author: Mr. Presiding Justice Eldredge

text:
    Hattie S. Moury, Administratrix, Appellee, v. Latham Coal and Mining Company, Appellant.
    1. Mines and minerals, § 182

      —when question for jury whether cage was safely constructed. In an action to recover for the death of a miner due to a fall from a cage, in which he was riding to the surface, where it appeared that the shaft was separated from an adjoining shaft by timbers placed horizontally 12 inches apart; that the other three sides of the shaft were boarded up; that the cage ran up 'and down upon two guides of 6 by 6-inch timbers, one guide being attached to the partition wall and the other to the opposite wall; that the cage was fastened to them with shoes; that there was a space of from 6 to-8 inches between the platform of the cage and the partition wall as it traveled up and down the shaft; that there were handholes for men to use when riding, but that they were not rigid and swung; that the cage had no sides to it and had no shield or guard about it; that the cage was operated in total darkness and that in some way deceased fell between the platform of the cage and the partition wall and down the shaft, it was a question for the jury whether the cage was safely constructed.
    2. Workmen’s Compensation Act, § 2

      —what is effect of refusal of employer to abide by. An employer who declines to abide by the Workmen’s Compensation Act is deprived of the common-law defenses of contributory negligence, assumption of risk and the like.
    3. Workmen’s Compensation Act, § 11

      —when death of miner arises out of and in course of his employment. A miner meets his death as the result of an injury arising out of and in the course of his employment, within the Workmen’s Compensation Act, where, while he is in the cage which is transporting him to the surface at the end of his day’s work, and is on his way home, he is killed as the result of a fall down the shaft.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 22, 1918.
    Beach & Trapp, for appellant.
    Covet & Woods, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

This is an appeal from a judgment for the sum of $1,500 entered upon the verdict of a jury in a suit to recover damages for the death of Charles Ernest Moury, claimed to have been caused by the negligence of appellant.

Appellant operated a coal mine near the City of Lincoln, in Logan county, and deceased worked in said mine as an employee of appellant. The declaration in the case averred, and the proofs show, that appellant had declined to become bound by the profusions of the Workmen’s Compensation Law of this State. Two principal defenses are urged by appellant against appellee’s right to recover: (1) That no negligence was proven on the part of appellant; and (2) that the accidental injury to the deceased, which caused his death, did not arise out of and in the course of his employment.

The mine of defendant was composed of two shafts constructed side by side, called the north and south shaft, respectively. They were separated by 8 by 8-inch timbers, called buntons, which laid horizontally from top to bottom, about 12 inches apart, thus leaving an opening between the two shafts of 12 inches between each timber. The other three sides of each shaft were boarded up. A cage ran up and down each shaft upon two guides made out of 6 by 6-inch timbers, one guide being attached to the bunton wall and the other to the opposite wall. The cages were fastened to them with shoes. At the top and the bottom of the shaft an open space of at least 6 inches existed between the edge of the cage and the buntons, but this'space varied at points between the top and the bottom, and it is conceded that in some places the space between the edge of the cage and the bunton was as much as 8 inches. There were handholds in the cage for the miners to grasp while riding thereon. These handholds were from 5% to 6 feet above the floor of the cage, and were not rigid, but were constructed so that they would swing. The cage itself had no sides to it and had no shield or guard or protection of any kind around it.

About 5 o’clock in the afternoon of June 30, 1917, the deceased, with three companions, having finished their day’s work in the mine, came to the bottom of the shaft for the purpose of being hoisted in one of the cages to the surface. They got upon the north cage, and the deceased stood on the southeast part thereof, facing east. He carried his dinner bucket in the crotch of his right arm. As the cage started up the shaft it was in complete darkness and nothing therein was visible. The companions of the deceased testified that when the cage was about halfway to the top they heard a sort of a crunching noise, but on account of the darkness could not see anything. When the cage arrived at the top the deceased was found to be missing, and thereafter his body was found at the bottom of the shaft, crushed and lifeless.

It is apparent that either the deceased fell or was caught and drawn through the open space between the edge of the cage and the buntons. His body in some manner, and for some reason, passed through this open space, for in no other manner could it fall to the bottom of the shaft.

Paragraph C. of section 10, ch. 93, Hurd’s Rev. St. (J. & A. ¶ 7484), provides among other things that “said cages must be safely constructed.” Whether this cage in question, operated in a shaft in total darkness, with unprotected sides and with a space between the edge thereof and the side of the shaft sufficient for a man’s body to pass through, in case he should be so unfortunate as to step into said space or to have some portion of his body caught by the timbers in the shaft, was safely constructed, was a question of fact for the jury to determine. Appellant, having declined to abide by the Workmen’s Compensation Act, was deprived of the common-law defenses of contributory negligence, assumption of risk and the like.

Deceased had finished his day’s work and had proceeded to the bottom of the shaft for the purpose of being hoisted to the surface to return to his home, and for this reason it is claimed that the injury which caused his death did not arise out of and in the course of his employment. Such a construction would be harsh indeed, especially when the means which caused his injury was furnished for his transportation by his employer. It would be at variance with the scheme and object of the Compensation Act and in conflict with the construction thereof announced in this State and elsewhere. Friebel v. Chicago City Ry. Co., 280 Ill. 76 [16 N. C. C. A. 390], and cases cited.

What has been said disposes of the other questions raised and the judgment of the Circuit Court is affirmed

Affirmed.


source: Caselaw Access Project

author: Mr. Justice" Graves

license: Public Domain

text:
    William P. Shade, Appellant, v. City of Taylorville, Appellee.
    1. Municipal corporations, § 403

      —what deemed part of paving funds for payment of contractor’s claim. Money to he raised hy general taxation for street paving must he regarded as paid into the city paving funds and subject to being applied to the extent that it would go to the liquidation of the contractor’s claim.
    2. Municipal corporations, § 404

      —how cannot escape legal obligation to pay for special assessments for paving purposes against own property. A city cannot- defeat its legal obligation to pay for special assessments for paving purposes against its property by stipulating in the contract with the contractor that the city should not be held liable to pay the contractor any money to be raised by special taxation until it was in fact paid into the city treasury.
    3. Municipal corporations, § 347

      —when ordinance is insufficient to warrant payment of costs and expenses of improvement out of special assessment funds. An ordinance passed by a city of less than 100,000 population, providing that the whole cost and expense of improvement of streets and street and alley intersections, and the expense of levying the special tax and also the entire cost attending the making of the assessment roll and including the .fees of the superintendent of special assessments and court costs, to an amount not exceeding 6 per cent of the total amount of said tax, shall be raised and paid for hy special taxation of the abutting property and the remainder he paid hy general taxation, fails to provide for any “certain sum” to defray the costs and expenses incident to the improvement, and is defective under section 94 of the Local Improvement Act (J. & A. ¶ 1489), and it is hence improper for the city to pay such expenses out of the funds raised by special assessment.
    4. Municipal corporations, § 404

      —what constitutes diversion and misappropriation of paving funds. The payment of the costs and expenses incident to the improvement of a street out of the paving funds raised by special assessment is a diversion and misappropriation of such funds to that extent when the ordinance providing therefor is invalid because not providing for a “certain sum” for such purpose.
    5. Municipal corporations, § 404

      —-when money improperly diverted treated as part of pawing fund. Money improperly diverted out of the paving funds raised hy special assessment to pay the costs and expenses Incident to street paving improvements should be treated as still in the hands of the city and available for the payment on any balance due the contractor on his contract.
    6. Municipal cobpobations, § 416

      —when interest allowed in favor of contractor. Interest is chargeable in favor of a paving contractor against a city on funds illegally diverted from paving funds and on all unpaid instalments of special assessments.
    7. Appeal and brbob, § 1802

      —when cause remanded for further proceedings upon ^reversal. In an action by a contractor against a city on a street paving contract, the cause will be "remanded for further proceedings, upon reversal in favor of the contractor, where the data afforded by the record are insufficient to enable the court to make computations upon which judgment can be entered.
    Appeal from the Circuit Court of Christian county; the Hon. Gkoboe A. Gbow, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 22, 1918.
    L. A. Mills and Mills Brothers, for appellant.
    Edward E. Adams, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice" Graves

delivered the opinion of the court.

This is a suit in assumpsit brought by appellant as the surviving partner of the firm of P. H. Hunt & Company, a copartnership, to recover of appellee an unpaid balance due the partnership on a street paving contract. It is not disputed that the proceedings of the city council, and in the Probate Court under-which the contract in question was let, were regular; that the contract was properly let and entered into; and that the work was performed in substantial conformity with such contract and accepted by the city, or that there is unpaid on the contract the principal sum of $10,472.41. The contested questions are whether appellee has paid the part of the uost of the pavement which the Probate Court of Christian county adjudged it should pay, and whether it has now or has had and still should have in its possession, funds which should be applied to the payment of the unpaid balance on the contract sued on and whether interest on this unpaid balance is collectible, and, if so, from what date to what date.

A trial by jury was waived and the case was tried by the court. The finding and judgment were in favor of the defendant and against the plaintiff in bar of his action and for costs.

The record here discloses that the assessment roll, as finally approved by the Probate Court, provided for ample funds with which to pay the contract price of the pavement. The order confirming the assessment roll required appellee to pay $23,338.45 of the total amount of which $17,846.30 was an assessment for public benefits and included the estimated expense of paving the street and alley intersections, $718.75 was a special assessment against certain property belonging to appellee, abutting on the pavement, and $4,773.40 was for the special assessment for which the county of Christian would have been liable except for a previous arrangement between the county and appellee, under which the Probate Court adjudged appellee was bound to pay it. The validity and binding force of that judgment are not questioned in this case. With that order and judgment of the Probate Court standing unchallenged, appellee contracted with the partnership of which appellant was a member to do the proposed paving, and bound itself to pay therefor in cash from time to time as the work progressed the $17,846.30 assessed for street and alley intersections, and the $4,773.40, the amount originally assessed to the county of Christian but which the city was ordered to pay, and to pay on the remainder of the contract price of the pavement, within 10 days after the work was completed and accepted, all moneys that had then been paid in on special assessments against abutting property, and to pay the remainder of the contract price when and as the remainder of special assessments against abutting property should be paid. This contract is very poorly drawn so far as the stipulations in it regarding payment is concerned, but the construction just placed on its provisions is the only one that can be given it, consistent with the law and the language employed. The $23,338.45 to be paid by appellee was to be paid from moneys to be raised by general taxation, and so far as appellant is concerned must be regarded as paid into the paving funds and subject to being applied to the extent it will go to the liquidation of appellant’s claim. The stipulation in the contract that the city should not be held liable to pay to appellant any money to be raised by special taxation until it was in fact paid into the city treasury cannot be held to apply to moneys due from the city on special assessments. It would be strange law that would permit a city to defeat its own legal obligations by a wilful or negligent failure on its part to turn into the paving fund the amount duly assessed against it for public improvements or special benefits to its property. Conway v. City of Chicago, 237 Ill. 128, and City of Chicago v. Conway, 138 Ill. App. 320. Of the $23,338.45 which the city was ordered to pay into this paving fund, or to expend in the liquidation of appellant’s claim for the performance of his contract, it in fact so paid and expended only $19,221.94, leaving a balance due from the city to that fund of $4,116.50.

Out of the funds paid into the city treasury on special assessments against other property than that owned by the city, the city had paid various items of expense under claim of right, but which it had in fact no right to pay out of this paving fund.

Section 94 of the Local Improvement Act (J. & A. ¶ 1489) is as follows:

“The cost and expenses of maintaining the board of local improvements herein authorized, of paying the salaries of the members of said board, and the expense of making and levying special assessments or special taxes and of letting and executing contracts; and also the entire cost and expense attending the making and return of the assessment rolls and the necessary estimates, examinations, advertisements, etc., etc., connected with the proceedings herein provided for, including the court costs, including the fees to commissioners in condemnation proceedings, which are to be taxed as above provided, shall be paid by the city, village or town out of its general fund: Provided, however, that in cities, towns or villages of this State having a population of less than one hundred thousand by the last preceding census of the United States, or of this State, the city, village or town, as the case may be, may in and by the ordinance providing for the assessment prescribed, provide that a certain sum, not to-exceed six per centum of the amount of such assessment, shall be applied toward the payment of the aforesaid, and other costs of making and collecting such assessment.”

Section 2 of the ordinance providing for the paving in question is as follows:

“That the whole cost and expense of improvement of said streets as aforesaid, as provided for in Section 1 of this Ordinance, and the whole cost and expense of the improvement of all street and alley intersections lying and being between said above described points on said streets, and the expense of levying special tax and also the entire cost attending the making of the assessment roll and including the fees of the Superintendent of Special Assessments and the court costs, to an amount not exceeding six per cent of the total amount of said tax, shall be raised and paid for by special taxation of the abutting property, to be levied upon the abutting property benefited thereby, to the amount that the same may be legally assessed therefor, and the remainder of such cost to be paid by general taxation.”

While this section of the ordinance was undoubtedly passed for the purpose of raising funds to defray the costs and expenses incident to the proposed improvement, it fails signally to comply with the express terms of the proviso in section 94 of the Local Improvement Act, a compliance with which alone can exempt the city from paying such costs and expenses ont of funds raised by general taxation. The ordinance fails to provide that any “certain sum” shall be applied to the payment of such costs and expenses. It was therefore improper for thé city to pay such expenses out of the funds raised by special assessment, and the payment of them out of that fund was a diversion and misappropriation of such funds to that extent. Such moneys so improperly diverted from the paving fund should be treated as still in the hands of appellee and available for the payment of any balance due appellant on his paving contract. See Conway v. City of Chicago, 237 Ill. 128.

Enough has been said to show that there are funds constructively in the hands of appellee from which any claim of appellant on his contract can be paid, either in whole or in part, and that the finding and judgment of the Circuit Court are erroneous. It follows that that judgment must be reversed.

It is also apparent that interest is chargeable against appellee on funds illegally diverted. Conway v. City of Chicago, 237 Ill. 128, and City of Chicago v. Union Trust Co., 138 Ill. App. 545, and on all unpaid instalments of special assessments.

We are asked to enter judgment here for the amount found due appellant, and we have diligently and laboriously attempted to make computations upon which judgment can be entered, but find that data in the record is insufficient, both as to the balance originally unpaid on the contract and the dates from which and the amounts on which interest should be charged, to base anything like a satisfactory statement of account upon. The judgment of the Circuit Court is therefore reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.


author: Mr. Justice Graves

text:
    Charles Crum, Defendant in Error, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Plaintiff in Error.
    1. Costs, § 5

      —rule as to judgment for at common law. At common law a judgment for costs does not exist.
    2. Costs, § 5

      —when judgment for can be entered. A judgment can- only be entered for costs when the same is authorized by statute or by agreement of the parties.
    3. Costs—absence of statute authorising trial court to tax costs made in Appellate or Supreme Court. There is no statute authorizing a trial court to tax as costs in that court, costs that are made in the Appellate or Supreme Court, the costs in those courts being disposed of in the judgments there entered.
    4. Costs, § 64

      —when words “costs of suit” in judgment construed to cover only legal. The words “costs of suit” in a judgment for costs that judgment is entered by agreement “in favor of the plaintiff * * * against the defendant * * * in the sum of Fifty Dollars ($50.00) and costs of suit,” must be construed to mean only such costs as the trial court had authority to enter, and hence not to include costs in the Appellate Court on a prior appeal.
    Error to the County Court of Edgar county; the Hon.- Dan V. Dayton, Judge, presiding. Heard in this court at the September term, 1917.
    .Reversed and remanded with directions.
    Opinion filed October 22, 1918.
    George B. Gillespie, for plaintiff in error.
    J. K. Lauher, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Defendant in error sued plaintiff in error and recovered judgment. On appeal to the Appellate Court that judgment was reversed for error and the cause was remanded to the County Court. ’ After the cause was redocketed in the County Court the parties set-tied the case and judgment was rendered hy agreement of parties against plaintiff in error and for costs of suit. Later a fee bill was issued for the costs. The fee bill contained, besides all the regular and proper costs in the County Court, the costs in the Appellate Court in matter of the appeal from the former judgment, and also an item for stenographer’s fees in taking a certain deposition. A motion to retax the costs was made and an order was entered thereon directing the retaxing of the costs so as to eliminate the stenographer’s fees but denying the motion so far as it related to the costs in the Appellate Court. It is to reverse this order retaxing costs that this writ of error is prosecuted.

At the common law there was no such thing as a judgment for costs. Under our practice a judgment for costs can only be entered when the same is authorized by statute or by the agreement of the parties. There is no statute authorizing a trial court to tax as costs in that court, costs that are made in the Appellate or Supreme Court. The costs in those courts are disposed of in the judgments there entered. See section 22, ch. 33 (J. & A. ¶ 2736) and section 27, ch. 37, Rev. St. (J. & A. ¶ 2970). There is no proof in this record as to what the stipulation of the parties in fact was or that it was agreed between them that plaintiff in error was to pay the costs in the Appellate Court. It follows that in determining whether the order to retax costs is correct or not, this court is limited to the construction of the language of the judgment on which the fee bill in question issued, and in doing that the foregoing propositions must be kept in mind.

The judgment referred to is in the following words: “By agreement of parties judgment is hereby rendered in favor of the plaintiff, Chas. Crum, against the defendant, the C., C., C. & St. L. Ry. Co., in the sum of Fifty Dollars ($50.00) and costs of suit.” The judgment is, to say the least, extremely informal, but is before us not for review but construction. The words “costs of suit,” in view of what has been said, can only be construed to mean such costs as that court at that time had statutory power to enter, or, in other words, the costs in that court. If the agreement between the parties in fact was that plaintiff in error should also pay the costs made in the Appellate Court, judgment for which had already been entered in that court, it may be defendant in error can yet enforce that contract in an original action, but there is nothing in this record from which it can be determined that the judgment referred to included such costs.

The order appealed from is reversed and the cause is remanded to the County Court with directions to quash the fee bill as to all costs taxed in the Appellate Court as well as the items which the County Court did eliminate by the order appealed from. The item of costs in the Appellate Court to be finally eliminated are as follows:'

Fees—Costs in Appellate Court............$17.85

Fees—Printing Abstracts.................. 26.00

Fees—Lucy Bishop, Court Reporter........52.50

Advance costs paid by appellant............ 10.00

Reversed and remanded with directions.


text:
    Corn Belt Lumber Company, Successors to E. R. Darlington Lumber Company, Appellant, v. Effie May Doty, Appellee.
    1. Appeal and ebbob, § 1410

      —when verdict may be set aside. A verdict of a jury should not be set aside by an Appellate tribunal unless it is manifestly contrary to the weight of evidence, or where other reversible error is found in the record.
    2. Contbaois, § 102

      —what constitutes duress. Actual or threatened use or misuse of criminal process, legal or illegal, sufficient to overpower and overcome the will of the party threatened constitutes duress.
    3. Contbacts, § 103

      —When signature of wife to note of husband is procured by duress. The signature of a wife' as surety on a note of her husband was obtained by duress where, at the time of the signature, she was deprived of her free will and forced to sign it by fear of her husband’s arrest and punishment for perjury, which fear was induced by the threats of an agent of the payee.
    Appeal from the County Court of McLean county; the Hon. James C. Riley, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed October 22, 1918.
    Sterling, Livingston &" Whitmore, for appellant.
    Jesse E. Hoffman, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

This suit is on a promissory note signed by appellee as surety for her husband. The defense is that her signature to the note was obtained by duress. This case has been twice tried by a jury and in each instance the jury found the issues for the defendant. A verdict of a jury should not be set aside by an Appellate tribunal unless it is manifestly contrary to the weight of the evidence, or where other reversible error is found in the record. Both juries to which this cause has been submitted have found that the signature 'of appellee to this note was obtained by duress. A careful consideration of all the evidence offered at the last trial fails to disclose anything to warrant us in holding that the verdict is not supported by the evidence. On the contrary, the evidence amply supports the verdict and strongly tends to show that at the time the note sued on was signed by appellee there was due from her husband to the E. R. Darling-ton Lumber Company, a corporation, the sum of $139 only; that the note in question was for $343, more than twice the amount due from the husband to the lumber company, and that when appellee signed the same she was deprived of her free will and forced to sign it by fear of her husband’s arrest and punishment for perjury, which fear was induced by the threats of the agent of the lumber company.

Under the modem rule of law, actual or threatened use or misuse of criminal process, legal or illegal, sufficient to overpower and overcome the will of the party threatened constitutes duress (Wilbur v. Blanchard, 22 Idaho 517, 126 Pac. 1069); and while in Mack v. Prang, 104 Wis. 1, 79 N. W. 770, it was held that in order to constitute duress the threat must be of such a nature and made under such circumstances as to constitute a reasonably adequate cause t.o control the will of the threatened person, and must have that effect, and the act to be avoided must be performed by such person while in such condition, it was also held that duress which consists of threats of imprisonment of a husband or a child is a species of fraud, which renders the contract made under its influence voidable although not absolutely void, and that proof that a note and mortgage given by a wife upon her individual property were executed under threats of criminal prosecution of her husband for embezzlement, and that she was greatly excited and alarmed by these threats and had fainting spells before and after she executed the mortgage, and only consented to execute it to prevent her husband being sent to jail, was sufficient evidence of duress to invalidate the note and mortgage as between the wife and mortgagee.

In Thompson v. Hicks, 100 S. W. (Tex.) 357, it was held that obtaining a note through the payee’s threat to prosecute the maker for a criminal offense, though the maker be guilty, constitutes duress.

In Adams v. Irvin Nat. Bank, 116 N. Y. 606, it is announced to be now the settled rule that a husband or wife may avoid a contract induced or obtained by threats of imprisonment of the other, and that it is of no consequence whether the threat is of a lawful or unlawful imprisonment. To the same effect is Bush v. Brown, 49 Ind. 573; Galusha v. Sherman, 105 Wis. 263; City Nat. Bank of Dayton v. Kusworm, 88 Wis. 188; McCormick Harvesting-Mach. Co. v. Hamilton, 73 Wis. 486.

From all the authorities we deduce the rule that whenever, by threats of prosecution or imprisonment of a husband or wife, the other is induced to pay money or enter into a contract to pay money or to do anything, when such payment or contract would not have been made or thing done but for the threats and the fear that they would be carried into execution, then courts will interfere to relieve the person who has so been induced to act from the consequences of such acts, on the theory that the thing done has not been voluntarily done, that on the part of the one acting there has been no mental assent given. The pressure thus exerted partakes to be sure somewhat of the element of undue influence, but it retains enough of the element of force and coercion so that when the party is induced by it to do a thing or make a contract which but for such means so employed he would not have so acted, it is construed to be duress and treated accordingly.

On the theory that the verdict of the jury is right on the facts, the judgment of the County Court is correct.

Fault is found with the rulings of the court in giving and refusing instructions and on the admission and exclusion of the evidence, but what has been said disposes of all such questions. Judgment affirmed.

Affirmed.


text:
    Thaddeus R. Place, Appellee, v. Tri-State Investment Company, J. L. Henry and John M. Ijams, Appellants.
    1. Appeal and ebrob, § 1447

      —when sustaining of exceptions to proper answer and demurrer to proper cross-bill is harmless error. Even though the averments excluded from the answer of a trustee, in a suit by the purchaser of land against the trustee of property of the vendor held in trust for the purchaser as security for the performance of the contract, and the averments in a cross-bill by another person were sufficient in form and substance to have entitled the defendants to make proof of them, the ruling of the court in sustaining the exceptions to the answer and the demurrer to the cross-bill was harmless error, where defendants were permitted, over objections of complainant, to make such proof as they had of the matters therein averred, complainant was permitted to rebut the same, and on the whole record the proof failed to establish any rights that defendants had been deprived of in the decree appealed from.
    2. Equity, § 188—when leave of court to file cross-bill is necessary. While a person not a party to an original bill may in proper cases obtain leave to file a cross-bill, without such leave no right exists to do so.
    3. Trusts, § 245

      —what not defense to suit against trustee for failure to hold lands of vendor in trust for purchaser of other land. It is no defense to a suit to enforce a covenant by a trustee to hold land of a vendor in trust for the purchaser of other land for specific purposes that there were secret liens on the land of which, complainant had no notice, either actual or constructive, that must first be protected.
    4. Evidence, § 333

      —what is extent of right to show real consideration for contract. The right to show what is the real consideration for the making of a contract is limited to what the parties understood the consideration to be at the time the contract was entered into.
    5. Corporations, § 702

      —what was purpose of law regulating right of foreign to do business in State. The law prohibiting foreign corporations from doing business in the State except under certain circumstances and conditions was intended as a weapon of defense in the hands and for the protection of those with whom such corporations undertake to do business, and not as a shield behind which corporations or their agents or abettors can hide, when it is sought to enforce the performance of their obligations.
    6. Appeal and error, § 365

      —what objection cannot be raised, first on appeal. The point that a real estate company, a vendor of land, was not authorized to do business within the State and that the contract between the vendor and purchaser and a third person as trustee of other land of the vendor, by which such trustee agreed to hold the latter in trust until certain acts were performed by the vendor, was void, cannot be considered when raised for the first time on appeal.
    7. Damages, § 153

      —what recoverable for breach of contract between vendor and vendee of realty. Evidence held sufficient to show that the purchaser of land was damaged to the extent of $6,137 for failure of the vendor to perform its covenants to rent the land, reduce the mortgage indebtedness to a certain sum and procure an extension of time for maturing of the mortgage indebtedness.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welt.y, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 22, 1918.
    Herrick & Herrick and Barry & Morrissey, for appellants.
    Sterling, Livingston & Whitmore, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

On November 11, 1912, appellee purchased of the Tri-State Investment Company a tract of land in Minnesota containing 560 acres on which there was an outstanding mortgage amounting to $16,560. As a part of the contract of purchase the Tri-State Investment Company agreed to reduce the mortgage indebtedness to $16,500 and procure a loan of that amount due on or before 5 years from March 1, 1913, with a privilege of a 5-year extension, the same to draw 6 per cent interest per annum, and also guaranteed to rent, the land so purchased for the term of 3 years, commencing March 1, 1913, at an annual cash rental of $5.50 per acre, and also guaranteed the payment of such rental. When the time for the consummation of the deal had arrived, the Tri-State Investment Company had not reduced the mortgage indebtedness to $16,500, or secured the agreed loan upon the agreed terms, nor had it succeeded in renting the farm as agreed, and appellee objected to closing the deal until these matters were adjusted. Accordingly on April 2, 1913, the parties entered into a second contract in which the Tri-State Investment Company agreed to “furnish said lease as soon as possible, and to have said mortgage changed to be for a term of five (5) years straight, said mortgage to be altered before the first interest paying date,” and further agreed that certain properties in McLean and Champaign counties, Illinois, held by one J. L. Henry, as trustee, for the Tri-State Investment Company should hold the same in trust for appellee until the contract in relation to the $16,500 mortgage and the 3-year lease should be performed on the part of the Tri-State Investment Company. To this contract the said J. L. Henry was a party. Thereupon the deed to the Minnesota land was delivered to and accepted by appellee, and he performed his part of the contract of purchase by turning over the agreed consideration. In October, 1915, the Tri-State Investment Company not having performed either of the covenants referred to, appellee filed his bill in chancery in the Circuit Court of McLean county, Illinois, in which he prays for an accounting of the rents and profits realized by J. L. Henry, the said trustee, from said lands; that he be ordered to pay and turn over to appellee the proceeds of certain of the lands which he was to hold in trust for appellee but which he had already alienated and to convey to appellee title to such of the said lands as were still in his name, and for general relief. To this bill the Tri-State Investment Company and J. L. Henry are made defendants. Appellant J. L. Henry alone filed his answer to the bill, and he and one John M. Ijams filed a cross-bill. Exceptions were filed to the answer of J. L. Henry and a demurrer was interposed to the cross-bill. The sixth, seventh and eighth exceptions to the answer were sustained and the balance were overruled, and the demurrer to the cross-bill was sustained. The portions of the answer to which exceptions were sustained, and the cross-bill, undertook to set up certain claims against the trust property that were not mentioned in the deed or declaration of trust. Even if it be conceded that the averments excluded from the answer and the averments in the cross-bill were sufficient both in form and substance to have entitled appellant to have made proof of them, still the ruling of the court in sustaining these exceptions to the answer and the demurrer to the cross-bill is not reversible error, because appellant was permitted over objections of appellee, to make such proof as he had of the matters therein averred, .appellee was permitted to rebut the same, and on the whole record the proof failed to establish any rights that appellant has been deprived of in the decree appealed from. The demurrer to the cross-bill was properly sustained for another reason. John M. Ijams, one of the complainants in the cross-bill, was not a party to the suit. He did not answer the original bill nor did he obtain or ask leave to intervene or to file a oross-bill. While a person not a party to an original bill may in proper cases obtain leave to file a cross- . bill, without such leave no right exists to do so. Chapter 22, sec. 30, Rev. St. (J. & A. ¶ 910); Hall v. Davis, 44 Ill. 494. The court by its decree found that appellee had sustained damage to the amount of $6,137; that the property in question was held in trust by J. L. Henry to secure the payment of that amount; that one parcel of the property had been sold and that Henry had in his hands $51.04 of the proceeds of such sale, and ordered the said Henry to turn that amount over to appellee; that in case appellee was not paid the balance of the amount found due within 20 days, the balance of the trust property be sold and the proceeds thereof, after paying the costs and expenses of the sale, etc., should be turned over to appellee to the amount necessary to liquidate his said damages. The appeal was prayed by J. L. Henry and said John M. Ijams, one of the complainants in the cross-bill. The covenant for the breach of which this suit was brought was that wherein appellant J. L. Henry agreed to hold the property therein described in trust for appellee for certain definite purposes. It was a specific unqualified agreement. It was not that he would hold the equity of the property in. trust for appellee, but that he would hold the property itself. It is no defense to a suit to enforce such a covenant to say that there were certain secret liens on the land of which appellee had no notice, either actual or constructive, that must be first protected. Such a course would amount to making a new contract for the parties, which courts are powerless to do. In this case the weight of the evidence shows that appellee had no notice of these claimed liens.

Appellant contends that in attempting to show the existence of the liens mentioned in the answer and cross-bill they were merely undertaking to show the real consideration that passed to appellee to induce him to accept the Minnesota land before the investment company had performed its part of the agreement, and that proof of the consideration for a contract is always admissible. The right to show the real consideration for the making of a contract is limited to what the parties understood the consideration to be at the time the contract was entered into. What we hold is that the proof offered in this case fails to show that appellee knew or had any notice, constructive or otherwise, of the liens mentioned in the answer or cross-bill, or that he contracted with reference to such liens.

Appellant now insists that the Tri-State Investment Company is not authorized to do business in this State and that therefore the contract sued on is void. The law prohibiting foreign corporations from doing business in this State, except under certain circumstances and conditions, was intended as a weapon of defense in the hands and for the protection of those with whom such corporations undertake to do business, and not as a shield behind which such corporations or their agents or abettors can hide, when it is sought to enforce the performance of their obligations. McCarthy v. Alphons Custodis Chimney Const. Co., 219 Ill. 616. Besides that the point was not raised in the court below, and it cannot be considered when raised for the first time on appeal. American Trust & Savings Bank v. Crowe & Gillen, 82 Ill. App. 537.

It is also urged that the finding of the court that appellee was damaged by the failure of the investment company to perform its covenants to the extent of $6,137 is more than the evidence shows by $110. The evidence shows that appellee’s damage on account of the failure of the investment company to rent the land for the stipulated price was $6,007, and that the failure of the investment company to reduce the mortgage indebtedness on the Minnesota lands to $16,500 was a damage to appellee of $60, and the failure to procure an extension of time for the maturing of the mortgage indebtedness required appellee to borrow $3,500 to pay that much of the $16,500 mortgage as matured in the meantime, and that in order to raise that amount he was damaged in the sum of $70, which he was compelled to pay as commission on the $3,500 borrowed. These three items of damages when added together make the exact sum of $6,137.

We find no error in this record and the decree is affirmed.

Decree affirmed.


text:
    Thomas Coxon and John Coxon, Appellees, v. United States Fuel Company, Appellant.
    1. Principal and agent, § 200

      —when Knowledge of agent deemed Knowledge of principal. The knowledge of a surveyor that, when he gave directions to a lessee of coal mining rights in a mine to proceed a certain number of feet further than he had gone, such lessee had already encroached on land of another must be regarded as the khowledge of his principal, the mine owner.
    2. Mines and minerals, § 7

      —when lessor Hablé’ for trespass of lessee in abstracting coal of another. Where the trespass of a lessee of coal mining rights in encroaching upon the land of another and abstracting coal was acquiesced in, authorized and ratified by the lessor, the latter is liable in trespass for the damages, sustained by the owners of the mined coal.
    3. Mines and minerals, § 7

      —when coal mine owner liable for trespass by lessees in abstracting coal of another. A coal mine owner cannot be held liable for the trespassing acts of lessees of mining rights in encroaching upon the- land of another and abstracting coal, except in so far as it is shown to have authorized, directed or, with full knowledge of the facts, ratified the acts complained of.

      4. Contracts, § 205

      —construction of ly court. The construction of contracts is for the court.
    Appeal from the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed October 22, 1918.
    Knapp & Campbell and Rearick & Meeks, for appellant; John R. Cochran, of counsel.
    Acton & Acton and Isaac A. Love, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

The parties to this suit owned adjoining coal lands. Appellant gave permission in writing to Mons Olson and James Cunningham to mine the coal underlying certain separate parts of its lands. Appellees claim that Olson and Cunningham not only removed the coal under the lands of appellant but crossed the line and removed coal under the lands of appellees. This suit in trespass was brought to recover damages from appellant for the alleged acts of Olson and Cunningham. Appellees recovered a judgment for $1,400 against the United States Fuel Company, and it has prosecuted this appeal.

The proof does not show that appellant in any way authorized, acquiesced in or knew of the acts of Olson in mining coal under the premises of appellees until about February 12, 1917, when it gave notice to him to desist from further trespassing on those premises. The proof further shows that no coal was taken from the premises of appellees by Olson after February 7 or 8,1917. Prior to this notice Olson had mined 575 tons, worth $948.75, from appellees’ land.

As to the operations of Cunningham, the evidence is that the surveyor in the employ of appellant told bim he could proceed in the direction of appellees’ property 38 feet. Cunningham testified that he only proceeded 30 feet in that direction from the point where he was mining when the surveyor told him he could proceed 38 feet further. The testimony of the surveyor, who was called by appellees, was that when Cunningham stopped digging in the direction of their land, he had already encroached on their land 63 feet. If the testimony of these witnesses is true, then when appellant’s surveyor told Cunningham he could proceed 38 feet further in that direction he was already over the line 33 feet. It is not denied that the surveyor who gave Cunningham those directions was the agent of appellant, at least for the purpose of locating the boundaries of the premises and mines; that he gave the directions related by Cunningham; that when these directions were given Cunningham was then 30 or more feet over the line on the premises of appellees, or that the surveyor knew it at the time he made this last survey and gave these directions. The knowledge the surveyor then had must be regarded as the knowledge of his principal, the appellant, yet Cunningham was allowed to mine and did mine 30 feet further on the premises before he was stopped by the flooding of the mine. His trespass at least in mining the last 30 feet must be regarded as having been known, acquiesced in, authorized and ratified by appellant. In that state of affairs appellant is liable in trespass for the damages sustained by appellees from the acts of Cumiingham. The evidence, however, failed to show that any of the coal mined there by Cunningham was ever removed from the mine, so that it was impossible for the jury from any evidence before them to compute the damages so sustained.

Appellees urge that they have a right to recover under the doctrine of negligence, on the theory that it was the duty of appellant to prevent persons working mines on its premises from encroaching on the lands of others. The cases cited in support of that theory do not apply to the facts in this case. The acts of Olson and Cunningham in mining coal from appellees’ lands were trespasses, and appellant cannot be held liable except in so far as it is shown to have authorized, directed or with full knowledge of the facts, ratified the acts complained of. Sholl v. Straesser, 78 Ill. App. 101; Gress v. Roberts, 139 Ga. 795; Davison v. Shanahan, 93 Mich. 486; Olsen v. Upsahl, 69 Ill. 273.

In view of what has been said, it is apparent that the judgment must be reversed, because the evidence fails to so connect appellant with the" acts of Olson as to make it liable therefor, and because there is no proof that any coal was taken from the mine by Cunningham that came from the premises of appellees.

The first instruction given at the instance of appellees is erroneous. It leaves to the jury to construe the contract under which Olson and Cunningham operated. The construction of contracts is for the court.

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

Reversed and remanded.


text:
    Pauline Ruth McDavid, by W. Milton Berry, Appellee, v. Amanda L. Bohn and Bertha E. Lipe, Appellants.
    1. Wills, § 226

      —when Intention of testator given effect. In construing wills the intention of the testator, gathered from the language employed in the entire will, shall be given effect unless in so doing violence is done to some recognized rule of law.
    2. Wills, § 240

      —when technical words not strictly construed. Where technical words or expressions are used and it appears that the will was drafted by a person unfamiliar with their use or technical meaning, a strict construction of them will not he carried out to the extent of defeating the obvious intention of the testator.
    . 3. Wills, § 262

      —when words “issue of her body” deemed words of purchase and not of limitation. The intention of the testator in devising to his daughter “and the issue of her body” one-half of the personal property that he might own at his death, in one clause of his will, and, in another clause, giving to her one-half of all his real estate which he might own at his death to hold during her lifetime, and in providing that at her death it should he the property of her heirs at law, was to give the daughter a life interest in the real estate with remainder over to the daughter’s child, and that the personalty should be equally divided between the daughter and granddaughter, the words “issue of her body” being words of purchase and not of limitation.
    4. Wills, § 264

      —what is meaning of words “issue of her tody.” The words “issue of her body” are more flexible than the words “heirs of her body” and are more frequently interpreted as a synonym of children.
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the June term, 1917.
    Affirmed.
    Opinion filed October 22, 1918.
    TTtt.t, & Burlington, for appellants.
    Lane, Dryer & Brown, for appellee; Albert M. Kales, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Jacob A. Bohn, deceased, left a will which is as follows:

“First: I want all my just debts and funeral expenses paid.
“Second: I give, and bequeath to my wife, Amanda L. Bohn, the house we now occupy, one-half of all other real estate of every kind or description, and one-half of all personal property I might own at the time of my death.
“If at the death of my wife, there should be any of the real or personal property left, it should then be the property of my daughter, Bertha E. McDavid.
“Third: I give to my daughter, Bertha E. McDavid, one-half of all the real estate I might own at the time of my death, to hold during her lifetime, and at her death to be the property of her heirs at law.
“Fourth: I give to my daughter, Bertha E. McDavid, and the issue of her body, one-half of the personal property that I might own at the time of my death.
“I appoint my wife, Amanda L. and my daughter, Bertha E. McDavid, executrix without bond, and ask the court not to call for a report of their acts.”

Bertha E. McDavid, now Bertha E. Lipe, one of the appellants, at the time the will was drawn and at the death of the testator was his only child. She had as the only “issue of her body” one child, a daughter named Pauline Ruth McDavid, still in her minority. From the making of the will to the death of the testator all of the parties to this suit lived together in one household, as one family with the testator.

The controversy here is over the construction which must be given to the fourth clause of the will. Appellants contend that the words “and the issue of her body” contained in that clause must be construed to be words of limitation and that under that clause of the will so construed Bertha takes half of the testator’s personal property absolutely. Appellee takes the position that those words are words of purchase and that Bertha and her daughter Pauline take one-half of the personal property in common.

It is the recognized rule, for which no authority need be cited, that in construing wills the intention of the testator gathered from the language employed in the entire.will shall be given effect, unless in doing so violence is done to some recognized rule of law. Where, however, technical words or expressions are used and it appears that the will was drafted by a person unfamiliar with their use or technical meaning, a strict construction of them will not be carried to the extent of defeating the obvious intention of the testator. Johnson v. Askey, 190 Ill. 58; Smith v. Winsor, 239 Ill. 577; Armstrong v. Barber, 239 Ill. 402; Fenton v. Hall, 235 Ill. 557; Blackmore v. Blackmore, 187 Ill. 102.

The language of this will stamps it as the work of a novice. So far as the meaning of technical expressions used in it is concerned, very little can be gathered to aid in determining what the intention of the testator was. A careful study of the will, however, discloses that the testator in his own mind made a distinction beween a devise to a named person without qualification, and a devise to a named person and others. The second clause gives in terms one-half of all his property to his wife, and suggests that at her death, if any of it is left, Bertha should have it. We are not called upon to determine what estate the wife takes under that clause, but we call attention to the fact that it is not given to his wife and “her heirs” or to the wife and the “issue of her body.” Neither is the suggestion that Bertha should have what remained, if any, of the part given to the wife, qualified by any such words. The third clause undertakes to give to Bertha the other one-half of the real estate for life, remainder over to “her heirs at law.” Of course by the rule in Shelley’s case, Bertha took the fee in the property devised in that clause. The rule in Shelley’s case overrides the recognized intention of testators, bat its application emphasizes the fact that the testator’s intention was to provide for the other member of his family, his grandchild Pauline, the only heir at law of his daughter Bertha. Then comes the fourth clause, the one here in controversy, and the testator provides that the one-half of the personal property not given to the wife shall go to Bertha and the issue of her body. The issue of her body when the language was used was Pauline, the daughter of Bertha, the granddaughter of the testator and the remaining member of his family. We have no doubt that the intention of this testator, with regard to the portion of the property not given to the wife, was that Bertha should have a life interest in the real estate with remainder over to Pauline, and that the personal property should be divided equally between Bertha and Pauline. If he had intended to give the personal property as well as the real estate to Bertha for life with remainder over to Pauline, he would have coupled the personal property with the real estate in the third clause of the will. The fact that he disposed of the real estate and the personal property in separate clauses of the will is very persuasive of his intention to make distinct dispositions of the two kinds of property.

Appellants argue that even if the intention was to give half of the personal property to Pauline, yet the language employed, if it related to real estate, would create an estate tail, and that a limitation that would create an estate tail if applied to real estate when it is used in a devise of personal property passes the entire interest and therefore Bertha takes all and Pauline nothing of the personal property.

The language employed in the clause of the will under consideration is “I give to my daughter, Bertha E. McDavid, and the issue of her body,” etc. The controlling question is are the words “the issue of her body” words of limitation or of purchase? In other words, do they define the quantum of property she takes or the title which she has in it? Does Bertha take all of the personal property not bequeathed to the wife of the testator or does she take jointly in undivided equal parts? We are impelled by both reason and authority to hold that the true effect of this clause of the will is to give to Bertha and Pauline jointly the property described in that clause, and that upon the death of the testator Bertha and Pauline each became seized of an equal undivided one-quarter of the personal property of the testator.

“Our American doctrine favors a flexible construction of the word ‘issue’ according to the whole purport of the will under consideration, and while courts may take it as prima facie a word of limitation, like ‘heirs of the body’ in a devise, it becomes a word of purchase whenever the context prefers that meaning by using the words in a special or limited sense. And we may add that many of our local acts which change or abolish the rule in Shelley’s case turn ‘issue’ as well as ‘heirs’ or ‘heirs of the body’ into words of presumable purchase. Indeed, American courts at this day are obviously disposed not to apply the rigid, technical rule we have described against the testator’s apparent intent, to cases not literally within its scope. ’ ’

And in section 557 of the same work it is said:

“In bequests of personalty, on the other hand, there never was a technical rule requiring words of inheritance to be annexed to a simple gift; and technical expressions which have operated only to create a life estate or fee conditional, so far as land was concerned, will constitute ah absolute gift when applied to personal property. * * *
“But while it is settled by numerous cases, English and American, that the expression ‘heirs- of the body’ creates no estate tail in personalty, but rather confers the whole interest upon the first taker, it is doubtful whether the same distinction can avail where the word ‘issue’ is used instead. (Hawkins on Wills, 197; 2 Jarman on Wills, 566-573.) For a bequest to ‘A and his issue’ would be governed by the same rules, so far as issue are concerned, as a gift simply to ‘issue,’ at the same time yielding to clear indication that the will meant to give not to ‘A and the issue’ as one class, but to ‘A for life and then to the issue by way of remainder. ’ (Parkin v. Knight, 15 Sim. 83; Hawkins on Wills, 197, 198.) At all events, a bequest to a parent and his ‘children’ simply, gives prima facie to parent and children concurrently; although slight circumstances may show that the testator intended differently, for the rule in Wild’s case does not apply to personal property.”

Onr Supreme Court in the case of Butler v. Huestis, 68 Ill. 594 (603), said:

“If we are to interpret wills in the light of precedents, we ought to follow those that are most in harmony with the genius and laws of this country, and the manners and customs of its people. We ought rather to be guided by those that would most effectually do justice, and not by snch as would give an arbitrary and technical meaning to words never understood or contemplated by the testator, that may defeat all the objects of his beneficence, as manifested by the last solemn act of his life, in disposing of his property to those he may deem most worthy of his bounty.”

And this was quoted with approval in Webbe v. Webbe, 234 Ill. 448.

In the case of In re Coulden, L. R. [1908] 1 Ch. 320, the court said:

‘ ‘ The clause on which this question depends, though short, is exceedingly obscure. It is as foEows: ‘And on the death of either of my said executors I direct the survivor to sell the whole of my real and personal estate and cause the same to be equaEv divided amongst my then surviving children and their respective issue.’
“It is, I think, reasonably clear that, ‘then surviving’ means surviving at the period of distribution, and if the division directed had been a division amongst the testator’s then surviving children, without more, those children only who survived the period of distribution must have taken by force of the words used, however capricious such an intention on the testator’s part might have seemed to the court. The same result must follow if, according to the tru.e construction of the will, the words ‘and their respective issue’ are used as words of limitation defining the estate to be taken by the then surviving children. The first point, therefore, which arises for decision is whether the words ‘and their respective issue’ are words of limitation.
“In gifts of real estate the word ‘issue’ in a gift to A. and his issue, is, according to the decisions, prima facie a word of limitation creating an estate tail. The reason is that an estate tail in the ancestor is the only way of providing for all the issue of the ancestor, and the courts have assumed that in a devise to one and his issue the whole line of issue is intended. There is no similar reason for holding that ‘issue’ is prima facie a word of limitation in gifts of personal property. On the contrary, to hold ‘issue’ in such a case to be a word of limitation would, by conferring an absolute interest on the ancestor, deprive the issue of all benefits under the will. Therefore, I do not think that there is any rule of construction compelling me to hold that in gifts of personalty ‘issue’ is prima facie a word of limitation. That the word ‘issue’ may in gifts of personal property be a word of limitation no one doubts, but, in my judgment, whether it be so or not is purely a question of construction on each particular instrument, the court which has to interpret such instrument being unfettered by any general rule. Indeed, by a gift of personalty to A. and his issue, it seems to me more likely that a testator means the issue to take jointly with or by substitution for A. than that A. should take to the exclusion of his issue, and where there are words of division, such as a gift to divide between A. and his issue, it is, in my judgment, almost conclusive that the word ‘issue’ cannot be used as a word of limitation.”

The court in the case of State v. Welch, 175 Mo. App. 303, held that in a devise to “A” and the “heirs of her body” the words were words of purchase and not of limitation, and that under provisions- of the will there under consideration “A” took a life estate and the heirs of “A” took an estate in remainder.

The words “issue of her body” are more flexible than the words “heirs of her body” and áre more frequently interpreted as a synonym of children. Arnold v. Alden, 173 Ill. 229; 23 Cyc. 363; and the words “issue,” lawful issue, sons, daughters or children have been construed as words of purchase and not of limitation. Hanes v. Central Illinois Utilities Co., 262 Ill. 86; Schaefer v. Schaefer, 141 Ill. 337; Baker v. Scott, 62 Ill. 86; Butler v. Huestis, 68 Ill. 594.

Further discussion would unduly extend an already too lengthy opinion. We hold that under the fourth clause of the will Jacob A. Bohn, his daughter Bertha and his granddaughter Pauline take jointly an undivided one-half of the personal property of which the testator died seized. This is the same conclusion the Circuit Court came to. The decree of the Circuit Court is therefore affirmed.

Decree affirmed.


text:
    C. H. Whitesell and A. C. Mason, Appellants, v. W. A. Walters, Appellee.

      Sales—when duty of seller to notify buyer when he will deliver grain. Where no definite time is fixed in a contract for the sale of large quantities of grain when the same will be delivered, but that is left to the option of the seller, it is his duty to notify the purchaser when he will deliver the same so that the purchaser can be prepared to receive it, and until such notice is given, the seller cannot claim a breach of the contract if the purchaser is not ready to and does not receive it when it is tendered.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the November term, 1917.
    Affirmed.
    Opinion filed October 22, 1918.
    Charles M. Peirce, for appellants.

      Steeling, Livingston & Whitmore, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

Appellants contracted with appellee during the summer of 1916 to sell him 2,600 bushels of oats at 35 cents per bushel, to be= delivered at his elevator at Sabina, Illinois, from the threshing machine during the month of August or September, as the same should be threshed. In the latter part of August, 1916, appellants began threshing the oats and delivering them to appellee’s elevator. .After about 500 bushels had been delivered, appellee notified appellants that he could not take any more then until he could get some cars to ship them in. He finally took one more load and refused to accept any more at that time, or until he could arrange to care for them, on the ground that he had no place to put them, and claiming that the reason why he was not prepared to receive them was because he had no notice of the time appellants proposed to deliver them. In the meantime the price of oats had advanced from 6 to 6% cents per bushel. The total amount delivered was 541 bushels and 8 pounds. Nothing was ever paid for the oats delivered and appellants brought suit to recover the contract price therefor, and appellee claimed damages by way of recoupment for the failure of appellants to deliver the remainder of the 2,600 bushels contracted for. A verdict for appellants for $76.20 as the remainder due them, after deducting appellee’s claim for damages, was returned by the jury.

Where no definite time is fixed in a contract for the sale of large quantities of grain when the same will be delivered, but that is left to the option of the vendor, it is his duty to notify the purchaser when he will deliver the same so that the purchaser can be prepared to receive it. Until such notice is given, the vendor cannot claim a breach of the contract if the purchaser is not prepared to and does not receive it when it is tendered. Colvin v. Weedman, 50 Ill. 311; Rogers v. Van Hoesen, 12 Johns. (N. Y.) 222; Spooner v. Baxter, 16 Pick. (Mass.) 409.

On the 26th day of August, 1916, when the 541 bushels of oats were delivered, appellee told appellants that he wanted the oats, that he had bought them at 35 cents and desired to sell on the market, but appellants told him he had forfeited his contract, and the remainder of the oats were never delivered to appellee.

The record as presented here shows that appellants were in default and that appellee was damaged to the extent allowed by the jury. Some complaint is made about the rulings of the court on the admission of evidence and in refusing and giving instructions, but they are without merit. The judgment of the Circuit Court is affirmed.

IJudgment affirmed.


text:
    Victor Hemphill, Executor, Appellee, v. George F. Fanning, Executor, Appellant.
    1. Wills, § 226

      —When construed so as to carry out intention of testator. A' will must be construed so as to carry out the intention of the testator if the same can be lawfully done and not do violence to the language employed.
    2. Wills, § 364

      —when life tenant may use principal of personalty. A will by which a testator gives to his wife all the income and profits from all of the personalty of which he should die possessed and so much of the principal thereof as she shall request for her use, comfort, pleasure or benefit, and that, subject to the life estate of the wife, a certain son shall have a certain sum of money, if there be that much remaining at the death of the wife, and that the children of another son and his wife, who may be living at the termination of the wife’s life estate, shall have equal parts of the residue, must be construed as giving to the widow the right to have and use the principal of the fund, only for her own personal use and benefit, and then only when such use is necessary for her proper maintenance.
    Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed October 22, 1918.
    Edward C. Knotts and Jesse Peebles, for appellant.
    Alexander H. Bell, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

William Hounsley, deceased, died at Carlinville, leaving a wife, Charlotte Hounsley, a son Thomas, and Ida Hounsley, the wife, and Ruth and Wayne Hounsley, .the children of a deceased son, William H. Hounsley, who together constituted all of the persons whom he regarded as the natural objects of his bounty, or at least they were the only persons he mentioned in his will as beneficiaries thereunder.

Appellee is the executor of the will. The widow of the testator and the son Thomas lived in or near Carlinville. Ida, the widow of the deceased son, William H., lived in Colorado where her children also lived. In the will of William Hounsley the elder, deceased, he gives to his wife Charlotte for life the use of the house and lot in Carlinville, where he lived with his wife when he made the will and until his death in 1915. He also gave her for life the rents, profits and income from all the rest of his real estate, and all the incomes and profits from all his personal property. He then gives to her “absolutely, so much of the principal of said personal property as she shall request for her use, comfort, pleasure or benefit.” He then directs his executors to invest his “personal property” in interest bearing securities; to give to the wife at all events the income therefrom and under certain circumstances to give to her the principal thereof.

It is the construction of these provisions with reference to the use hy the widow of the principal of the personal estate that is involved in this litigation.

In the last part of February, 1916, appellee went to see Charlotte Hounsley, the widow, at the suggestion of Thomas, and she then made a verbal request of appellee that all or substantially aE of the personal property be given to her. Appellee declined to do so unless protected by an order of court, inasmuch as the amount she asked for was in excess of her personal needs. She then told appellee she wanted to give it to Thomas to equalize his share of the estate as far as she could. Thomas was present when the request was made for the personal property. At that time Charlotte had not used aE of the income from the estate and had used none of the principal.

On March 10, 1916, the widow filed in the Probate Court her petition for an order on appeEee as executor of her husband’s estate to turn over to her aE the personal estate in the hands of the executor except one note for $500 inventoried as doubtful. In that petition she states that she is thereby exercising the option contained in the clause of the wiE last above quoted. On April 4,1916, and before this petition had been heard, Charlotte, the petitioner, died, leaving a will dated March 8, 1916, which was afterwards probated. She was at the time of her death 77 or 78 years old. To both the will and the petition the signature of Charlotte is evidenced by her mark and is witnessed by Jesse Peebles. Whether these papers were signed by Charlotte in this way because of her lack of education or because of difficulties arising from the infirmities of years does not appear. After the death of Charlotte her executor has taken the position that the property included in the demand made by Charlotte on appeEee and particularly described in her petition filed in the Probate Court became, from the time of the first demand by her, her individual property to do with what she pleased, and that he as her executor is entitled to have it turned over to him to administer. The County Court entered an order in and by which the prayer of the petition was denied. From that order appellant took an appeal to the Circuit Court. Before a hearing on this petition was had in the Circuit Court a bill in chancery was filed in that court by appellee here to construe the will of William Hounsley, deceased, and the two cases were consolidated and heard as one case. The Circuit Court entered an order construing the will of the said William Hounsley, deceased, to give to the said Charlotte Hounsley no title in the principal of the personal property of the said testator that she could bequeath or give to any person; and held that the demand by her that it be turned over to her for any other purpose than her personal use was not within any right or power vested in her by said will; that upon her death what remained of the personal estate of the said testator, after paying the costs and expenses of administering his estate and the special bequest of $250 to Thomas, became the property of the widow and children of William H. Hounsley, the deceased son of the testator, and that the executor of the estate of Charlotte was not entitled to administer upon it.

The whole scope of the will discloses a purpose on the part of the testator first of all to suitably provide for his wife, and next to have Ruth and Wayne Hounsley, the children of his deceased eldest son William H. Hounsley, eventually receive the great bulk of his estate. To that end he has carved out life estates and uses for his wife and in one instance a remainder for life to his son Thomas, and has then taken care to provide that subject to these life estates and uses these grandchildren shall have, it all, except $250 of the personal estate which he gives to his son Thomas-outright, and one-third of the personal property remaining after the death of Charlotte and the payment of the special legacy of $250 to Thomas, which is given to Ida Hounsley, and a one-third interest in the house and lot where he lived and died, which is also given to Ida Hounsley, the widow of his son William H. Even the real estate in which Thomas is given a life estate subject to his mother’s life use the will provides shall go, in the end, to these children of his deceased son William, provided Thomas shall die childless. He has even taken pains to provide that what he gives to his wife shall be in lieu of all her statutory rights in his estate. It was his manifest purpose, as disclosed by a study of his whole will, to leave no part of his property undisposed of and to so dispose of it that he knew who was going to get it. For some reason undisclosed, it appears to have been his fixed purpose that Thomas should have but $250 absolutely. There is no intention on the part of the testator manifested anywhere in the will to give to the widow Charlotte any part of the principal of the personal property for any other use or purpose than her personal use for her personal comfort, pleasure or benefit.

The will must be so construed as to carry out the intention of the testator if the same can be lawfully done and not do violence to the language employed.

The first part of the devise in question is perfectly clear. It gives to the widow for life “all the incomes and profits from all of the personal property” of which he should die possessed. Then follows this language:

“And to her, my said wife, I give and bequeath absolutely, so much of the principal of said personal property as she shall request for her use, comfort, pleasure or benefit. * * * That my said executors invest the personal property of my estate in interest bearing securities, and keep the same invested in manner and form as to their judgment seems safe, and pay the income derived therefrom, less all proper charges against the same, to my said wife, promptly upon its receipt. And it is my further will and direction that in case my said wife shall desire any part of the principal of my said personal estate for her use, comfort, pleasure or benefit, then, upon her request, my said executors shall promptly convert the same into money and pay the same to my said wife, or in appropriate and legal manner transfer the title to said personal property to my said wife.
“Third: Subject to the life estate of my said wife as aforesaid I give and bequeath unto my son, Thomas Proctor Hounsley, the sum of Two Hundred and Fifty Dollars ($250) if there shall be that much of my personal estate remaining at the death of my said wife, and, subject as aforesaid, I give and bequeath unto my grandchildren, the children of my son, William H. Hounsley, now deceased, and his wife, Ida, who may be living at the termination of my said wife’s life estate in said personal property, in equal parts, all of the rest and residue of my personal property then remaining. ’ ’

This bequest is in entire harmony with the general scope of the will. It first provides for the widow, next a small special bequest for Thomas, and then gives the bulk of the balance to the children of William, this time giving Ida, their mother, a share with them.

The only language used in the will that gives rise to any chance for misunderstanding is the following:

“To her, my said wife, I give and bequeath .absolutely, so much of the principal of said personal property as she shall request for her use, comfort, pleasure or benefit. * * * And # * # in case my said wife shall desire any part of the principal of my said personal estate for her use, comfort, pleasure or benefit, then, upon her request, my said executors shall promptly convert the same into money and pay the same to my said wife, or * * * transfer the title * * * to my said wife. ”

Language of the same general import has been construed by the courts of this State to give to the widow the right to have and use the principal of the fund, only for her own personal use and benefit, and then only when such use is necessary for her proper maintenance. Griffin v. Griffin, 141 Ill. 373; Henderson v. Blackburn, 104 Ill. 227; Clark v. Clark, 172 Ill. 355, and that construction is strengthened when there is a bequest of the remainder of such property to some one else. Walker v. Pritchard, 121 Ill. 221; Welsch v. Belleville Sav. Bank, 94 Ill. 191.

There can be no doubt that by the language quoted the testator intended to make sure that his widow in her last days should have such personal comforts, pleasures and benefits as she should desire and the use of his property could purchase for her. On the other hand, it is quite clear that he desired to direct who should have what should remain of his property after his widow had been so cared for. That she did not need the personal property in question for her own personal use, comfort, pleasure or benefit is shown by the fact that she at no time used all of the income from the various properties left by her husband, and even at the time of her death there remained in the hands of the- executor some of such income unexpended. That she did not want it for any of these purposes named is shown by the fact that when she demanded it from appellee she told him in substance that she wanted it to give to Thomas to equalize him with the rest in the distribution of her husband’s estate. In other words, she proposed to prevent the carrying out of the intention of her husband as expressed in his will by possessing herself of the personal property that he intended should go to wife and children of William H. Hounsley, deceased, and turning it over to Thomas, who, for some reason known to the testator, he did not wish should have it. Whether the idea of so diverting this personal property originated with her or some one else is wholly immaterial to the determination of this case. It was equally abortive in either case.

The decree of the Circuit Court is affirmed.

Decree affirmed.


text:
    James J. Finn, Plaintiff in Error, v. Fannie O. Wetmore, Defendant in Error.
    1. Equity—when jurisdiction of person of former master in chancery acquired in foreclosure proceedings. Jurisdiction of the person of a former master in chancery was acquired in foreclosure proceedings, by the terms of the decree of which the master was required to pay certain bonds, by service of notice of pendency of a petition for a citation to compel him to pay the same and of the substance of the contents and prayer thereof.
    2. Equity—when question of sufficiency of notice of pendency of proceedings against master in chancery waived. The question of sufficiency’ of service of notice of pendency of a petition for a citation to compel a master in chancery to pay bonds required to be paid under the terms of a foreclosure decree is waived by answer and plea to the bill.
    3. Equity—when jurisdiction of subject-matter acquired in proceedings against master in chancery to compel payment of bonds pursuant to foreclosure decree. Jurisdiction of the subject-matter was acquired by the court when a petition for a citation to compel a master in chancery, who had sold certain property under a foreclosure decree, to pay certain bonds, was filed in which it was alleged that the master had in his hands funds that came into his hands as master in chancery, which he refused to turn over to the petitioner, to whom they rightfully belonged.
    4. Equity, § 394

      —what is nature of office of master in chancery and right of supervision over acts by court. A master in chancery is an officer of the court, and in all matters where his power to act is derived from an order of court, such as an order to sell property in a foreclosure proceeding and distribute the proceeds of such sale, he is a part of the court, and his acts are subject to the supervision of the court to the end that the orders of the court shall be performed.
    5. Equity, § 394

      —when court has jurisdiction to compel master in chancery to turn over money. Where a master in chancery has received by virtue of his office, or has had come into his hands in the course of some legal proceeding, money or property which he has no equitable right to retain, the court in which such proceeding is pending has jurisdiction, on petition or motion of the party entitled thereto entered in the same suit, to order the monee or property returned to the party to whom it belongs, even though his term of office has expired.

      6. Tbusts, § 239

      —when right of action against trustee not tarred ty lapse of time. Neither the statute of limitations nor laches will, as between the trustee and cestui que trust, bar an action to recover funds held as a direct or express trust.
    7. Tbusts, § 239

      —when lapse of time is defense in ease of resulting trust. Neither the defenses of the statute of limitations nor laches will, as between trustee and cestui que trust, avail in case of a resulting trust until the trust is repudiated.
    8. Tbusts, § 239

      —what is trust fund, right to recover which not tarred ty laches or statute of limitations. Money in the hands of a master in chancery after the rendition of a foreclosure decree requiring payment of certain bonds by him is a trust fund, and, where no disavowal of the trust is made until immediately before the filing of a petition for a citation in the foreclosure proceedings to compel him to pay such bonds, the action is not barred by laches or the statute of limitations, regardless of whether the trust be classed as an express or resulting trust.
    9. Equity—what is potent proof that tonds not paid ty master in chancery pursuant to foreclosure decree. Possession of bonds by the owner is potent proof of the falsity of a claim by a master in chancery that he paid such bonds pursuant to a decree in foreclosure proceedings requiring such payment and the taking up of the bonds.
    Error to the Circuit Court of Macon county; the Hon. William: K. Whitfield, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 22, 1918.
    Redmon, Hogan & Redmon, for plaintiff in error.
    James V. Kelly and Vail, Pogue & Allen, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Plaintiff in error in 1899, then being master in chancery in Macon county, sold certain property under a decree of foreclosure entered in the case of American Trust & Savings Bank v. City Electric Ry. Co., then pending in the Circuit Court of that county, and received the money therefor. Thereafter he, as such master in chancery, was by decree of that court ordered to pay out those funds so received to the holders of bonds described in the trust deed that was foreclosed the sum of $304.01 for each of said bonds ‘‘upon the presentation of the same, and that he endorse such payment upon each of such bonds.” Fannie O. Wetmore, the defendant in error here, was then the owner and holder of seven of those bonds as executrix. She was not a party to the foreclosure proceeding and had no notice or knowledge of such proceeding until May 2, 1914, at which time she demanded of plaintiff in error that he pay and take up the seven bonds held by her. This he did not do, and she caused the case in which the foreclosure decree was entered to be redocketed, and filed therein her petition for a citation against him to compel him to pay the same. After some preliminary motions had been made by plaintiff in error, he in January, 1915, filed his answer to the petition, in which he states that he is a resident of Winnebago county and claims that the courts of Macon county have no jurisdiction over him in the pending proceeding; that he has not been master in chancery in Macon county since 1903; that prior to his retirement from the office of master in chancery he had fully paid out and distributed all the moneys that had been in his hands as the proceeds of the said foreclosure sale, and that since that time none of such moneys had been in his hands; and that defendant in error is guilty of laches. He also filed a plea of the statute of limitations. Finally in the May term, 1917, of the Circuit Court in Macon county, after several amendments had been made to the petition for the citation and the original answer and plea filed to the original petition had been ordered to stand as his answer and plea to the petition as amended, the cause was heard and resulted in an order that plaintiff in error pay to defendant in error $2,128.14 and interest from May 2,1914, the time on which she demanded payment of her bonds, at 5 per cent. It is to review that order that this writ of error is prosecuted.

The jurisdiction of the court to hear and determine the issues here made is denied by plaintiff in error. Jurisdiction of the person was acquired in this case by the service of notice of the pendency of the petition for the citation and of the substance of the contents and prayer thereof. Metropolitan Trust & Savings Bank v. Perry, 194 Ill. App. 277. But in case no adequate service had been had on plaintiff in error, the fact that he has appeared and filed his answer and plea to the bill has waived all question of sufficient service. Metropolitan Trust & Savings Bank v. Perry, supra.

Jurisdiction of the subject-matter was acquired by the court when the petition was filed, in which it was alleged that plaintiff in error had in his hands funds that came into his hands as master in chancery, which he refuses to turn over to the petitioner, to whom it rightfully belongs. A master in chancery is an officer of the court, and in all matters where his power to act is derived from an order of court, such as an order to sell property in a foreclosure proceeding, or an order to distribute the proceeds of such sale, he is a part of the court, and his acts are subject to the supervision of the court to the end that the orders of the court shall be performed. Where a clerk, master in chancery or other officer of the court has received by virtue of his office, or has had come into his hands in the course of some legal proceeding, money or property which he has no equitable right to retain, the court in which such proceeding is pending has jurisdiction, on petition or motion of the party entitled thereto entered in the same suit, to order the money or property returned to the party to whom it belongs, even though his term of office has already expired. Baltimore & O. R. Co. v. Gaulter, 165 Ill. 233; Metropolitan Trust & Savings Bank v. Perry, 194 Ill. App. 277.

Neither the statute of limitations nor laches will, as between the trustee and cestui que trust, bar an action to recover funds held as a direct or express trust. Chicago & E. I. R. Co. v. Hay, 119 Ill. 493; Albretch v. Wolf, 58 Ill. 186. Neither will those defenses avail in case of a resulting trust until the trust is repudiated. Reynolds v. Sumner, 126 Ill. 58; Springer v. Springer, 114 Ill. 550; Chicago & E. I. R. Co. v. Hay, 119 Ill. 493; Perry on Trusts (6th Ed.), pages 1408, 1411. The money in the hands of plaintiff in error was a trust fund, and under the facts in this case, where if there was any disavowal at all, it was immediately before the petition in this case was filed, and it is immaterial whether the trust be classed as an express or resulting trust. The action is not barred either by laches or the statute of limitations.

Plaintiff in error does not deny that he had the money at one time, but claims to have distributed it in accordance with the order of court. He, however, fails in his proof of payment or distribution. He has his word alone with nothing to corroborate it. There is no report of his as master in chancery, either in the case in question or as a master’s term report, that shows such payment, neither is there any record of such a report, neither has he any receipt or check or stub of a check that he even pretends refers to this case. On the other hand, defendant in error emphatically denies that her bonds have ever been paid, and she has the bonds themselves, on which she bases her claim, to corroborate her. These bonds the order of distribution directed should be taken up by the master in chancery when the same were paid by him. Their possession by defendant in error is potent proof of the falsity of his claim of payment.

The order of the Circuit Court is affirmed.

Order affirmed.


text:
    Jacob Carstens, Appellee, v. William C. Reinecke, Appellant.
    1. Account, § 40

      —when cause should he referred to master to take evidence and state account. On a bill for an accounting, particularly when the transactions cover a number of years and involve charges, accounts, loans, accruing interest and payments, the court should first settle the rights of the parties to an accounting as well as the basis of the same, and should then refer the cause to a master in chancery to take evidence and state an account, leaving such of the parties as are dissatisfied to file objections to such report before the master, and have them heard and disposed of by him, and, if still dissatisfied, to except to his report in the Circuit Court.
    2. Account, § 39

      —what are requisites of reference to master to take evidence and state account. In case of an involved and intricate accounting, a reference to a master in chancery to take evidence and state an account requires more than a statement of what the respective parties claim; it includes a finding of what the rights of the parties are and what either of them is entitled to receive from the other.
    Appeal from the Circuit Court of Greene county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed October 22, 1918.
    Sumner & Reardon and Thomas Henshaw, for appellant.
    F. A. Whiteside, Fred A. Duhadway and W. J. Chapman, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

This is a bill filed by appellee for an accounting. Appellant answered the bill. So far as we have been able to discover, the question was never raised in the Circuit Court whether the facts on which this bill was based were such as to warrant the filing of a bill for an accounting, and as to that question we express no opinion.

After issue was joined the court referred the case to the master in chancery to take and report the evidence without his conclusions either of law or fact, and that was done. Later the court directed the master to file a detailed statement of the claims of the respective parties but still reserved the determination of all questions for the court. The master then took and reported the evidence without any conclusions either of law or of fact, and the court, thereafter made its findings and entered its decree. From that decree this appeal has been perfected, and has been presented to this court. The abstract of record contains nearly 300 pages, composed almost entirely of accounts-in various shapes, many of which are from ten cents to one dollar in amount, also includes loans and payments in large sums, and we are asked by this appeal to go through this mass of figures and state an account between these parties. It is evident that the duties of this court have been misconceived. On a bill for an accounting, particularly when the transactions cover a. number of years and involve charges, accounts, loans, accruing interest and payments, the court should first settle the rights of the parties to an accounting as well as the basis of the same, and should then refer the cause to a master in chancery vto take evidence and state an account, leaving such of the parties as are dissatisfied to file objections to such report before the master, and have them heard and disposed of by him, and, if still dissatisfied, to except to his report in the Circuit Court. In that way the contested matters can be placed before the trial court, and later, if necessary, before a court of review in a concrete form so that the same may be disposed of understandingly. It is error for a court to hear such a case without a reference to a master to take the evidence and state the account. That sort of a reference requires more than a statement of what the respective parties claim. It includes a finding of what the rights of the parties are and what either of them is entitled to receive from the other. Moss v. McCall, 75 Ill. 190; Mosier v. Norton, 83 Ill. 519; Moffett v. Hanner, 154 Ill. 649; Garlick v. Mutual Loan & Building Ass’n, 129 Ill. App. 402.

The decree is reversed and the cause is remanded to the trial court with directions to refer this cause to' the master in chancery to state an account between these parties.

Reversed and remanded with directions.