recovered from the effects of this accident on February 23rd, which was a week after his physician’s visits ceased for two months and more, and that with the exception of a little slower walk than some years before, when the foreman of Swift’s icing gang had known him, that foreman noticed nothing about him when he came to work in March, 1904, different from before. It is true, too, that expert medical men, also of high standing and great experience, testified in answer to hypothetical questions, that on the case presented in the questions they saw no connection between the accidental injuries and the death. But the value of the answers in enabling the jury to form an opinion on the question involved depended not only on the weight of the witnesses’ authority, but also on whether the hypothetical questions contained all that the evi-, dence fairly tended to show concerning Klein’s physical condition after the accident and down to the time of the death. It does not seem to us that they did, and the jury may have so considered and given much less weight to the defendant’s expert "witnesses on that account.

At all events the jury had the evidence before them from which they could properly draw legitimate and reasonable inferences, which, although falling short of absolute and mathematical certainty, would be something more than conjecture, speculation or guesswork. We must under the record in this case, we think, consider them to have done so, and allow their verdict to stand.

We find no error in the rulings on the questions, hypothetical or otherwise, to which objection was made by the defendant. That an answer containing evidence otherwise unobjectionable is not responsive to a question, is not an objection, we think, that the party not asking the question can avail himself of. We do not think that the plaintiff’s hypothetical questions, or any of them, contained in their recital the mere opinions as distinguished from the observations and positive statements of fact of other physicians, as did that animadverted on in Chicago v. France, 124 Ill. App. 648.

Nor do we think there is any just ground for complaint on the part of the defendant as to the instructions.

Certainly the record amply shows that the defendant disclaimed and waived any defense based on the absence of negligence—fully admitting that the negligence existed. If plaintiff’s instruction 1 was defective, therefore, it could not have been injuriously so. There is no error in plaintiff’s instructions 2, 3 or 5, as we view them. City of Chicago v. Major, 18 Ill. 349; North Chicago Street Railroad Co. v. Kaspers, 186 Ill. 250.

Defendant’s refused instruction 12 was fully covered by those given—Nos. 4 and 11—which we have above quoted.

The judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Holdom

text:
    William Wilcke, Defendant in Error, v. Charles Henrotin, as Receiver of Chicago Electric Traction Company, Plaintiff in Error.
    Gen. No. 14,123.
    1. Verdict—when not excessive. Held, that a verdict for $10,000 rendered in ah action for personal injuries is not excessive where the injuries consisted in the loss of a leg and a resulting reduction by two-thirds in earning power.
    2. Statute of Limitations—lohat not new cause of action. A new cause of action is not set up by an amendment which consists in changing the description of a defendant from “Charles Henrotin, receiver,” to “Charles Henrotin, as receiver of” etc.

      3. Amendments and jeofails—when discretion properly exercised. An amendment which permits a discontinuance as to a corporate defendant joined with its receiver in an action of tort is prqper and in furtherance of justice where it is apparent that such corporate defendant could not be charged in the action.
    4. Tokts—liability of tort-feasors. A cause of action against two or more tort-feasors may be prosecuted against them jointly, or either joint tort-feasor may he sued separately. Each one is liable to the aggrieved party for all damage resulting from the tort chargeable to all.
    5. Instructions—accuracy required where case is close upon the facts. 'Where the case upon the facts is close and a verdict either way would be permitted to stand on reviw, the instructions given must satisfy a rule of special accuracy.
    6. Instructions—when upon ordinary care appropriate, notwithstanding issue of intoxication. Held, that instructions upon this subject containing the following language have no reference to a condition of intoxication, and are proper:
    “By ordinary care.on the part of plaintiff the law means such a degree, of care under the circumstances and in the situation in which the plaintiff was placed, so far as it may be shown from the evidence, as an ordinarily prudent man would exercise under like circumstances and in the same situation;” and “that the degree of care that the plaintiff was required to exercise for his own safety at and before the time of the accident in question, was ordinary care, and if the jury believes from a preponderance of the evidence in this case that the plaintiff, at the time of and before the accident in question, exercised that degree of care for his own safety that an ordinarily prudent person would have exercised under the same circumstances and conditions which the evidence in this case shows surrounded the plaintiS at and before the time of the accident in question, then you should find that the plaintiff at and before the time of the accident in question was in the exercise of ordinary care for his own safety.”
    7. Instructions—estoppel to complain of absence of. A party is estopped to complain of the failure of the trial judge to instruct the jury upon a particular issue if such party has not asked instructions upon such subject.
    8. Contributory nesliqence—effect of intoxication. A person may be in the exercise of ordinary care for his own safety notwithstanding he is intoxicated.
    Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 4, 1909.
    Mayer, Meyer & Austrian, for plaintiff in error.

      Wing & Wing and Fred W. Bentley, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

William Wilcke, 'the plaintiff, recovered a judgment in the Circuit Court, which was entered on the verdict of a jury ag’ainst Charles Henrotin as Receiver of the Chicago Electric Traction Company, the defendant, for damages for personal injuries in the sum of ten thousand dollars. The defendant argues as reasons why the judgment should be reversed on this review, that the trial judge committed error in his instructions to the jury as to what constituted ordinary care on the part of plaintiff; in sustaining plaintiff’s demurrer to defendant’s plea of the statute of limitations to the amended declaration; variance between the averments of the declaration and the proof submitted in support of it; and that the damages awarded are excessive. We will decide these propositions in the reverse order in which they are stated.

As a result of the accident counted on in the declaration, plaintiff lost a leg, which disabled him for life, reducing by two-thirds his capacity to earn money. If entitled to recover at all, we cannot say the verdict is excessive. Defendant has urged no reasons at all in argument in support of this contention. Such failure, we assume, arises because its counsel, like this court, are unable to find anything in the record from which reasons can be logically assigned.

Plaintiff commenced this suit against defendant (who at the "time the injuries were received by plaintiff, as well as at the time the suit was commenced, was in the hands of Henrotin as Receiver), “Charles Henrotin, Receiver, and the Chicago Electric Traction Company,” and so averred against it in the several counts of the declaration, charging joint ownership and operation, as also joint negligence. Defendant did not file any plea of non-joint liability, but a plea of the general issue. On August 23, 1906, plaintiff procured leave to and did amend the praecipe, summons and additional counts of the declaration by inserting therein Charles Henrotin as Receiver of the Chicago Electric Traction Company in place of Charles Henrotin, Receiver, wherever the same occurred. This left the cause for trial under the additional count against Henrotin, Receiver, etc., and the Traction Company. November 17, 1906, Henrotin as Receiver and the Traction Company filed to the declaration as amended and to the additional counts as amended, several pleas, among which was one of the statute of limitations. To the latter plea plaintiff demurred, and his demurrer was sustained. It is quite • clear that the amendment did not state any new cause of action or bring into the cause any new party. At most it was but a better description of the real defendant. Penn. Co. v. Sloan, 125 Ill. 72. Defendant could not have been surprised or taken unawares on account of that •amendment, nor could the same in the remotest degree affect its proof or defense.

Plaintiff, at the close of the evidence, requested an instruction to direct the jury to find the Chicago Electric Traction Company not guilty, and to amend his declaration by discontinuing as to it, and by charging possession and operation of the road and the negligence averred to Charles Henrotin as Receiver of the Chicago Electric Traction Company and substituting defendant for defendants wherever the latter' designation occurred. Defendant’s objection to this proceeding was overruled, and we think correctly. The change then made in plaintiff’s pleading made it conform to the proofs then in the record. It was all along apparent that there could be no joint liability, for the reason affirmatively appearing in the declaration, that the Traction Company being operated by Henrotin as its Receiver, its corporate function, pending such receivership, was suspended. The merits of the defense therefore were in no wise minimized nor the rights of defendant affected to its detriment. The true situation was apparent at every step of the proceeding and the amendment allowed was in furtherance of right and justice. Such an amendment is authorized by section 23, chapter 110, R. S., and sections 6 and 7, R. S., being severally known as the Practice Act and the Statutes of Amendment and Jeofails. Thomas v. Fame Ins. Co., 108 Ill. 91.

We are satisfied that the rule announced in Postal Telegraph Company v. Likes, 124 Ill. App. 459, is equally applicable and controlling in this case, where the court say: “It is well settled law that in actions of tort the plaintiff may dismiss his suit as to one of two joint defendants at any time before final judgment. When the suit was dismissed as to the Railway Company, the declaration thereafter stood as if all allegations relating to that company had been stricken out. In other words, so far as concerns appellant such allegations were surplusage. If, disregarding these allegations, enough remained in the declaration to show a cause of ‘action against appellant, and the evidence is not at variance with the declaration as it then legally stood, the point is not well taken.” A cause of action against two or more tortfeasors may be prosecuted against them jointly, or either joint tort-feasor may be sued separately. Bach one is liable to the aggrieved party for all damage resulting from the tort chargeable to all. So in the case at bar, if two or more were chargeable with the tort alleged and all had been joined in the suit, plaintiff at any time before verdict could have discontinued against all but one and recovered against the one remaining defendant, and such course of proceeding would not necessarily work a variance between the proof and the averments of the declaration. This would follow on the authority of case supra, even had plaintiff failed to amend his declaration after discontinuing or moving for leave to amend.

Plaintiff, at the time of meeting with the accident, compensation for which the jury awarded damages on which the judgment in this case rests, was a passenger standing on the rear platform of an electric car, in the rear seat of which his wife was sitting. The day of the occurrence was Labor day., the annual holiday of the industrial classes. Plaintiff appears from the evidence to have been an ardent observer of the holiday, for the record discloses that he paraded with organized labor in Blue Island at seven in the morning, and that he then proceeded to Chicago, joining and marching in the Chicago parade until nearly one o’clock; then after watching the parade until about two o’clock, he started for Calumet Grove to join a “Labor Day picnic,” which he did, and after partaking of its cheer and joining in its festivities until about nine o’clock, he started for home and boarded the car in question at Blue Island. On rounding a sharp curve plaintiff either fell or was thrown from the car and injured. It is contended that at the time plaintiff boarded the car, and when he was injured, he was intoxicated, and there is some evidence in support and more in denial, of such contention. But, however the fact may be, as a fact it was a question for the jury, and this while not being seriously controverted, yet it is insisted that the court erred in its in-, structions to the jury as to the degree of care which the law required plaintiff to exercise before ,he was entitled to recover. It may he conceded that the nature of this case made accuracy in the instructions necessary to sustain a verdict for plaintiff. Traction Co. v. Hansen, 125 Ill. App. 153.

The instructions challenged as stating the law inaccurately on the question of plaintiff’s care, contain this language: “By ordinary care on the part of plaintiff the law means sucha degree of care under the circumstances and in the situation in which the plaintiff was placed, so far as it may he shown from the evidence, as an ordinarily prudent man would exercise under like circumstances and in the same situation;” and “that the degree of care that the "plaintiff was required to exercise for his own safety at and before the time of the accident in question, was ordinary care, and if the jury believe from a preponderance of the evidence in this case that the plaintiff, at the time of and before" the accident in question, exercised that degree of care for his own safety that an ordinarily prudent person would have exercised under the same circumstances and conditions which the evidence in this case shows surrounded the plaintiff at and before the time of the accident in question, then you should find that the plaintiff at and before the time of the accident in question was in the exercise of ordinary care for his own safety.”

The difficulty with defendant’s attitude toward these instructions lies in the assumption that they have reference to the intoxication of plaintiff. We are unable to find any clause or phrase in these instructions which in the remotest degree, or by any fair inference arising from the words used, can be construed to make any reference to the question of the intoxication of plaintiff. These instructions refer to the normal man. An ordinarily prudent man is not one who is intoxicated or so under the influence of intoxicants as to warp his judgment in caring for his own personal safety. The degree of care which an ordinarily prudent person would exercise “under the same circumstances and conditions” environing plaintiff in no sense has reference to a condition of intoxication. The conditions intended, from a reasonable construction of the words used, giving them their ordinary interpretation, it is clear, refers to physical conditions —the car itself, the manner of its propulsion, the position in which plaintiff stood upon the car without challenge, the speed of the ear, its jolting or swerving with or without violence sufficient to cause the accident to happen to a prudent person situate just as plaintiff was at the time. If it could be truthfully said that conditions and circumstances referred to in these instructions had in the slightest degree reference to the claimed intoxication of plaintiff at the time, they would then be subject to the criticism made by defendant’s counsel. Even had plaintiff not been strictly sober, that would not defeat a recovery if, notwithstanding such want of sobriety, he was still in the exercise of the ordinary care of a prudent person for his own safety at the time, and defendant was, on the contrary, guilty of the negligence charged. Both sides avoided any reference in instructions requested to the charged intoxication of plaintiff. Defendant covered every other theory of want of care inferable from the evidence, but studiously avoided any reference to the intoxication of plaintiff. The only instance in which the sobriety of plaintiff is referred to in the instructions, appears in one given at the request of defendant, which, after telling the jury that if they believed plaintiff was not in the exercise of ordinary care for his own safety, and that such failure “to so observe ordinary care contributed to the accident,” then it was not necessary for them to determine “whether plaintiff was or was not under the influence of liquor.” If defendant had desired to have the intoxication phase of the case submitted to the jury, its counsel should have requested an appropriate instruction. This they failed to do. They are estopped from now complaining of the non-presentation to the jury of the law concerning the effect on the right to recover of an intoxicated person. Defendant had given, on the request of its counsel, an instruction defining the degree of ordinary care to be exercised by a plaintiff before he can recover, substantially along the same lines and of the same legal import and effect as the instructions tendered by plaintiff, for the giving of which the judgment is sought to be reversed. It would seem to us an estoppel to now complain is of defendant’s own making. Had the instructions said to be erroneous been refused, the same definition of what is ordinary care in law would have still been before the jury from defendant’s own instructions.

Being unable to find reversible error, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    The Corn Exchange National Bank of Chicago, Appellant, v. John C. Curtiss et al., Appellees.
    Gen. No. 14,130.
    1. Suretyships—how contracts of construed. Contracts of guaranty must be construed as favorably to the creditor seeking their enforcement as other contracts in writing.
    2. Contracts—what words may be rejected as surplusage. Seld, that the words “to the extent of .................. dollars” in the contract of guaranty in question in this case, should be rejected as surplus-age.
    3. Statute oe Frauds—what contract to pay debt of another satisfies statute. A written guaranty of loans to be made in the future without specified limit as to amount, is unlimited as to amount, and satisfies the requirements of the Statute of Frauds.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded with directions.
    Opinion filed February 4, 1909.
    Judah, Willard, Wolf and Reichman, for appellant.
    Bayley & Webster, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The dispute between the parties to this appeal is based upon the following written guarantee, set forth in haec verba in the Bank’s declaration, viz:

“Chicago, Illinois, March 17, 1903.

For value received and for the purpose of enabling Curtiss, Williams Co. to obtain credit of the Corn Exchange National Bank of Chicago, we hereby guarantee the prompt payment at maturity or thereafter of any and all indebtedness, either as principal or endorser, now dué or which may hereafter become due, from said Curtiss, Williams Co., to the Corn Exchange National Bank of Chicago, to the extent of - dollars, with interest at the rate of seven per cent per annum from maturity until paid, and agree to pay all costs and expenses paid or incurred in collecting the same.

Notice of acceptance of this guarantee and of any and all indebtedness or liability accepted during its existence is hereby waived.

This guarantee shall remain in full force and binding upon the undersigned, until written notice of its discontinuance shall be received by the said bank, and any and all indebtedness or liability accepted before receiving notice of revocation shall have been fully paid.

John C. Cubtiss,

A. B. Williams.”

February 21, 1905, the Bank loaned Curtiss, Williams Co. $4,000, being before any notice of discontinuance was given by either Curtiss or Williams. This indebtedness remaining unpaid, this suit was brought to recover it from defendants predicated upon their liability to respond therefor in virtue of the foregoing guarantee. A number of pleas were filed to the declaration, which were afterwards eliminated from the case, and the cause is here upon appeal from the ruling of the trial court in overruling a demurrer to an additional plea interposed by the defendant, Williams, and upon plaintiff electing to stand by its demurrer it suffered a judgment of nil capiat. This plea is in bar of the action and avers “that said agreement by and between said plaintiff and said defendants was verbal and entire, and that a part only thereof was reduced to writing, to-wit: that which in said count is set forth in words and figures as the entire agreement was and is in fact but a part only of the agreement then and there made and entered into by and between the plaintiff and the defendants, and that in addition thereto, and as part of the entire agreement, it was further then and there agreed by and between said plaintiff and said defendants, that credit should be extended to said Curtiss, Williams Company by the said plaintiff to the extent only of a limited sum, to-wit: the sum of two thousand dollars.” That therefore the agreement “was not, nor is, nor was nor is any memorandum or note thereof in writing signed by this defendant, or any other person thereunto by this defendant authorized, according to the form of the statute, etc.”

The defendant Curtiss filed a plea of discharge in bankruptcy, and upon a hearing, judgment on that plea was entered in his favor, which leaves the cause on the issues made by the pleas of the defendant Williams and the demurrer thereto of plaintiff. The learned trial judge evidently grounded his decision on the legal theory that the failure to insert any amount in the blank space preceding the word “dollars,” made the guarantee agreement so incomplete as to require parol evidence to show the amount or extent of the guarantee in dollars actually agreed upon between the parties, and therefore made the contract obnoxious to the statute of frauds, as not being an agreement entirely in writing. Plaintiff contends, and we think correctly, that the contract of guarantee in the condition in which we find it, was one without limitation as to the amount for which the guarantors made themselves liable. This being our construction of the agreement, it follows that it was complete in itself and cannot be varied in any of its terms by parol proof. The difficulty in this case turns upon the rule of construction applicable to guarantee agreements of the nature of the one at bar. They are to be construed so as to make them effective and enforceable where it can be done without violence to the intent of the parties to be gathered within the language of the four corners of the writing. Not to make such a writing by construction nugatory, when the intent of the parties appearing from the whole instrument demonstrates, on the contrary, that it is an enforceable contract in accord with the intent clearly inferable from it. Contracts of guaranty must be construed as favorably to the creditor seeking their enforcement as other contracts in writing. Lurcher v. Deering, 204 Ill. 203. And it is a familiar rule of construction that a contract should be supported rather than defeated. Easton v. Mitchell, 21 Ill. App. 189. The ride is well stated in Taussig v. Reid, 145 Ill. 488, where the court say: “It cannot be said that the cases are entirely harmonious as to the principles which govern in the construction of this class of instruments. But the weight of authority seems to be in favor of construing them by rules at least as favorable to the creditor as those applied to other written contracts, notwithstanding the guarantor is, in a sense, to be regarded as a surety. In Mason v. Prichard, supra, it is held that the the words are to be taken as strongly against the party giving the guaranty as the sense of them will admit. The same general principle is held in Drummond v. Prestmond, 12 Wheat. 515; Douglass v. Reynolds, supra; Lawrence v. McCalmont, 2 How. 426; Bell v. Bruin, 1 Howard 69; Dobbins v. Bradley, 17 Wend. 422; Mayer v. Isaacs, 6 Mees. & Welsb. 605.” Mason v. Prichard, 12 East. 227.

. Taking the language of the guarantee agreement before us and construing it in the light of the circumstances surrounding and appearing from a reading of it, it is clear to us that it was intended to be a guaranty, the amount of which is without limit.

Defendant argues that the agreement of guaranty was evidently drawn upon a printed form prepared by the bank for general use, and therefore it must be presumed that the Bank intended the blank space to be used for the limitation of the liability of a guarantor in accord with the general custom of the Bank. But such a construction would nullify the contract and defeat the evident intent of the parties evidenced by executing it. Such is not the trend of authority on this subject, as conclusively demonstrated by the authorities already cited. By construction the instrument must be read by disregarding the words “to the extent of - dollars” as surplusage. Many authorities justify this course. Dodge v. St. John, 96 N. Y. 260; Williams v. Samuels, 100 Cal. 514; Stewart v. Jeffray, 7 Atl. (Pa.) 792.

The guarantors had it within their power to terminate their liability at any time, for the agreement provided that it should remain in full force and effect “until the written notice of its discontinuance shall be received by the bank.” No such notice was given. Neither is it contended that any notice seeking its termination was sent to the Bank at any time. We hold, as matter of law, that the guaranty agreement in suit was unlimited as to amount and terminable upon notice by the guarantors to the Bank of their desire to be relieved from further liability. That it is a contract enforceable at law.

The judgment of the Superior Court is reversed and the cause remanded, with directions to sustain the demurrer of plaintiff to the additional plea of defendant Williams, and for further proceedings conformable to the views expressed in this opinion.

Reversed and remanded with directions.


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    Henry Burbach, Appellee, v. P. F. McCarthy, Appellant.
    Gen. No. 14,141.
    Appeals and ebbobs—when finding of judge will he set aside and. final judgment entered. If a case has been tried before the court without a jury and the finding of the court upon the facts is manifestly contrary to the probative force of the evidence, such finding will be set aside on appeal and final judgment entered according to the effect of the evidence. **
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed February 4, 1909.
    M. Henry Guerin, for appellant.
    Maitland J. Merki, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This cause has been tried twice at nisi prius before two judges—first, Judge Pinckney, and second, Judge Mack. Each contestant alternately prevailed—a breathing example of the uncertainty of judicial processes.- Both trials were by the presiding judges, without a jury. Preceding these trials defendant was cast in a trial before a Cook county justice of the peace, from which he appealed to the Circuit Court. The judgment sought to be reversed on this review is for $160 and costs rendered against defendant. The cause having originated before a justice of the peace, there are no written pleadings. Plaintiff places his right to recover upon the proposition that he employed McCarthy, the defendant, to purchase for plaintiff, as his agent, a specified piece of real estate, which defendant did, and made a secret profit, contrary to Ms legal duty, wMch secret profit plaintiff had a legal right to recover as being money in contemplation of law received to plaintiff’s use. We quite agree with plaintiff’s counsel in his contention that there is but one question presented for decision, which arises out of the proofs in the record, and that question is not one of law, but of fact, viz: Was McCarthy the agent of Burbach when he purchased the property from James Conway? To tMs point counsel for contestants and the court are in harmony. We will recite some of the facts pertinent to support the conclusion to which we have arrived as such facts appear from the record before us. Defendant was a real' estate broker, conducting such business under the style of P. F. McCarthy & Co. at State and Thirtynmth streets, Chicago. The real estate sold to plaintiff was at 4400 Princeton avenue, Chicago, about three-fourths of a mile from defendant’s place of business.

The contract for the sale of 4400 Princeton avenue is in writing, dated February 3, 1906, and states the consideration, which is the same sum appearing as the consideration in the deed subsequently given in compliance with the terms of the contract. This contract of sale was signed James Conway by “P. F. McCarthy & Co., Agt.” and by plaintiff in person. The evidence shows that the title to the property originally stood in the name of the mother of James Conway, and that for convenience the title was subsequently conveyed to her son; that notwithstanding the change in the title, Mrs. Conway continued to manage the property, and that all the negotiations in relation to its sale were had by defendant with the mother and not with the son; that the contract of sale was made pursuant to negotiations conducted between defendant and an employe of his office and Mrs. Conway, who had listed the property with defendant for sale. James Conway, it is true, as he testifies, did not list the property with McCarthy, but it is equally true that Ms mother did so for Mm. Furthermore, James Conway ratified the actions of his mother by his letter to defendant two days thereafter, in which he says: “I hereby authorize you to sell the property known as 4400 Princeton avenue, and I agree to accept the sum of $3,800 net to me. You are to provide for your commissions and all other expenses including abstract above this figure mentioned.”

Whatever the ethics of this situation may be, as to the Conways, it certainly had no effect on any ethical or legal right of plaintiff. So far as plaintiff is concerned, there was nothing secret about the price, or any attempt, so far as we can discover from the evidence, to deceive plaintiff concerning the terms of purchase. When the sale was ripe for closing, defendant wrote plaintiff to bring two checks with which to pay the purchase price, one for $3,700, and the other for $325, which together make the sum total of the contract price. There is nothing in the letters introduced by plaintiff received from defendant, answering plaintiff’s inquiries about terms of sale of certain real estate, from which it can be inferred that defendant was the agent of plaintiff. It is not out of the ordinary business method for a party seeking to purchase real estate to apply to a real estate agent for location and terms of property on the market for sale; the custom is almost universal that the seller pays the selling agent’s commissions unless there is an understanding to the contrary. The correspondence, contract, deeds, and other exhibits .introduced by plaintiff lend strong corroboration to defendant’s insistence that he was the agent of Conway and not of plaintiff.

The finding of the trial court is so manifestly contrary to the probative force of the evidence that the judgment of the Circuit Court must be reversed. As the trial was by the court without the intervention of a jury, there is no reason for remanding the .cause for another trial, but we will do here what, in our opinion, the court below should have done, by entering a finding and judgment for the defendant.

The judgment of the Circuit Court is reversed with a finding for defendant and a direction that a judgment be entered thereon in his favor in this court.

Reversed cmd judgment here.


text:
    Frank W. Howes et al., Appellees, v. John C. Sprankle et al., Appellants.
    Gen. No. 14,166.
    1. Mechanic’s liens—who not agent of owner to receive sworn statement provided for by section 5. A trustee named in a trust deed securing the loan provided for the construction of the building upon the property upon which a lien is sought, while for some purposes the agent of both the mortgagee and the owner, is not an agent, unless specially so authorized, to receive the sworn statement provided for by section 5 of the Mechanic’s Lien Act.
    2. Mechanic’s liens—when subcontractor not entitled to lien. A subcontractor is not entitled to a lien (no money being due to the contractor) unless notice of his claim has been brought to the owner in some one of the ways specified by section 21 of the Mechanic’s Lien Act.
    Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed February 4, 1909.
    Frederick Mains, for appellants.
    Dunn & Hayes, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

Appellees filed their petition for a mechanic’s lien, under the Illinois statute concerning mechanics’ liens, upon property of appellant, John G. Sprankle, numbered 5012 Michigan avenue, Chicago. The appellant Moses R. Greenebaum is trustee in a trust deed given by Sprankle conveying the property as security for a loan of $9,000. The cause was referred to a master, who reported in favor of the lien being established and recommended that a decree to that effect be entered. The objections to the master’s report, after being overruled by him, were by leave of court allowed to stand as exceptions before the chancellor to the master’s report, which exceptions the chancellor overruled and entered a decree in accordance with the master’s recommendations, from which decree this appeal is prosecnted.

The lien sought to be established is that of a subcontractor.

C. B. Fockler contracted with Sprangle, the owner, to furnish the carpenter work and certain hardware for Sprankle’s building for $3,459. Fockler made a contract with appellees to furnish certain lumber to be used in the construction of Sprankle’s building to the amount of $900, and they claim that they in fact furnished such lumber to the value of $1,038.58, and that there remained due and unphid thereon $438.58; that the last delivery of material was made April 7, 1904, at which time the last payment became due; that before Fockler completed his contract, and on March 28, 1904, he abandoned it, and Sprankle, at his own cost, completed the Fockler contract, so that at the time appellees sought to enforce their lien no money was due Fockler upon his contract for any work done or material furnished by him thereunder; that Greenebaum, from money in his hands, proceeds of the $9,000 loan, made two payments to appellees of $300 each, one on January 12, 1904, and the other on February 9,1904; that for each of these payments Seator, the architect in charge of the work on the building, issued a certificate to Fockler, addressed to Sprankle, who endorsed thereon an order to G-reenebaum Sons for its payment.

The master reported that on January 11, 1904, Fockler made a sworn statement and delivered the same to Greenebaum, showing the amount then due appellees and the further sum of $300 to become due them for material to be furnished. The master further reports “that Sprankle did not have personal knowledge or notice of said sworn statement of January 11, 1904.”

In the view we take of this record, the right to sustain the decree establishing a lien rests upon the question as to whether Greenebaum was the agent of Sprankle to receive the sworn statement made by Fockler, the contractor, so that delivery to Greenebaum was a sufficient compliance with the statute and constructive notice to Sprankle, the owner, of its contents. The master having found that Sprankle did not have actual notice, appellees can only prevail upon the theory that through the agency of Greenebaum service upon him as agent by construction was tantamount to service upon Sprankle as principal.

There is no evidence, in this record that Greenebaum was the agent of Sprankle for the purpose of receiving for him sworn statements provided to be furnished the owner in section 5, chapter 52 B. S., title “Liens.” Greenebaum was trustee, and as such the agent of the lender as well as the borrower in paying out money on the loan. He was interested as such trustee in protecting the mortgaged property from liens accruing in the construction of the building on the mortgaged real estate, so that the lien of the mortgage for the amount loaned should not be impaired. Falker, a clerk in the Greenebaum bank, testified that contractor Fockler’s statement was taken and acknowledged before him; that it was taken before any payments were made and for the purpose of making payments to contractors from the money loaned. Greenebaum says the sworn statement was procured by his assistant before paying vonchers from the loan. Sprankle testifies that the amount of the loan was paid out on orders directed to Greenebaum Sons, “the same as if I were to issue an order or check on them;” that he knew nothing about the sworn statement of January 11, 1904, until shown to him at the Greenebaum bank about May 1, 1904, and that he did not know that appellees were furnishing lumber for his building until after Fockler abandoned work thereon under his contract March 28, 1904.

The proof fails to support the contention that Greenebaum was the agent of Sprankle to receive contractor Fockler’s sworn statement. It is not pretended by any witness testifying that this statement was received by Greenebaum otherwise than on his own account and for his own protection in paying out the money loaned. For the purpose of paying out the money Greenebaum was the trustee of both borrower and lender, but this was the extent and limit of his agency. So far, therefore, as Sprankle, the owner, is concerned, the sworn statement required by the statute was not made to him, or to any one for him authorized to receive it, so as to fasten notice upon him.

Appellees’ claim rests for its support on those sections" of the Lien Act supra applicable to subcontractors. Section 21 is controlling of their rights. In regard to the notice under discussion this section provides: “But where the contractor’s statement, made as provided in section five (5), shows the amount to be paid to the subcontractor, or party furnishing material, or the subcontractor’s statement, made pursuant to section twenty-one (21), shows the amount to become due for the material, or notice is given to the owner, as provided in sections twenty-four (24) and twenty-five (25) * * * then and in any of such cases such subcontractors * * * shall have a lien therefor to the extent of the amount named in such statements or notice.” Neither of these provisions having been complied with, the foundation for the right to maintain the action is absent, and consequently, regardless of all other questions, it is patent that appellees have failed to establish their right to a lien upon appellant Sprankle’s property, or their right to supersede the lien of the Greenehaum trust deed.

As it is our opinion, for reasons already assigned, that appellees cannot maintain their claim for a lien, the decree of the Superior Court is reversed without remanding.

Reversed.