text:
    Frances P. Hansel, Appellee, v. First National Bank of Mansfield, Appellant.
    1. Banks and banking—extent of authority of cashier. A cashier has authority to bind his bank, and entries made by him, even though relating to forged paper, charge such hank with notice of transactions being conducted by him on behalf of the hank.
    2. Trover—when lies to recover for conversion of forged securities. Trover lies to recover the face value of forged securities upon which the defendant has repeatedly paid interest, such defendant being thereby estopped to deny the existence of such securities.
    Trover. Appeal from the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 18, 1910.
    C. F. Mansfield, for appellant; Reed & Reed and F. M. Shonkwiler, of counsel.
    Herrick & Herrick, for appellee.
   Per Curiam.

During a period of several years prior to January 16, 1902, when the defendant, First National Bank of Mansfield, received its charter and commenced to do business, James C. Langley was successively the cashier of the Commercial Bank of Mansfield and the State Bank of Mansfield. Upon the organization of the defendant bank Langley became its. cashier and continued in that capacity until the fall of 1906, when he was found to be a defaulter to said bank in about the sum of $68,000. During his connection with said banks, Langley, by reason of his intimate acquaintance with the plaintiff, Frances P. Hansel, a former resident of Mansfield, acted as her agent in making loans, collecting the principal and interest thereon, paying taxes on certain real estate and transacting such of her financial affairs as were conducted at Mansfield. Shortly after the defalcation by Langley, as cashier of the defendant bank, became known, the plaintiff brought her action in trover against said bank to recover the value of certain notes payable to her order, which notes were alleged to have been wrongfully converted by said bank to its own use. The several notes involved are designated in the record, as follows: The Scott note for $1,000 bearing date April 26,1895; two Garber notes for $700 each bearing date December 27, 1900; two Campbell notes, one for' $650 bearing date March 27, 1901, and one for $400 dated May 6, 1900; the Swartz note bearing date July 2,1900, for $150; the Wright note bearing date May 20, 1901, for $125; seven Stauffer notes, one for $310.05, five for $100 each and one for $150, all bearing date April 15, 1896; and the Clemens note bearing date August 18,1899, for $400. The cause was tried by the court, without a jury, and resulted in a finding and judgment against the defendant for $5,139.94, from which judgment the defendant prosecutes this appeal.

The amount of the judgment is predicated upon the finding of the court incorporated in the record, as follows :

“Hansel vs. Bank.

Interest computed at the rate of 5% on principal of notes.

Due

Note Principal Interest 6-22-08

H. B. Scott, et al.......$1,000.00 $213.86 $1,213.86'

John Garber, et al...... 1,400.00 299.43 1,699.43

Thos. Campbell, et al... 650.00 136.66 786.66

Thos. Campbell, et al.

$400.00

Paid .... 222.00

Balance ... 178.00 36.46 214.46

Elizabeth Wright, et al.

125.00

25.00

Bal........ 100.00 37.73 137.73

Menno Stauffer '650.00

400.00

Bal........ 250.00 121.92 371.92

J. J. Swartz........... 150.00 59.50 209.50

Wm. Clemens, et al:

400.00

50.00

Bal........ 354.05 152.33 506.38

$4,082.05 $1,057.89 $5,139.94”

Prior to the organization of the defendant bank and occasionally thereafter, the correspondence with Langley relative to the business in hand was conducted by the plaintiff, who during the greater part of that time resided in . New York, and in almost every instance the envelopes containing the correspondence by plaintiff were addressed to “Mr. J. C. Langley,” who was referred to in the-letters as “Dear Jim.” The only letter appearing in the record written by Langley to the plaintiff, bears date May 25, 1905, is signed “J. C. Langley,” and addresses the plaintiff as “Dear Mrs. Hansel.” Commencing April 27, 1902, the correspondence relative to the business of the plaintiff was conducted with Langley on her behalf, by her husband, Charles Hansel, acting as her agent, and in almost every instance the correspondence by Hansel was directed to Langley as cashier, or vice-president of the defendant bank, and the correspondence by Langley was signed by him as cashier. On the date last named, Langley, in response to a request by Hansel for a statement of the plaintiff’s account, in his capacity as cashier of the defendant bank, wrote a letter to Hansel wherein he stated in part, as follows:

“I enclose herewith as complete a statement of account of Mrs. Hansel as we are able to make from our records; we commence this account under date of April 13, 1899, at which time Mrs. Hansel was either here or in Springfield and the account covers everything to date. I wrote to her in January relative to investing $1000.00 in Bank stock in the new First National Bank, certificate for which stock is herein enclosed, if for any reason Mrs. Hansel does not want the stock, if you will return it we will promptly remit you $1000.00 plus 7% interest since its date. I enclose herein a list of all notes on hand and also wish to acknowledge receipt of note of Manley & Barnhart, $200. and interest. Instructions to collect all notes noted and will collect and remit as fast as paid. If Mrs. Hansel would like to sell some of her paper would be glad to buy them, renewing them for shorter periods on our own forms.”

The. statement of account referred to in the letter was entitled “First National Bank in account with Frances P. Hansel,” and purported to set forth in detail numerous items of debit and credit commencing March 13, 1899, and concluding April 24, 1902. The items of credit included a draft for $1,300 which was enclosed in the letter and also a balance of $46.56 as due to the plaintiff. Accompanying the letter was a receipt for the Scott note of $1,000, noting payment of interest thereon to April 26, 1900, and five Stauffer notes of $100 each, noting payment of interest thereon to April 15, 1901, together with several other notes not involved in this proceeding. This receipt bears date April 27, 1902, and is signed “First National Bank of Mansfield, James G. Langley, Cashier.”

On May 23, 1902, Hansel wrote to Langley in his capacity as cashier of defendant bank relative to several over-due notes payable to the plaintiff which notes he stated the plaintiff desired Langley to collect, and further stated as follows:

“I also would be pleased to have an offer from you for the other outstanding paper which you are looking after as Mrs. Hansel desires to have all the funds in bonds so as to avoid any possibility of loss. Will you kindly advise how soon you can make the collections of the above over due notes and oblige.”

In reply to this letter, Langley, signing himself as cashier, wrote to Hansel on June 7, 1902, in part as follows:

“Tour letter received and in reply will say that we will buy Mrs. Hansel’s paper as fast as we can get into shape, i. e., renewed upon our own forms so it will pass the National Bank Examiner; if you will kindly send me the” (here are designated several notes not involved in this suit) “I will get these into shape at once as they all live close to us and will notify others. I think they may as well send J. W. Bate-man who lives in Iowa also—note $250, as it is small. We have a rule on our minute book to buy no paper out of our territory but I have some investors here who want some paper like this and can use beyond doubt—regarding the stocks, can give you $1,250 for the State Bank stock and $1,000 plus 5% from date for- the First National Bank of Mansfield stock—these I can use now and remit at once, the other paper soon as can get into shape, but if you will have Mrs. Hansel endorse the other paper to me, or to the Bank or better yet, have her endorse it in blank, just write her name on back of each note, I can, if. necessary remit for them as promtly and get them into shape as soon thereafter as we can. On second thought it would not do for me to carry past due paper at the bank nor would it do for me to in any way exceed the ten per cent limit of the National Banking law so I am doubtful if I could promptly use the notes but if- you send them I will remit and have some of our people carry them until I can renew them to the bank if makers desire renewals.”

On July 1, 1902, Langley, signing himself as cashier, wrote to Hansel reporting the collection of several of the notes mentioned in their prior correspondence and therewith enclosed a statement with draft for $2,507.18, being the amount of principal and interest collected on said notes.

On August 5, 1903, Langley, signing himself as cashier, wrote to Hansel in part, as follows:

“Regarding the loaning of additional funds would say, that we believe we could loan a few thousand and if agreeable with you would think it much better to make loans either in sums of $5000 even or $1000 even, without partial payment privileges. Partial payment privileges make it rather difficult to keep loans upon a profitable basis.

“In this connection would suggest that from a standpoint of business and compensation to our mutual interests as bankers and as stockholders that we make loans upon a basis- of from ½ to 1% commission to ourselves depending upon the rate obtained. In this case we could guarantee all loans made upon personal security but are by law prohibited from endorsing loans made upon real estate security. Of course we would attend to collection of interest and principal without cost and we can get usually 6% and in some cases or perhaps 7%.

“It seems that in sums of $500 and $1000 or even thousands it would be easier to keep records, etc., and when you reply you may advise us whether to remit for 'balance now on hand or leave at your credit and loan from the account. The balance now is a little over $500.

“We loan a good deal of money at 30, 60 and 90 days over the bank counter to customers but we rarely make loans for the bank for a longer period. Good applications for loans for 6 months and one year are often made and if we can agree on rates, think can favor you with some nice paper.

. “You may expect the statement of interest collection within a day or so.”

On the same day, Langley, as cashier, wrote to Hansel in part as follows:

“We hold a note and mortgage of Thomas Campbell face of same being $650. -When this paper was sent to ns it was understood by us that Mr. Campbell wished to pay it off—he says, however, that there is another note and mortgage, of another amount and that it was the one he desired to pay at present so you may send it to us and if paid we can arrange for release for the mortgage later on.”

On August 8, 1903, Langley, in his capacity as cashier, wrote to Hansel enclosing a statement of the account of plaintiff showing a balance due plaintiff of $505.31 on that date. This account included certain credits to plaintiff upon notes here involved as follows :

“Thomas Campbell on principal of. $400.00 note $100.00; interest on said note for one year $28.00; Menno Stauffer on account $400.00; John Garner interest one year on $700.00, $42.00; John Garner interest on $700.00, one year $42.00; H. B. Scott interest on $1000.00, $60.00; T. Campbell on $400.00 note $122.00.”

Under date of September 5, 1903, Langley, signing himself cashier, wrote to Hansel in'part, as follows:

“We find we have the following notes on hand to-wit:

H. B. & Olive M. Scott. $1,000. with 6% int. from April 26th, 1903.

John Garber and wife 700. with 6% int. from March 1st, 1903.

Same 700. with 6% int. from March 1st, 1903.

Thos. Campbell 650. with 7% int. from Mar. 17th, 1902.

W. H. McKee and wife- 275. with 7% int. from Dec. 11th, 1900.

$3,325.”

And under date of December 4, 1903, Langley, writing in the same capacity, enclosed a statement to Hansel, as follows:

“List of notes on hand Dec. 4, 1903.

Thomas Campbell $ 650.00 & Int.

Thomas Campbell 400.00 & Int. less credits $222.00

Garber, John et al. 700.00 & Int.

Garber, John 700.00 & Int.

W. S. & Angeline Hitchens 400.00 & Int. less credits.

Eliz. Wright et al. 125.00 & Int. less $25 credits

H. B. Scott et al. 1,000.00 & Int.

Menno Stauffer 150.00 & Int.

Menno Stauffer 100.00 & Int.

$4,325.00

Note The exact amount due from Menno Stauffer on Sept. 5th, 1903, was $310.05 as per letter of that date.”

On August 22, 1904, Hansel wrote to Langley as follows:

“ J. O. Langley, Cashier,

First National Bank,

Mansfield, III.

Dear Sir:—

On July 28th I directed a letter to you, carbon of which I enclose because I have just discovered that it was sent to Mansfield, Ohio.

I have not heard from you for some time and would be pleased to have you give me a prompt answer to mine of July 28th.”

The carbon copy of the letter there referred to is, as follows:

“July 28, 1904.

J. C. Langley, Cashier,

First National Bank,

Mansfield, Ohio.

Dear Sir:—On April 20th, I sent you the note of J. J. Swartz, dated July 2, 1900, for $150 due April 15, 1904, with interest at 6%, and asked you to collect same if Mr. Swartz desired to pay it. I have not heard from you since and would be pleased to see either a draft on New York for $150 with interest to this date, or else receive a renewal of the note, and would appreciate your kind attention.

The note of Emma Killion for $300, interest to May first. Kindly send me check for this interest.

No interest has been paid on the note of Thomas Campbell for $650 since March 29, 1903. I will be pleased to hear from yon concerning this note.

The note of H. B. Scott for $1000. No interest has been paid on this since March 1, 1903.

Two notes of John Garber each for $700. No interest paid since March 1, 1903.

Will yon kindly send me a statement of the status of the notes in your hands and cash in bank, and very much oblige. ’ ’ .

In the course of subsequent correspondence with Hansel, Langley reported additional payments of interest on the Scott, Garber and Campbell notes, and as to the Clemens and Swartz notes the record discloses that Langley requested the same to be sent to him for collection, and that they were so sent by Hansel.

Undoubtedly the fact that a friendly, personal and family relation existing between the plaintiff and Langley was responsible in part in the first instance for the selection of Langley by the plaintiff as her business agent but it is fairly inferable from the record that that relation was also induced in part by the fact that Langley was the cashier of the Commercial Bank in which the plaintiff carried her account and that the plaintiff transferred her account to the State Bank and subsequently to the defendant bank by reason of the fact that Langley was successively the cashier of said banks. The record discloses that the several notes belonging to the plaintiff and not retained by her were kept in the defendant bank for collection, for the account of the plaintiff; that said notes were entered for collection on the books of defendant bank and that when payments of principal and interest were made upon said notes such payments were made at said bank and received by it in the usual course of business and entered upon the books of the bank to the credit "of the plaintiff. The correspondence relative to the notes in controversy was in the main carried on between Langley, in his capacity as cashier of the defendant hank, and Charles Hansel, as the agent of the plaintiff, and was of such character as to reasonably induce a belief in the mind of Charles Hansel, acting as the agent of the plaintiff, that he was dealing with the defendant bank through its accredited agent, Langley, in his official capacity as cashier.

The transactions here involved were within the ordinary scope of the business of the defendant bank and the entry of such transactions upon its books constituted notice to it of the extent and character of such transactions, if any such notice was necessary, in view of the fact that Langley was the cashier and general business manager of the bank. The fact that some of the entries in plaintiff’s account with the defendant bank were false and fictitious and contained items relating to forged paper cannot relieve the defendant bank from liability, because it is bound by the acts of its cashier in that respect. In Ryan v. Dunlap, 17 Ill. 40, it was said: ‘ ‘ The cashier is necessarily the general agent of the bank in dealing with customers in money, notes and bills—the receipt, deposit, transfer and payment of them. It is indispensable to the interests of the corporation, and necessary to the protection and security of the customers that hé should exercise these powers, and that his acts should bind his employers.”

We find that the trial court was fully warranted in finding that the transactions relating to the notes here involved were conducted by Langley for the plaintiff, in his official capacity as cashier of the defendant bank, and that the latter is liable to the plaintiff therefor.

It is urged that the court improperly refused to permit the defendant to show in what manner and by whom the business of the plaintiff in the loaning and collection of her money was transacted during the time that Langley was cashier of the State Bank of Mansfield and while the plaintiff carried her account in that bank. Defendant did not offer to prove any particular state of facts by the witnesses called by it and the record does not disclose with any particularity the evidence which is claimed to have been excluded. While in the first instance the general inquiry might with propriety have been permitted as tending to show the character of Langley’s agency at the time in question the error in sustaining the objection to such inquiry did not operate to the prejudice of the defendant because the full scope of such inquiry was covered by the subsequently admitted statement of the witnesses that during the time in question Langley looked after the loaning and collecting of plaintiff’s money.

It is insisted on behalf of defendant that this action in trover will not lie for the alleged conversion of the two so-called Garber notes for $700 each, because, it is claimed that said notes had no existence in fact. The record discloses some confusion with reference to the description of these notes, as they appear to have been designated in the correspondence as the “Garber” notes, the “Gamer” notes and the “Gardiner” notes. We are inclined to think that this apparent discrepancy in the designation of the notes is due merely to clerical errors or to the obscurity which frequently prevails in writing proper names. There can be no doubt under the evidence that $1,400 of the money of plaintiff was claimed to have been invested by Langley in two notes for $700 each purporting to be signed by John and Terecia Garber. As heretofore stated the defendant bank, by Langley its cashier, repeatedly represented to plaintiff that it had said notes in its possession, and also remitted to the plaintiff interest which it claimed to have collected on said notes, and it is therefore estopped from denying the existence of said notes, and that it had possession of the same.

The transaction relating to the Scott note here involved is somewhat complicated and a statement of the same would unduly extend this opinion. The reasons which operate to estop defendant from denying its liability on the Garber notes are also applicable to the Scott note.

The note of Elizabeth Wright for $125, the principal of which had been reduced to $100, when the note came into the possession of defendant bank, was thereafter fully paid to the defendant in installments, which payments appear not to have been remitted to the plaintiff.

It is claimed by defendant that several payments made upon some of the notes in controversy were applied by it in liquidation of two notes alleged to have been given by the plaintiff to the defendant, one note which on June 27, 1902, amounted to $2,507.22 principal and interest, and one note for $2,000 bearing date January 8, 1903, but the evidence justifies the conclusion that no such notes were given by the plaintiff to the defendant, and that they were improperly charged to her in what is designated by defendant as the correct statement of account of Frances P. Hansel.

The Campbell note for $650 was listed by defendant as being in its possession on December 4) 1903, and on September 10, 1904, and June 20," 1905, reports were made to the plaintiff of the collection of the annual accrued interest on said note. While the principal of the note appears to have been paid by the maker to the bank, the latter has not given the plaintiff credit therefor. Upon the Campbell note for $400, payments amounting to $222 upon the principal were accounted for to the plaintiff, but the balance of the principal amounting to $178, although received by the bank has not been accounted for to the plaintiff. The finding of the court as to the amounts due upon the Stauffer, Clemens and Swartz notes is based upon the same proof as to the possession of said notes by the defendant and the collection by it in whole or in part of the principal and interest due thereon, which it failed to account for to the plaintiff.

Numerous propositions of law and questions of fact were submitted to the trial court, and errors are assigned by the defendant upon the action of the court in holding certain propositions submitted by the plaintiff as being the law applicable to the case and in refusing certain propositions of law and questions of fact submitted on behalf of defendant. Some of the propositions of law submitted on behalf of plaintiff and marked “held” by the court are not wholly accurate and some of the questions of fact submitted on behalf of defendant and marked “held” by the court are inconsistent with the general finding, but in view of the application of the doctrine of estoppel as heretofore indicated in this opinion no finding as to the liability of the defendant, other than that arrived at by the trial court, could have been properly entered in the case and the judgment of the court on such finding must be affirmed.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of The State of Illinois, Defendant in Error, v. William Dressen, Plaintiff in Error.
    1. Pleading—effect of omission in indictment of phrase “then and there." Seld, in this case, that the omission of the phrase “then and there” .would not work a reversal.
    2. Dram-shops—when description in indictment sufficient. In an indictment charging the keeping of a saloon in anti-saloon territory the description of the place is sufficient where in form as follows: “The said place where the said intoxicating liquors were unlawfully sold, being then and there known and described as No. 1202 East Eldorado street, in the city of Decatur.”
    3. Dram-shops—what indictment need not allege. In an indictment charging the keeping of a saloon in anti-saloon territory, it is not essential that such indictment allege how and in what manner such territory became anti-saloon.

      4. Instructions—propriety of printing. The fact that an instruction is printed upon a regular printing press and not typewritten, is not material and will not reverse.
    5. Instructions—as to credibility of detectives. An instruction which seeks to discredit the evidence of professional detectives is bad if it invades the province of the jury.
    Prosecution for unlawful sale of intoxicating liquor. Error to the Circuit Court of Macon county; the Hon. W. C. Johns, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Whitley & Fitzgerald, for plaintiff in error.
    W. E. Redmon, for defendant in error.
   Per Curiam.

The plaintiff in error was convicted under an indictment charging him with selling intoxicating liquor and keeping a place where intoxicating liquor was sold, in the town of Decatur, which was therein alleged to be anti-saloon territory. He was found guilty of both offenses and fined $400 and ordered imprisoned in the county jail for forty days and until fine and costs were fully paid. The judgment further provided that the place of business conducted by him at 1202 East Eldorado street in the city of Decatur, he' shut up and abated by the defendant and by the sheriff of said county until the said defendant should give bond in the penal sum of $1,000 payable to the People of the State of Illinois, conditioned that he would not sell liquor contrary to law and would pay all fines, costs and damages assessed against him for any violation thereof.

It is first urged as error that the court erred in refusing to quash the indictment and to arrest the judgment, for the reason that the indictment did not contain the phrase “then and there” preceding such issuable fact. There is no merit in such contention. Bobel v. People, 173 Ill. 19.

It is also urged that the sixth count in the indictment, which charged that “the said place where the said intoxicating liquors were unlawfully sold, being then and there known and described as number 1202 East Eldorado street in the City of Decatur,” was defective, in that such description is insufficient. We think otherwise. Daxanbeklar v. People, 93 Ill. App. 553.

It is next contended that the first count is defective in that it contains no allegation as to how or in what manner the town of Decatur became anti-saloon territory. Such allegation is unnecessary. Rev. Stat., chap 43, par. 4.

It is further contended that the court erred in giving the tenth instruction offered by the People, and in refusing certain instructions offered by the defendant. While the clause complained of in the tenth instruction, when read alone, is susceptible of being so construed as to warrant the criticism made, when taken as a whole it could not possibly have misled the jury. Moreover, a number of instructions were given at the request of the defendant, which fully and clearly cover the subject of reasonable doubt and are as favorable to the defendant as could be properly given. The complaint that the instruction was printed upon a regular printing press and not typewritten, and thus made unduly prominent, is exceedingly captious. Featherstone v. People, 194 Ill. 325; Young v. People, 193 Ill. 236; Hagenow v. People, 188 Ill. 545.

Defendant’s refused instruction which seeks to discredit the evidence of professional detectives is so palpably bad as interfering with the province of the jury, that discussion of the same seems unnecessary.

It is claimed that the court improperly admitted in evidence a certified copy of an internal revenue certificate or stamp issued by the United States government to the “East End Exchange.” The error, if any, was harmless, in view of the fact that the defendant in his testimony admitted that such a stamp or certificate was issued to him. The town clerk’s record was properly admitted in evidence under the provisions of chapter 43, paragraph 31 of the Revised Statutes.

We do not think the judgment can properly be said to be excessive and erroneous as claimed by the defendant. The evidence establishes, beyond a reasonable doubt, that the defendant, after local option law became effective in the city of Decatur, knowingly continued to conduct the business of selling intoxicating liquors in open defiance of such law.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Puterbaugh

text:
    G. F. Marion Twidwell, Appellee, v. Jacob B. Smith et al., Appellants.
    1. Pleading—when demurrer to plea properly sustained. If a plea neither confesses nor denies nor traverses the declaration and pleads conclusions rather than facts, a demurrer thereto is properly-sustained.
    2. Attachment and garnishment—what breach of bond. If a writ issued be quashed for noncompliance with the statute, a breach of the attachment bond results regardless of whether a new attachment suit be started and prosecuted with effect.
    Action of debt. Appeal from the Circuit Court of McDonough county; the Hon. Robert J. Grier, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Andrew L. Hainline and Don P. Pennywitt, for appellant; Philip E. Elting, of counsel.
    Flack & Lawyer, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in debt upon a bond given by the defendant in an attachment proceeding in aid of a suit for trespass. The jury found the issues for the plaintiff and the debt to be $10,000, and assessed the plaintiff’s damages at the sum of $50.01. To reverse the judgment rendered on such verdict the defendants prosecute this appeal.

The bond in question is in the form prescribed by statute. The condition of the same, after reciting the prayer for an attachment in aid, at the suit of Jacob B. Smith against Marion Twidwell, provides that if the said Smith shall prosecute his suit with effect, or in case of failure therein shall well and truly pay all such costs in said suit and such damages as shall be awarded against the said Smith in any suit or suits which may hereafter be brought, for wrongfully suing out the said attachment, the obligation of the bond is to be void, etc. The breach of the bond alleged in the amended declaration is, in substance, that the said Smith did not prosecute his suit with effect, but that afterward in said suit it was considered and adjudged by the Circuit Court that said writ be and the same was then.and there quashed, and that said Twidwell have and recover his costs against said Smith, which costs were taxed at the sum of $500. It is then alleged that Twidwell, by reason of the-unlawful suing out of said writ, was obliged to pay large sums for his reasonable attorney’s fees in and about securing a dissolution of said writ, and for his reasonable traveling expenses, board and lodging, and time expended, in defending against and procuring the dissolution of said writ.

A general and special demurrer was interposed to the declaration and overruled. To the declaration the defendants filed, among others, their fourth plea, which sets out in detail the proceedings in the original action for trespass, including the attachment affidavit and writ and motion to quash the affidavit for alleged irregularities and insufficiencies in the affidavit, and the action of the court in quashing the same. It is then alleged that immediately after the affidavit was-quashed Smith, the plaintiff in that suit, caused a sufficient affidavit to be filed of which Twidwell, the defendant, had notice; that no motion or proceeding was ever taken by Twidwell to strike said second affidavit from the files; that a writ of attachment in aid was then and there issued in lieu of the writ quashed; that afterwards Twidwell entered his appearance in said trespass suit and abandoned his defense to said attachment in aid; that issue was joined on the pleas in the trespass suit, and a trial had, which resulted in a judgment for $500 and costs against Twidwell and in favor of the attaching plaintiff, which judgment and costs were fully paid prior to the commencement of the present suit; and that by reason thereof, the said Smith did prosecute his said suit with effect. A general and special demurrer was interposed to said plea, and sustained by the court, and such action of the court is urged as error.

We are of opinion that the demurrer was properly sustained, as the plea neither confessed and avoided nor traversed the declaration, and pleaded conclusions rather than facts. It appears from an inspection of the affidavit for attachment and the motion to quash set out in said plea, that the attemped service in the attachment proceedings was absolutely void, and that the court properly quashed the affidavit and dissolved the writ. The place of residence of the defendant was not given, nor was there an averment that upon diligent search and inquiry the place of residence could not be ascertained; neither was his last known place of residence given, nor was any publication notice ever mailed to him at any address whatever, The service was therefore clearly void, and not so through the error or neglect of the clerk of the court, who wa.s not furnished the necessary information for properly mailing said notice. The allegation in the plea that a sufficient attachment affidavit was filed, was merely the conclusion of the pleader, and contrary to the facts as they appear upon the face of the plea.

We hold that there was a breach of the bond when the writ was quashed. Had the plaintiff in the original suit then obtained leave to amend the affidavit for attachment, and then amended the same so as to malee it good and sufficient, and had the same proceedings followed as set out in the plea as having occurred after the filing of the original affidavit, it might be properly said that Smith did prosecute his suit with effect, and that that°condition of the bond was not broken. The filing of the new affidavit for attachment in aid and obtaining a new writ to issue thereunder, was in effect the commencement of a new proceeding in attachment, and constituted an abandonment of the original proceeding. To subject the property of the defendant to the jurisdiction of the' court without a compliance with the statute, would be to deprive him of a substantial right without due process of law. The condition in the attachment bond that Smith should prosecute his suit with effect, etc., referred to the attachment in aid and not to the principal action of trespass. The ultimate disposition of the original suit, or of the second attachment in aid thereof, based as it was upon a new affidavit, we regard as immaterial. Keith v. Henkleman, 173 Ill. 137; Dempster v. Lansingh, 234 Ill. 381.

It is further urged that the court erred in its rulings upon the admissibility of evidence as to the value of attorney’s fees. We shall not take the time nor space to discuss this question in detail. It will suffice to say that it was not necessary in order to recover attorney’s fees as damages in this proceeding, that there should have been a specific employment of an attorney or attorneys to quash the writ. The record discloses the nature and extent of the services rendered by appellee’s counsel in procuring a dissolution of the original writ. We are of opinion that the sum of $50 allowed for such services would he reasonable in any jurisdiction, and we would not be disposed to reverse the judgment even if there be error in the rulings of the court upon the evidence relative thereto.

The foregoing views render it unnecessary to determine the questions as to the propriety of the rulings of the court upon the instructions offered and refused. It will suffice to say that any error in that particular was not prejudicial.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Fred C. Spenler, Appellee, v. Tolliver Turley, Appellant.
    1. Evidence—when, as to liability for doctor’s bill' properly considered. Liability to physicians for services rendered is proper to be considered notwithstanding the reasonableness of the charges made was not established where no objections to the lack of such evidence was made in" the trial court.
    2. Trial—when remarles of court cannot be complained of Remarks by the trial court though prejudicial cannot ,be complained of if elicited by the improper conduct of the complaining counsel.
    3. Trespass—effect of plea of son assault demesne. By the plea of son assault demesne the defendant assumes the burden of proving not only that the plaintiff first assaulted him and that he, the defendant, acted in necessary self-defense, but also that in so defending himself he used no more force than was necessary.
    4. Instructions—ignoring issues. An instruction which directs a verdict for the defendant is properly refused if it ignores one. element necessary to such verdict.
    5. Assault and battery—when use of unnecessary force in self-defense justified. If a person is suddenly attacked the use of excessive force will not impose liability if he acted as a reasonably prudent man would act under like circumstances.
    Trespass. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Humphrey & Anderson and Blinn & Covey, for appellant.
    Beach & Trapp, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

In an action in trespass, appellee recovered a judgment against appellant for the sum of $450 and costs of suit. The declaration charges in substance that on October 24, 1908, the defendant assaulted the plaintiff with a knife, and cut, stabbed and seriously wounded him, by reason of which he became sick and disordered, suffered great pain and anguish, was unable to transact his affairs and business, and compelled to lay out divers sums of money in endeavoring to be cured of his wounds and sickness, and that said assault was wilful and malicious, by reason of which the defendant should be amerced in exemplary or punitive damages. The defendant pleaded the general issue and a special plea of son assault demesne to which the plaintiff replied de injuria sua.

The evidence shows that the defendant assaulted the plaintiff by stabbing him a number of times with a knife, whereby he was dangerously wounded, and that as a result of such injuries he suffered considerable pain, and has since been unable to work, and became liable to pay $285 for doctor’s and hospital bills and in employing a man to work in his place. The evidence adduced by the defendant shows that shortly prior to the assault the plaintiff had threatened to whip the defendant when he had a chance; that the plaintiff first assaulted him with what are known as “knacks,” and that he stabbed the plaintiff in necessary self-defense. The evidence is in close conflict upon this issue, but we are unable to say that the verdiet was clearly and manifestly against the weight of the evidence.

The plaintiff was permitted to show that he owed to the various doctors who attended him, the sum of $125. He failed to prove, however, that the amounts charged were the reasonable and usual charges for the services rendered. When the questions were asked, general objections were made to the questions and overruled. It is urged that in this the court erred. We see no error in the ruling of the court. If the defendant was liable the plaintiff had a right to recover the amount for which he had become liable to pay for necessary medical and surgical services and treatment. It is true that in addition thereto it was essential to recovery, that he show that such charges were the usual and reasonable charges for services of that nature. Upon his failure to follow up the evidence complained of by proof that the charges were usual and reasonable, it would have been the duty of the court, upon motion, to strike out the evideñee. Having failed to make such motion, the defendant cannot now complain that the evidence in question was permitted to remain in the record. Schmitt v. Kurrus, 234 Ill. 578.

It is urged that the court made improper remarks while ruling upon the admissibility of evidence, which were prejudicial to the defendant. We are inclined to indulge in the presumption that the remarks complained of were called out by the remarks and conduct of counsel. Moreover, we do not regard them as prejudicial.

It is urged that the court erred in refusing the first, second and third instructions offered by the defendant. The first told the jury, in substance, that if they believed that the plaintiff made the first assault, the burden was cast upon him to show by a preponderance of the evidence that the defendant used more force than a reasonably prudent man would have deemed necessary for his defense under similar circumstances. The instruction was properly refused. By the plea of son assault demesne the defendant assumed the burden of proving not only that the plaintiff first assaulted him and that he, the defendant, acted in necessary self-defense, but also that in so defending himself he used no more force than was necessary. Ayres v. Kelley, 11 Ill. 17; Gizler v. Witzel, 82 Ill. 322. The second refused instruction was defective in that while directing a verdict it omitted the essential hypothesis that the defendant used no more force than a reasonably prudent man would have used under similar circumstances. Furthermore, the instruction was misleading in that it unduly emphasized certain facts which were in dispute, and was argumentative.

The third refused instruction reads as follows:

“The court instructs the jury that if you believe from the evidence in this case that the plaintiff Spenler made the first assault upon defendant Turley by striking Turley over the head, in the dark, then in that case, even if you believe the defendant Turley used more force than was necessary at the time of such assault, to defend himself, still there can be no recovery in this case, if the jury believe from the evidence that the defendant Turley acted as a reasonably careful man would have acted under the same circumstances; and if you find that the defendant Turley did act in the case as a reasonably careful man, you should find for the defendant.”

It is the law that if the defendant was suddenly attacked at the time and under the circumstances testified to by him, and he acted as a reasonable and prudent man would have under like circumstances, he would be justified in so acting, although he used more force than was necessary to defend himself against such assault. This rule was not contained in nor covered by either of the given instructions, and defendant was thus deprived of the benefit thereof. The majority of the court are of opinion that it is not clear that the defendant was not prejudiced by the refusal of the last mentioned instruction.

We are therefore constrained to reverse the judgment of the Circuit Court and remand the cause for another trial.

Reversed and remanded.


text:
    J. W. Carnahan, Administrator, Appellee, v. City of Paris, Appellant.

      Damages—for changing grade of street. An action against a municipality lies for damages arising from changing the grade of a public street which results in injury to the means of ingress and egress.
    Action in case. Appeal from the Circuit Court of Edgar county; the Hon. W. B. Scholeield, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    F. C. Van Sellar, for appellant.
    Wilbur H. Hickman, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action for damages alleged to have been caused to the plaintiff’s property by reason of a change in the grade of Campbell street in the city of Paris, in front of the plaintiff’s premises. The trial in the Circuit Court resulted in a judgment in favor of the plaintiff for $160. It does not appear from the abstract of the record why the suit was brought by the plaintiff in a representative capacity.

The evidence shows that he was the owner of two lots fronting upon Campbell street,-upon which, within eight or ten feet of the street line, was located a dwelling house; that the natural grade of the street was such that the front of said property was practically on a level therewith, and that ready access was had to and from the premises; that the city contracted with a construction company for the widening, grading and improvement of Campbell street; that said construction company in grading such street, excavated in front of the plaintiff’s property to the depth of from three to five feet, thus rendering access to and from the same more difficult. Under this state of facts it is well settled that the plaintiff was entitled to recover any damages sustained by him by reason of the change in the grade of the street (City v. Spoor, 190 Ill. 340; I. C. R. R. Co. v. Trustees of Schools, 212 Ill. 406), and that such damages are the difference in the fair cash market value of the property immediately before the excavating was done and immediately thereafter. City v. Newman, 130 Ill. App. 6.

It is first complained that there was a failure to connect the city with the work by any proper evidence. It was shown by the evidence of one Hogue, a member of the contracting company who did the work, that the city authorized and paid for the excavation in question. It is also contended that the witnesses offered by the plaintiff were permitted to testify as to value without first qualifying. We think that the knowledge and experience of each of said witnesses was sufficient to warrant the court in permitting them to testify upon the issue. In determining the weight to be given to their testimony, the jury had a right to take into consideration the extent of their knowledge and experience. It is further contended that the damages allowed are. excessive. We are of opinion that while the evidence was somewhat conflicting, there was ample to warrant the amount of the verdict returned. Furthermore, the jury viewed the premises, and because of their opportunities for correctly estimating the relative benefits and damages, their findings upon such questions are entitled to great weight.

There is no substantial error in the record. The judgment is warranted by the law and the evidence, and is affirmed.

Affirmed.


text:
    Lulu Killough, Administratrix, Appellant, v. Chicago, Burlington & Quincy Railroad Company, Appellee.
    1. Instructions—when giving of peremptory erroneous. If there is evidence tending to prove the negligence charged in the declaration it is error to give a peremptory instruction.
    2. Instructions—effect of motion for peremptory. By interposing a motion for a peremptory instruction, the defendant admits, the truth of all opposing evidence -and all inferences which may be fairly and rationally drawn from it.
    3. Contributory negligence—right to rely upon observance of ordinances. A person about to pass over a railroad crossing is entitled to rely upon the observance of all ordinances regulating trains passing over such crossing.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Elting & Hainline and Curran & Curran, for appellant ; Don P. Pennywitt, of counsel.
    Tunnicliff & Gumbart, for appellee; J. A. Connell, of counsel.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by appellant as administratrix of the estate of Louisa Wallace, deceased, against appellee, to recover damages for the death of her said intestate, alleged to have been caused by the negligence of appellee. At the close of all the evidence the court directed the jury to return a verdict of not guilty. Judgment was rendered upon such verdict in bar of the action, to reverse which this appeal is prosecuted by the plaintiff.

The case was tried upon the first, second, third and fifth original, and the first, third and fifth additional counts of the declaration. The negligence charged in the first and second counts is the failure to ring the bell or sound the whistle of the engine, as required by the statute. The third count sets up that the public street and crossing in the city of Bushnell, where the injury occurred, were near and between the depot of the T. P. & W. Railroad Company and the defendant’s depot, and where passengers passed to and fro, to board the trains of the defendant and those of the said T. P. & W. Railroad Company, and that the said Louisa Wallace, with all due care and diligence, was walking in and upon the said street across the defendant’s said crossing, and then alleges that it was the defendant’s duty to so regulate the movements of its said engine and train at the said crossing with due regard to the safety of passengers obliged to cross its said railroad to reach its station there, but that its servants negligently operated the movement of the said engine and train up to, upon and across the said public street at the said crossing.

The fourth count alleges that the said depots were placed where passengers congregated to board trains, and the said crossing being where passengers passed to and fro to board defendant’s trains, and charges the same negligence as in the third count. The first and third additional counts allege the violation of certain ordinances of the city of Bushnell providing that no freight trains shall be propelled in, through or within the corporate limits at a greater rate of speed than six miles per hour, and that no locomotive engine should be propelled through or within said corporate limits without continually ringing the bell, etc. The fifth additional count charges that the defendant improperly drove its locomotive engine and train at a high and dangerous rate of speed at said crossing, and failed to keep a proper watch for persons about to cross over the same, or to give proper signals of their approach, and the neglect to stop or endeavor to stop said engine or train, so as to prevent injury' to the said Louisa Wallace upon said crossing. The amended second and fourth additional counts were held bad on demurrer and the plaintiff elected to abide by the same.

The evidence discloses the following facts: Plaintiff’s intestate, Mrs. Louisa Wallace, who was about seventy-five years of age, and quite deaf, was on the morning of August 14, 1909, returning from LaHarpe, Illinois, to her home in Abingdon, Illinois. She arrived in Bushnell on the east-bound T. P. & W. train which had close connection with the north-bound passenger train of the Quincy branch of appellee’s railroad. The passenger depot of the T. P. & W. railroad was situated on the north side of its track, and the depot platform for receiving passengers extended east to the west line of Main street in the city of Bushnell. Near the north side of the T. P. & W. depot was the main track of the Beardstown division of appellee’s railroad, which entered the northwest corporate limits of the city about a mile from appellee’s depot, from the northwest, and curving, crossed Main street at right angles, running east parallel with the T. P. & W. railroad and about fifty feet north therefrom, crossed the Quincy branch, about a block east from Main street. The passenger depot of appellee was located on the west side of the Quincy branch, running nearly north and south, at a point about forty feet north of where the St. Louis branch of appellee’s road crossed the track of the Quincy branch, and about three hundred feet from the T. P. & W. depot. A sidewalk ran northeasterly from the east end of the T. P. & W. platform along the west side of Main street, and crossed the St. Louis branch at said crossing, and continued up the street; about ten feet north of the crossing on the St. Louis branch, where the deceased was killed, a sidewalk joining the one running north from the T. P. & W. depot, ran east, parallel with the St. Louis branch, to its depot on the Quincy branch. There was a well-beaten path, which had been used for the past twenty years by the general public, which left the sidewalk going north about half way between the T. P. & W. platform and the St. Louis branch, and angled across Main street, intersecting the sidewalk running east leading to appellee’s depot, about twenty-seven feet from the crossing where the accident occurred, and crossed the St. Louis division at a point near the center of the street. The distance between the track of the T. P. & W. and appellee’s track was sixty feet.

West Main street was the only route provided for the traveling public between the depots of the T. P. & W. and appellee’s railroads. On the morning in question, the deceased alighted from the morning train of the T. P. & W. railroad, and walked down the depot platform to the sidewalk on Main street, until she reached the well-beaten path, and while she was passing along the same on her way to appellee’s depot, for the purpose of taking the Quincy branch to Abingdon, was struck by the engine of an east-bound freight train on the said St. Louis division, just as she was stepping off of the track, and received injuries from which she died that afternoon. There is evidence tending to show that her view of the train was obstructed up to a point fifteen feet from the right of way, and that at the time she was struck she was endeavoring to change some parcels she was carrying from one hand to the other.

Inasmuch as there is evidence tending to prove the negligence charged in the declaration, the trial court doubtless directed a verdict for the defendant under the belief that the evidence favorable to the plaintiff, together with all inferences which might fairly and rationally be drawn therefrom, did not fairly tend to prove that the deceased was in the exercise of due care and caution for her own safety at and immediately prior to the time she was struck by the train. By interposing the motion for a verdict in its favor, the defendant admitted the truth of all opposing evidence and all inferences which may be fairly and rationally drawn from it. The motion did not involve a determination of the weight of the evidence nor the credibility of the witnesses. Swiercz v. Illinois Steel Co., 231 Ill. 456; Pronskevitch v. Ry. Co., 232 Ill. 136; McCann v. Mayer, 232 Ill. 507; Langan v. Fire Escape Co., 233 Ill. 308; Waschow v. Kelly Coal Co., 245 Ill. 516. It is not the law that because the evidence so preponderates against the plaintiff that a verdict cannot stand when tested by a motion for new trial, a verdict should be directed in favor of defendant. Woodman v. Bank, 211 Ill. 578; Libby v. Cook, 222 Ill. 206. Upon a motion of this character the plaintiff was entitled to the benefit of all evidence favorable to her, whether produced by her or by the defendant. Math v. Ry. Co., 243 Ill. 114; Garrity v. Foresters, 243 Ill. 411. It is not necessary and we do not now determine whether or not under all the evidence in the case, a verdict in favor of the plaintiff upon the issue of contributory negligence, would have been manifestly against the weight of the evidence. We are, however, of opinion that under the rule stated there was sufficient evidence, which together with the inferences which may be fairly and reasonably drawn therefrom, to require the submission off the question, as to what a reasonable and prudent person would have done for his own safety under similar circumstances, to the jury for its determination.

The evidence discloses that immediately prior to the time the deceased attempted to pass over the crossing, two persons had done so and had gotten twenty feet beyond the track; that two other persons, accompanied by two children, had crossed immediately ahead of the deceased; that the well-beaten path shortened the distance to appellee’s depot some fifty feet; that the train which the deceased desired to take on the Quincy branch was due at the time of the accident; that a brakeman was stationed on the pilot of the engine of the freight train; that the servants of appellee in charge of the freight train knew that by crossing the path in question they would obstruct passengers following the customary route to the depot, and further that the train in question" was running at a rate of speed'prohibited by the ordinances of the city. Under these circumstances, we are not prepared to say that the actions of the deceased were negligent per se. She had a right, to assume that the train would not be run in violation of the ordinance, or so as to shut off passengers bound for appellee’s own depot. She also had the right to assume that the crew in charge of the train, knowing, as they did, the volume of travel over the crossing, would not attempt to drive the train over it while any number of people were using the same in hastening to catch one of appellee’s trains then due. We therefore hold that the court erred in directing a verdict of not guilty.

• The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    John D. Farris et al., Appellant, v. Claud C. Alfred et al., Appellees.

      Sales—when implied warranty does not arise. One selling an automobile to another intending to use it for a particular purpose does not impliedly warrant its fitness for such use.
    Assumpsit. Appeal from the Circuit Court of Coles county; the Hon. T. N. Cokes, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    J. H. Marshall, for appellants.
    James Vause, Jr., for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit upon a promissory note for $825 executed by appellees and payable to appellants. The trial resulted in a verdict for the defendants. The note was given in payment for an automobile purchased by appellee, Claud C. Alfred, from appellants. The declaration consisted of a special count on the note in question, to which the defendants filed a special plea alleging that the plaintiffs “warranted- said automobile to give good service on a rural mail route over which said Claud C. Alfred was then carrying United States mail, and that said automobile would give swifter and better service than a horse and buggy he had been using prior to the date of the sale, and further warranted that said automobile was and would be fit for the purpose of delivering United States mail on said rural route.” The plea then alleges a breach of such supposed warranty, and avers a return and delivery of the automobile to plaintiffs and that they had the same under their control and in their possession, by reason whereof the consideration upon which said note was made had wholly failed. A demurrer was interposed to said' plea, and overruled, whereupon the plaintiffs replied double, traversing the warranty, breach and return of the automobile to the plaintiffs as alleged in the plea.

The cause was defended in the court below upon the theory that the plaintiffs warranted the automobile; that there was a breach of warranty; that the defendants therefore had the right to rescind the contract; that an offer to return the automobile was equivalent to a delivery, and that an acceptance of such return was unnecessary, and instructions were given at their request upon that theory. Counsel for appellees concedes in argument in this court, that the plea was demurrable and that the jury was improperly instructed, but now insists in this court that the evidence established the averments of the plea that the defendant, Claud Alfred, returned the automobile to the plaintiffs, and that at the time of the trial they had it in their possession and under their control; that a valid defense to the note was thus presented, and that the judgment should be affirmed.

After a careful examination of the record we are convinced that the present verdict and judgment should not be permitted to stand. The proof does not tend to show any warranty as alleged in the plea. The statements relied upon as such were but mere expressions of opinion upon matters of which Claud Alfred was at least as able to form a correct conclusion as were the plaintiffs. The plaintiffs had no special knowledge of the requirements of the mail service, while Alfred was familiar therewith. They were not material facts, and it is apparent that he bought the machine relying upon his own judgment. The rule invoked by the defense that because the plaintiffs knew that Alfred bought the machine for a particular purpose, they thereby impliedly warranted it to be suitable for the same, is inapplicable in this case. The rule applies only to manufacturers. Fuchs v. Kitttredge, 242 Ill. 88.

Neither does the evidence show that the machine was returned to the plaintiffs by Claud Alfred and that they accepted the same. The evidence shows that the machine was purchased on August 7th, and was used by Alfred upon his mail route until November 7th, at which time he told Barger that he did not want the machine because it would not go; that Barger then went to the shed where Alfred kept the machine, and after cleaning certain portions of it, offered to go with him on his route and demonstrate that the machine would make the same route as well as it did the first time, but that Alfred refused to have anything more to do with it, and that Barger immediately ran it back and left it in the shed in which Alfred had kept it, where it still remained at the time of the trial. Furthermore, the theory of the defendants that if there was a breach of warranty, Alfred had a right to rescind the sale and tender the machine back to the plaintiffs, is untenable. In a case of breach of warranty under an executed contract, in the absence of fraud, the vendee has no right to rescind the contract and return the goods. Crabtree v. Kile, 21 Ill. 180; Doane v. Dunham, 65 Ill. 512; Owens v. Sturges, 67 Ill. 366; Skinner v. Mulligan, 56 Ill. App. 47; Mayer v. Auto. Ex., 125 Ill. App. 648; Tokheim v. Stoyles, 142 Ill. App. 201. His remedy is a suit for breach of warranty or the right of recoupment in a suit for the purchase price.

The judgment will be reversed and the cause remanded for further proceedings not inconsistent with the foregoing views.

Reversed and remanded.


text:
    Charles J. Off, Appellant, v. Veda C. Murphey, Appellee.

      Contracts—when parol evidence incompetent. Parol evidence is not competent to vary, add to or contradict the terms of a written contract.
    Assumpsit. Appeal from the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    George J. Jochem, for appellant.
    Chiperfield & Chiperfield, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellant against appellee. A trial was had upon the issue joined and judgment rendered against the plaintiff in bar of action and for costs. The third count of the declaration, upon which the case was tried, avers that on July 16, 1904, the defendant made her certain agreement in writing with one P. W. Meehan, which said agreement is in words and figures following, to wit:

“For and in consideration of the selling and delivering to me upon a bill of sale, by W. P. Meehan, (1) of all of the stock of groceries, provisions, flour, boots, shoes and all other goods and merchandise of every kind and character in the building on the west side of the Public Square in Cuba, Illinois, and known as the P. W. Meehan Store Building, being the same stock of goods lately sold and delivered by bill of sale from E. H. Murphey & Co. to P. W. Meehan and (2) of the selling and setting over to me by bill of sale, of the books and book accounts lately due and owing to the said E. H. Murphey & Co., and sold and delivered by a bill of sale from E. H. Murphey & Co. to P. W. Meehan, on the 16th day of July, 1904, (3) I hereby assume the payment of all bills due and owing to the following creditors of the said E. H. Murphey & Co., to wit: Charles J. Off & Co., (and nine other creditors specified in said agreement).

“In witness whereof I have subscribed my name hereto this 20th day of July, 1904.

Veda C. Murphey [Seal].” |

The said count further avers that by said agreement, the defendant bound herself to pay certain debts of the said E. H. Murphey & Co., by reason of the conveyance of the aforesaid goods, and that the debt to plaintiff was and is one of the debts referred to and included in said agreement; that the said defendant had before the commencement of this suit, acquired a good and complete title to the goods aforesaid, and that by reason of the premises the defendant became liable to pay to the plaintiff the said sum in said contract mentioned when she should be thereunto after requested, etc.

To the declaration the defendant pleaded the general issue and a special plea averring that the said agreement in the declaration mentioned was without consideration, because at the time of the execution thereof the said Meehan had no interest of any kind in the stock of goods in question, which were then and had been for a long space of time, the sole property of Murphey & Co.; that said alleged bill of sale in the said agreement mentioned from Murphey & Co, to Meehan, was without consideration; that the said Meehan was not liable to pay any of the debts of Murphey & Co. mentioned in said agreement; that by reason thereof he did not thereby have or obtain any interest in said stock such as to enable him to transfer the same to the defendant; that the original transfer thereof by Meehan to the defendant was without consideration and that the said stock remained the sole property of Murphey & Co., and not that of the defendant.

The evidence discloses that on July 16, 1904, E. H. Murphey was engaged in the general merchandise business at Cuba, Illinois, under the name and style of E. H. Murphey & Co., and that Veda C. Murphey, his wife, the appellee herein, was engaged in the practice of medicine in the same city. On the day in question Murphey was financially involved, being indebted to various persons, among others the appellant, and one Thompson, representing the appellant and other Peoria creditors, with full authority to act, went to Cuba and informed Mrs. Murphey of the financial condition of her husband, of which she was not then aware, and procured her to execute the agreement hereinbefore set forth. Thereafter the present suit was instituted for the recovery of the amount due appellants from Murphey & Co. at the time of the execution of said agreement.

Some evidence was introduced as to what was said by Thompson and Mrs. Murphey prior to the time the contract was signed. Such evidence was not competent to vary, add to or contradict the terms of the contract, which was written, and imports on its face to be a complete expression of the whole agreement between the parties. Schneider v. Sulzer, 212 Ill. 87. The contract is the basis of the action and its terms must govern the right of recovery in the present suit. We are of the opinion that the judgment of the Circuit Court should be affirmed.

The evidence discloses that the appellee did not at the time of the signing of the agreement, nor at any time thereafter, receive anything of value on account thereof; that she never thereafter participated in the management of the business in any way; that any goods shipped by appellant in her name, were shipped without her consent and were not received by her. Meehan testified that no transfer of the goods or accounts was ever made by him to appellee; that in July, 1904, he owned no interest in the stock of merchandise that Murphey had owned; that while he had a bill of sale for it for a short time, he paid nothing for the stock; that the bill of sale was returned by him to Murphey four days after he received it; that he never took possession of the store, and that he had no knowledge of the execution of the contract in question.

It is urged and argued by appellant that the evidence shows that appellee promised to pay appellant the debt due to him from her husband, upon consideration that he forbear bringing suit against him; that by such forbearance appellant was delayed and Murphey was benefited, thereby constituting a sufficient consideration for the promise of appellee to pay the debt. Some extraneous parol evidence was admitted tending to show such state of facts, but we regard it as far from sufficient to establish an agreement for forbearance as claimed. It was, however, as we have said, wholly incompetent, and it therefore was not error for the court to refuse to give the sixth and seventh instructions offered by plaintiff upon the question of forbearance. This view justifies the rulings of the court on the other instructions of which complaint is made.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    State Bank of Clinton, Appellee, v. Sylvia Barnett et al., Appellants.
    Appeals and ebrors—when findings of chancellor not disturbed. The findings of fact by a chancellor will not he set aside on review if not clearly unwarranted by the evidence, unless errors of law appear.
    Bill in chancery. Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term 1909.
    Affirmed.
    Opinion filed October 18, 1910.

      A. E. De Mange and Edward J. Sweeney, for appellants.
    Herrick & Herrick and Lemon & Lemon, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decree rendered upon a bill in chancery filed by appellee against appellants. The bill charges that on December 30, 1904, Lucy J. Barnett and W. A. Barnett, her hnsband, since deceased, executed and delivered to the complainant their promissory notes aggregating the sum of $2,394.89, together with power of attorney authorizing the confession of judgment thereon; that on July 29, 1907, judgment by confession upon said notes was entered by the Circuit Court of DeWitt county, against Mrs. Barnett for the sum- of $3,236.93, and that execution was issued thereon, which was afterwards returned nulla bona; that at the time of his death W. A. Barnett held a life insurance policy for the sum of $3,000, payable in case of his death, to his wife; that after his death his said wife collected the amount due upon said policy and made a pretended gift thereof, without consideration, to her daughter, Sylvia Barnett; that upon receiving said money, Sylvia loaned the same to one B. C. Sprague, taking his promissory notes therefor; that afterward she recovered judgments against the said Sprague for the aggregate sum of $3,125; that» executions were issued thereon and a levy thereunder had been made by the sheriff of the county; that the said Sylvia was otherwise insolvent, and if permitted to collect said judgments would appropriate the money to her own use and complainant be left without remedy; that Mrs. Barnett was also insolvent, and that the money represented by said judgments was the property of Mrs. Barnett and not that of Sylvia.

The answers of Mrs. Barnett and Sylvia deny the validity of the judgment against Mrs. Barnett. They admit that after the death of W. A. Barnett, the proceeds of the insurance policy in question were collected by Mrs. Barnett, and delivered to Sylvia, who loaned the same to Sprague. The answer of Mrs. Barnett further denies that she had any interest in said money or in the notes given by Sprague to Sylvia, or in the judgments obtained by Sylvia against Sprague. The answer of Sylvia further avers that although her mother was the beneficiary named in said policy, the said insurance was procured by her father for the sole benefit of her, the said Sylvia, and that the proceeds thereof were her property, and not that of her mother. Mrs. Barnett also filed a cross-bill seeking to set aside the judgment by confession against her.

Upon a hearing, the court entered a decree finding the facts to be substantially as averred in the bill, and further finding that the sheriff had collected in full the amounts of the judgment in favor of Sylvia and against Sprague, and had the proceeds thereof in bis possession. By the decree the sheriff is enjoined from paying over such money to Sylvia, and ordered to pay the same to the complainant.

The question as to the validity of the judgment against Mrs. Barnett has already been determined by the court adversely to the contention of appellants. Upon the question as to the ownership of the funds in controversy, the evidence discloses the following facts: After the death of Barnett, on October 14, 1904, his widow, Lucy J. Barnett, the beneficiary named in the insurance certificate, collected the proceeds thereof and deposited the same to her own credit in the Warner & Co. bank of Clinton. She afterward agreed to lend the money to Sprague, who was a former business associate of Mr. Barnett, and an intimate friend of the family, whereupon, on February 11, 1905, Sprague drafted and signed a non-negotiable note for $3,000, payable to the order of Lucy J. Barnett, due two years after date, and left the same with Mrs. Barnett. On the same day, one Hamilton, Mrs. Barnett’s attorney, advised her that inasmuch as she was indebted to the appellee bank, she had better not accept the note prepared by Sprague, and thereupon drafted, instead thereof, two notes for the sum of $1,500 each, one payable to Sylvia Barnett and the other to Sylvia Barnett, Trustee. When Sprague called later in the day, he executed the latter notes and Mrs. Barnett paid to him the insurance money. She failed to. return to him the note for $3,000, stating that she had mislaid it.. She testified that she found it several days later and still retained it at the time of the trial. The evidence still further shows that the estate of Barnett was insolvent, and that neither Mrs. Barnett nor Sylvia had any property other than the insurance money. Mrs. Barnett, Sylvia, and several other witnesses testified to declarations by Barnett in his lifetime, to the effect that he was carrying the insurance in question for the benefit of Sylvia, and it is contended that a parol trust for the benefit of Sylvia was thereby created. Such testimony, even if competent, was far from sufficient to establish such contention. It is not claimed that any attempt was ever made by Barnett to substitute his daughter as beneficiary in the policy in the manner prescribed by the terms of the by-laws of the society, nor in any other manner, and it seems clear under the proofs presented, that if her claim to the proceeds had been contested by her mother, she would have been unable to establish a valid claim thereto, either at law or in equity. There is no evidence that any right to the money was asserted by Sylvia which was disputed and compromised. The waiver by Mrs. Barnett of her unquestioned right to the fund must therefore be regarded as a voluntary gift of the same to Sylvia. From a careful consideration of all the evidence, which we shall not further detail, we cannot escape the conclusion that the fund was the property of Mrs. Barnett and that the notes in question were made payable to Sylvia for the sole purpose of placing the same beyond the reach of appellee, who was then a creditor of Mrs. Barnett.

The finding of the chancellor was not clearly unwarranted by the evidence and the decree is accordingly affirmed.

Affirmed.

Mr. Justice Philbrick took no part in the consideration of this case.


text:
    The National Cash Register Company, Appellant, v. A. Wait, Appellee.
    1. Mortgages—when third party charged with notice of chattel. A party is charged with notice of a chattel mortgage given by the owner in the corporate name used in business (such mortgage being recorded) if he has notice of any facts which would put a prudent and cautious man upon inquiry.
    2. Landlord and tenant—what essential to creation of lien by distress warrant. In order to create a landlord’s lien it is essential that a distress warrant shall be issued and levied.
    8. Replevin—when award of writ of retorno improper. Upon a favorable decision upon the plea of non cepit or non detinet, or both, a writ of retorno habendo should not be awarded.
    Replevin. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    D. C. Corley, for appellant.
    C. E. Schroll, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in replevin by appellant for the recovery of possession of three National Cash Registers. Upon a trial by jury, judgment was rendered that appellee recover of appellant the possession of the property replevied and that writ of retorno habendo issue.

The first count of the declaration avers that appellee took the goods of V. DeSanctis, formerly doing business under the name of Decatur Hotel Company, and detained them. The second count is the same except that it alleges that DeSanctis was doing business under the name of Decatur Hotel Co., and avers also a demand, and that appellee unlawfully detained the goods. The third count alleges that the appellee unlawfully detained the goods of V. DeSanctis, doing business under the name of the Decatur Hotel Co. The fourth count alleges that appellee unlawfully detained the goods of the Decatur Hotel Co., consisting of V. De-Sanctis, E. Love and L. B. DeSanctis.

The first plea was non cepit as to the first count. The second plea was non detinet as to the second, third and fourth counts. The third, fourth and fifth pleas were to the whole declaration. The third plea alleged property in appellee by purchase from Love. The fourth plea set up a sale of the property by Love, the owner and proprietor of the hotel known as The Decatur Hotel, under appellant’s mortgage, to appellee, without any knowledge or notice of the chattel mortgage. The fifth plea alleged that Love was the owner of the hotel; that the property was placed in the hotel and became part of the. furnishings of the hotel, and thereby became liable to the landlord’s lien, and that Love, in order to satisfy the lien, sold and transferred the property to appellee. Replications were filed traversing each of said pleas, but it is not therein alleged that the right of property was in the plaintiff.

The evidence discloses the following facts: Prior to the spring of 1908, The Decatur Hotel Company conducted a hotel in a building in Decatur, Illinois, owned by appellee. The company became bankrupt at that time, and ceased to do business. Its assets were purchased by appellee, who thereupon leased said building to one Love for the term of five years from September 23, 1908. Love, his wife, and V. DeSanctis and his wife, who was a daughter of Love, thereupon formed a corporation styled “The Interstate Hotel Company,” and thereafter conducted a hotel business in the building. It proved unprofitable, and on April 16, 1909, Love who was heavily indebted to appellee, transferred to him all his personal property, his lease to the hotel, together with all property of the Interstate Hotel Company, including the cash registers in controversy. Prior to this time, on March 4, 1909, the appellant company had sold said cash registers to DeSanctis, for the sum of $645, and to secure payment of the purchase price, accepted from him a note therefor, secured by a chattel mortgage on the cash registers, both note and mortgage being executed by DeSanctis under the name of “Decatur Hotel Co. by V. DeSanctis.” The mortgage was forthwith duly recorded in Macon county, as required by law. Appellee refused to deliver the cash registers to appellant after demand, whereupon the present suit was instituted. Appellee denies that at the time of the transfer by Love of the personal property used in the hotel, to him, he had either actual or legal notice or knowledge of the existence of the chattel mortgage, unless the recording of the same in the name of the “Decatur Hotel Co. by V. DeSanctis,” constituted such legal notice. He testified that prior to the purchase of the property he examined the record of chattel mortgages to ascertain whether or not Love had executed one upon the property in question.

The second instruction, given at the request of appellee, reads, in part, as follows:

“The recording of the chattel mortgage introduced in evidence is notice of the rights and liabilities of the plaintiff, the National Cash Register Co., and of the Decatur Hotel Co. in and to the cash registers, to everybody dealing with reference to such registers, with DeSanctis, and knowing he was doing business, if he was, under the name Decatur Hotel Co., but it is not notice of the rights of the plaintiff to any person who dealt with DeSanctis in his own name and having no notice or knowledge of the fact, if it be a fact, that he was doing business in the name of Decatur Hotel Co.”

The instruction did not properly state the law applicable to the facts in the case. The jury was told, in effect, that as a matter of law, the recording of the mortgage was not notice to appellee of the rights of appellant, unless he had actual notice or knowledge that DeSanctis was doing business in the name of Decatur Hotel Co. If appellee had notice of any facts which would have put a prudent and cautious man upon inquiry, then he was chargeable with notice of all facts which diligent inquiry would have disclosed. Hennebery v. Morse, 56 Ill. 394; Babcock v. Lisk, 57 Ill. 329; Prettyman v. Unland, 77 Ill. 206; Bent v. Coleman, 89 Ill. 364; Bank v. Dayton, 116 Ill. 257; Mason v. Mullahy, 145 Ill. 383; Weigel v. Green, 218 Ill. 227. Whether DeSanctis’ connection with the property, together with the manner in which the note and mortgage was signed' and acknowledged, was known to appellee, and was sufficient to put him upon further inquiry, was a question of fact which should have been submitted to the jury.

Appellant’s first instruction, which told the jury that though they believed said Love acquired title from DeSanctis, they must believe from a preponderance of evidence that he procured that title without actual or constructive notice of the mortgage, and that actual notice was not necessary, but that said Love was bound to know what is disclosed by the records of the county in which the mortgage is recorded after same was filed for record, should have been given.

In view of the fifth plea, it was error to refuse to permit appellant to show whether or not a distress warrant had ever been issued against Love. In order to create a landlord’s lien it is essential that a distress warrant shall be issued and levied. Hadden v. Knickerbocker, 70 Ill. 677; Herron v. Grill, 112 Ill. 247.

It is further urged that the court erred in awarding a writ of retorno habendo. We are of opinion that the writ was improperly awarded. In Anderson v. Talcott, 1 Gril. 365, 371, the court said: “The plea of non cepit only puts in issue the taking of the property. This plea admits the right of property to be in the plaintiff and if the defendant succeed on the plea he is not therefore entitled to a return of the property. If he insists on a return he must contest the plaintiff’s right to the property. This he may do by formally traversing the plaintiff’s allegation of right or by pleading specially that the right of property is in some one other than the plaintiff. * * * The defendant is bound to take this course before he can contest the plaintiff’s right to the property. The object of these allegations by the defendant is to procure a return of the property and to impose on the plaintiff the necessity of proving title to sustain his action. ’ ’ This rule of pleading is supported by Chandler v. Lincoln, 52 Ill. 74; Reynolds v. McCormick, 62 Ill. 412; Constantine v. Foster, 57 Ill. 37; Vose v. Hart, 12 Ill. 377; Ingalls v. Bulkley, 15 Ill. 224; Bourk v. Riggs, 38 Ill. 321; Rohe v. Pease, 189 Ill. 207; Baldwin v. Smith, 143 Ill. App. 56.

The pleas of non cepit and non detinet admit property in appellant. Rohe v. Pease, 189 Ill. 207. The third, fourth and fifth pleas fail to traverse appellant’s right of property. All replications are to averments of property in either Love or appellee. The issue was thus formed upon the inducement of each of said pleas, and not upon the question of title to the property in appellant. Such issue was therefore not submitted to the jury, and the judgment for the writ of retorno habendo was erroneous. “A judgment for the return of property cannot be rendered unless it appears from the issues tried and the verdict returned that the plaintiff was not the owner. Rohe v. Pease, 189 Ill. 207.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Village of Raymond, Appellee, v. John Hamm, Appellant.
    Verdicts—when not disturbed as excessive. A verdict will not be set aside as excessive if not clearly and manifestly against the weight of the evidence.
    Assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding.
    Heard in this court "at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    T. A. Gasaway, for appellant.
    Hill & Bullington, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by the defendant from a judgment rendered against him in favor of the village of Raymond, for the sum of $300. The action is predicated upon a written contract between the parties, under and by which the defendant agreed to construct certain concrete sidewalks in said village, and to keep the same in good repair for at least five years after the same had been accepted by said village. The declaration charges that after such walks were constructed and accepted, the same became defective and broken, and that the defendant had failed to keep the said sidewalks in good order and repair as provided by his said contract.

The only ground urged for reversal is that the verdict of the jury is excessive. It is urged by appellant that the damages should only have been such sum as the evidence showed would be just compensation for placing the walks in good order and repair, and that such evidence shows that this could be done for a much less sum than the amount awarded as damages. The contention of appellee is that the condition of the walks was such that it would be necessary to remove the present walks, re-level the foundation and lay thereon a new coating of concrete. After a careful examination of the evidence, which is somewhat conflicting, we are of opinion that the jury was warranted in finding that the walks were so badly cracked and so heaved up as to be incapable of being repaired to advantage, and that the cost of removing the old walks and replacing the same would be at least the amount of the verdict rendered.

The judgment of the Circuit Court is therefore affirmed.

Affirmed.


text:
    Fitzsimmons-Kreider Milling Company, Appellee, v. Ohio Millers Mutual Fire Insurance Company, Appellant.

      Insurance—when provision as to watchman waived. Knowledge upon the part of inspectors of an insurance company is the knowledge of such company and if with knowledge that the clause requiring the keeping of a watchman is not being observed the company accepts premiums, it is estopped to urge the nonobservance of such provision as a defense to an action upon a policy.
    Assumpsit. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Kirby, Wilson & Baldwin and Barger & Hicks, for appellant.
    Bellatti, Barnes & Bellatti and Thomas Bates, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit upon a fire insurance policy issued by appellant to appellee on December 1, 1905., insuring appellee in an amount not to exceed $5,000 for the term of five years. The property covered by the policy was a milling plant belonging to appellee, located at Jacksonville, Illinois, which was destroyed by fire on Sunday, April 18, 1909, about eleven o’clock in the forenoon, while in the possession of Goebel & Burr, lessees of appellee. This appeal is prosecuted to reverse a judgment rendered upon the trial against the defendant for the sum of $4,040.80.

The declaration sets out the policy in haec verba, and contains the usual averments of the destruction of the property, notice thereof, the furnishing of proof of loss, and the refusal of the defendant to pay the same. The policy contains provisions to the effect that it should be void if, without the written consent of the insurer, the mill in question should cease operations for a period exceeding sixty days at one time. The policy, the by-laws of the company printed thereon, and the application for the policy, also contain an express warranty that the insured should keep a watchman on duty in the mill at all times when the machinery was not in operation for any cause," except that such watchman might be relieved from duty in the day-time while other employes were on duty and actually in the building on the premises; that such watchman should use a watchman’s time detector with at least one station on each floor of the buildings and engine and boiler house, and that he should be required to make hourly rounds at each watch clock station while on duty, and that records of the same should be dated, filed and kept for inspection- of insurance inspectors in periods of at least ninety days. The defendant pleaded non-assumpsit, with a notice that it would interpose as special defenses, first, the failure of the plaintiff to keep a watchman on duty on Sundays and holidays, and second, that said mill ceased operations for a period of sixty days preceding the fire, contrary to the terms and conditions of the policy.

The evidence shows the issuance of the policy, the application and by-laws containing the warranty referred to; the destruction by fire of certain of the property described in the policy; the subsequent adjustment of the pecuniary loss occasioned thereby, and the furnishing of proper proofs thereof. The evidence on the part of appellant tended to show that Goebel & Burr shut down the mill about January 1, 1909, and transferred their milling operations to another plant; that thereafter the mill was not in operation, except for a few days in J annary, the last time for about two days, the 29th and 30th of January, at a time when the power installed at the new plant was out of order; that no flour whatever was ground in the mill after the first of January, the operation thereafter' during January being confined solely to the blending of flour into grades and grinding small quantities of corn meal and feed; that thereafter, until the time of the fire, Goebel & Burr, the lessees of the mill, kept their office in and retailed flour, meal and feed from the mill building. The evidence further shows that after the 30th day of January, the machinery of the mill was not operated, except on February 22, when some corn meal was ground, and that with the exception of this occasion, the mill was not run on Sundays or holidays at any time after the issuance of the policy, nor was there on such days any employe of the mill on duty and in the buildings on the premises, but that on all other days a watchman made hourly rounds in the building at night, punching a watch clock kept for that purpose, to indicate the time of making said rounds; but that on Sundays and holidays when the mill was not in operation, he left the mill about six o ’clock each morning and did not return until six o’clock in the evening; that during the interim there was no employe of the mill on duty or in the buildings, and that such was the condition on the Sunday forenoon when the fire occurred.

There was some conflict as to whether or not the mill was operated on the 22nd of February. We think the greater weight of the evidence tends to show that it was so operated within the meaning of the policy. Ins. Co. v. Cotton Mfg. Co., 125 Ill. 131; Ladd v. Ins. Co., 42 N. E. 197.

Upon the trial appellee contended, and still insists, that appellant is estopped from taking advantage of the alleged violation of the clause in the policy which required a watchman to be on duty in the day time, for the reason that it assessed against, demanding and accepted from appellee the premiums provided for by the policy, with full knowledge that appellee was not keeping a watchman on duty in the day time. Upon this issue there is evidence tending to show that there was kept upon the premises a clock containing a paper dial; that each hour during his rounds, the watchman punched a hole in such dial by inserting a key in the clock; that each morning a new dial, upon which was stamped the date, was placed in the clock, and that the used dials were filed and exhibited to different inspectors representing appellant, who visited the premises at intervals of about every three months; that such inspector at each visit was shown and examined the dials which had been used in the clock since the last visit; that as each inspector visited the premises he presented a card to appellee upon which was printed his name, and that of each of the insurance companies represented by him, of which appellant was one, and that shortly after his visit and examination of the dials, appellee received a letter from appellant stating that such inspector had made his report; that on several occasions it suggested certain changes to be made in the surroundings and conditions of the mill, hut that at no time did it criticise the manner in which the watchman performed his duties or request that the system followed be changed.

Appellant thus recognized the authority of the inspectors to represent it and the knowledge of such inspectors must be held to, be that of the company. We therefore conclude that the jury was warranted in finding that during the time the policy in suit and prior policies were in force, the company had knowledge of the fact that the watchman clause was not being strictly complied with; that appellee did not keep a watchman on duty during the day time, but that it did keep a watchman upon the premises continuously from six o’clock in the evening until six o’clock in the morning. The evidence further shows that upon the execution and delivery of each of the policies in question, appellee paid to appellant a certain sum in cash and executed and delivered to it what was called a premium note for a certain other additional sum; that semi-annually appellant made an assessment upon such premium note for the premiums which had accrued on the policies, and then drew drafts upon appellee for the amount of such assessment, which drafts were accepted and paid by appellee, and that such had been the custom for a number of years.

“An insurance company that knowingly takes a premium for a policy under conditions that would render it invalid, will not be permitted to say that it is not a binding contract for that reason. In all such cases the company will be regarded as having the same knowledge of the conditions and situation of the property, as possessed by the agent transacting the business for it. This view of the law has frequently received the sanction of this court in its previous decisions.” Germania Ins. Co. v. Hick, 125 Ill. 361; Ins. Co. v. Olmstead, 68 Ill. App. 111; Ins. Co. v. Steiger, 26 Ill. App. 228; Ins. Co. v. Jones, 62 Ill. 458; Ins. Co. v. Klewer, 129 Ill. 599; Ins. Co. v. Pacaud, 51 Ill. App. 252.

Under the facts above detailed and the authorities cited, we are of the opinion that appellant having with full knowledge of the facts, permitted the policy in suit to remain in force, and having demanded, collected and retained several premiums thereunder, is now estopped to assert that the policy wag void because of the violation of the watchman clause. In this view of the case it will be unnecessary to determine whether or not the statements, conduct and requirements of the adjuster representing the appellant, prior to and during the progress of the adjustment of the loss, constituted a waiver of the breaches of the contract of insurance.

The judgment of the Circuit Court is affirmed.

Affirmed.