text:
    William Funk, Appellee, v. Fire Association of Philadelphia, Appellant.
    Gen. No. 5363.
    1. Motions fob new tbiae—when predicated upon absence of counsel will not be granted. If a cause is tried in its regular order the mere absence of counsel does not require the granting of a new trial; if the failure of counsel to attend is due to his own negligence then likewise a motion for a new trial need not be allowed because of such absence.
    2. Instjbance—when proofs of loss waived. Submitting the question of the amount of the loss to arbitration waives the requirements of the policy regarding proofs of loss, and this is true where an award is set up as a defense although the policy stipulates that no provision shall be waived except by written endorsement.
    3. Instjbance—what defense not available under general issue. A defense that in an action upon an insurance policy the amount of the recovery should not exceed the amount of the award fixed by arbitration is not available under the general issue.
    4. Instjbance—when defense that loss was payable to mortgagee not available. If the declaration upon an insurance policy avers that the plaintiff owned the property damaged the fact that the policy sued on shows that the loss was payable to a mortgagee named in a loss clause is not available to the company if the declaration was not challenged as defective and no special plea filed.
    Assumpsit. Appeal from the Circuit Court of Kendall county; the Hon. Mazzini Sltjsseb, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Ritsher, Montgomery, Hart & Smith, for appellant.
    John M. Raymond and John K. Hewhall, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

William Punic, appellee, sued appellant, the Pire Association of Philadelphia, in assumpsit to recover a loss by fire on property insured by it. The declaration alleged that appellee was interested in the property insured and averred its destruction by fire, and that proofs of loss were furnished appellant, and set out the policy in Ticec verba. Appellant filed the general issue only, and a trial resulted in a verdict for appellee for $350. Counsel and witnesses for appellant were not present at the trial. Motions for a new trial and in arrest of judgment were overruled, and the Association prosecutes this appeal.

In support of the motion for a new trial the affidavits of appellant’s counsel and agent were filed. Counsel’s affidavit stated that he and appellant’s witnesses resided in Chicago and set up the cause of their absence from the trial, and that, in his opinion, appellant had a good defense to the merits of the cause. The agent’s affidavits also stated that appellant had a meritorious defense to the cause; that appellant and appellee had made an agreement for submission to arbitration, appointing appraisers, according to the provisions of the policy, which agreement specifically stated that it should not he taken as a waiver of the conditions of the policy; that the appraisers qualified and made an award for appellee’s loss of $169.54; that appellee never furnished appellant proofs of loss, and that appellant never waived the furnishing of such proofs.

Counsel’s affidavit simply discloses that his other professional engagements prevented his attendance upon the trial. It does not show that'the cause was tried out of its order or that counsel was in any wise misled by any one connected with the case or court. In the absence of any showing to the contrary, the presumption is that the case was tried when reached regularly on the call. Courts cannot anticipate counsel’s other professional engagements, and await their pleasure or convenience. If counsel’s absence from the trial was negligence, then, as has frequently been decided, such negligence is charged to the appellant itself. The negligence of the attorney is the negligence of the client. A new trial will not be granted because the trial was had in the absence of the defendant and his counsel when the cause for which the new trial is claimed is attributable to the negligence and inattention of the party claiming such new trial. Koon v. Nichols, 85 Ill. 155; Bruson v. Clark, 151 Ill. 495.

Counsel argues that the record does not disclose sufficient evidence to support the verdict. There is absence of proof that appellee furnished appellant with proofs of loss. Submitting the question of the amount of loss to. arbitration waived the ■ requirements of the policy regarding proofs of loss. Commercial Union Assurance Co. v. Parker, 119 Ill. App. 126. This is true where an award is set up as a defense although the policy stipulates that no provision shall be waived except by written endorsement. Carroll v. Girard Fire Ins. Co., 16 Insurance Law Journal, page 784. There was no plea setting up the arbitration nor the agreement that the submission should not waive the provisions of the policy. Hence appellant was not harmed by the denial of the motion for a new trial.

Appellant’s main contention is that appellee’s recovery should not exceed the amount of award fixed by the arbitrators. Such a defense is not available under the general issue and it was not pleaded specifically. There was no error in denying the motion for a new trial.

Attached to the policy was the following clause: “Loss, if any, payable to Mary Cliggitt, Mortgagee, as her interest may appear, subject, nevertheless, to all the conditions of the policy.” The declaration averred that appellee owned the property damaged. We regard this averment as sufficient to show his right to maintain the suit. If the clause above quoted affected appellee’s right of recovery, it rendered the declaration defective, which could only have been questioned by demurrer. This was not done, and if a defect it was cured by the verdict. City of East Dubuque v. Burhyte, 173 Ill. 553; Illinois Steel Co. v. Ostrowski, 194 id. 376; Sargent Co. v. Baublis, 215 id. 428. Moreover, it is held in St. Paul F. & M. Ins. Co. v. Johnson, 77 Ill. 598, that, where the owner of a house insured the same, and the policy contained a clause, “loss, if any, payable to A, as she shall make appear,” and it appeared that A’s only interest was that of a mortgagee for a debt due her from the assured, the assured had a legal right to sue for a loss in his own name, as the whole loss was not payable to A but only to the extent of her mortgage. Therefore, there was no error in denying the motion in arrest of judgment.

Finding no reversible error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Willis

license: Public Domain

text:
    Andrew M. McLeish, Appellee, v. Alfred J. Hanson et al., Appellants.
    Gen. No. 5366.
    1. Foreclosure—when defenses not available. If a party gives a note for pre-existing debt and secures it by mortgage, he cannot, in an action upon such note or in an action to foreclose such mortgage, set up a claim or defense which existed in his favor and of which lie knew at the time he gave such note and mortgage.
    2. Mortgages—what consideration sufficient to support. A preexisting debt is a good consideration for a note and mortgage.
    Bill in chancery. Appeal from the Circuit Court of Boone county; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Opinion modified and rehearing denied November 18, 1910.

      Oertorari denied by Supreme Court (making opinion final).
    B. A. Knight, for appellant.
    Fisher & North, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

On September 24, 1907, Alfred Hanson and Ella Hanson, his wife, executed and delivered to Andrew M. McLeish a promissory note for $3,500 payable on or before December 15, 1908, with interest at six per cent, per annum, payable semi-annually, and a mortgage on certain farm lands in Boone county to secure the same. On January 11, 1909, McLeish filed a bill in the Circuit Court of said county, making the Hansons and others parties defendant. The bill set up the execution of the note and mortgage, and averred the delivery thereof to the complainant, and that the note was due and unpaid, and prayed that the said Alfred J. Hanson and Ella Hanson be decreed to pay the amount found to be due, on an account to be taken, and in default of such payment that the mortgaged property be sold to satisfy the debt. The Hansons filed an answer and a cross bill. A demurrer was sustained to the cross bill. The answer admitted the execution of the" note and mortagage and their delivery to-the complainant, but set up as a defense to the note, that it was given to take up two notes, one for $2,000 and the other for $1,698 given to one Jesse Dimond, who, the answer averred, had obtained them in a certain real estate transaction through fraudulent representations, and that complainant with knowledge of such fraudulent representations, purchased the notes after the $1,698 note matured. The bill was taken as confessed as to all the other defendants. There was a replication to the answer, and the cause was referred to the master to take proofs, and report his conclusions of law and fact. He reported that there was due on the note $3,500 and interest at six per cent, from September 24, 1908, and that complainant was entitled to the relief prayed for in the bill. The abstract does not show the decree, but the record discloses that the court approved the master’s report and decreed that the Hansons pay McLeish the amount due on the note and the further sum of $200 as solicitor’s fees, in all $3,938.58, within five days and that in default of payment the mortgaged premises be sold to satisfy the decree. From this decree the Hansons prosecute this appeal. Ho complaint is made of the allowance for solicitor’s fees.

The note in suit was given by the Hansons to take up two notes once owned by Dimond, one for $2,000 dated April 28, 1905, and one for $1,698 dated December 29, 1906. Complainant purchased the $2,000 note for its full value before maturity without notice to any defense thereto, and the $1,698 note for a like consideration, after maturity, and after appellant, Alfred J. Hanson, had said he had no defense to it. Thére is some proof to the effect that Alfred J. Hanson said he wanted complainant to buy it. After the two notes came into complainant’s possession, the time of payment was extended at- the request of Alfred J. Hanson and, as a consideration for such extension, Hanson paid interest thereon, and gave complainant a mortgage on Dakota lands to secure the $2,000 note. After the notes came due on the extension, and complainant had commenced a suit in the Winnebago Circuit Court to enforce their collection, the Hansons gave complainant the note and mortgage in suit and another small note to take up the two notes. The suit was dismissed and the mortgage on the Dakota lands was surrendered. Afterwards, Alfred J. Hanson paid complainant interest on the note in suit up to September 15, 1908, and paid the small note.

Appellants do not seriously claim a defense to that portion of the decree based upon the $2,000 note, but contend that they are entitled to a decree denying foreclosure as to the amount of the $1,698 note.

The real estate transaction between appellant, Alfred J. Hanson, and Dimond, which, it is claimed, tainted the notes with fraud, was the purchase of a farm by Hanson from Dimond in Franklin county, Illinois. The evidence shows that Hanson first purchased a one half interest in the farm and later purchased the other half. The $2,000 note was dated the same day Dimond conveyed the second half of the farm to Hanson, and partook of that transaction. The $1,698 note was dated December 29, 1906, twenty months after the farm deal was closed and the preponderance of the evidence is that it did not partake of the real estate transaction which Hanson claims was tainted by Dimond’s misrepresentations. The most reasonable conclusion to be drawn from the evidence is that it was given for moneys borrowed' from the Forrest City Bank and afterwards came into -Dimond’s possession, but, be that as it may, there is no evidence tending to establish appellants’ right to have foreclosure denied as to that amount.

Moreover, had the evidence shown that the $1,698 note was in fact tainted by fraud through Dimond’s real estate deals with Hanson, and that appellee had knowledge of such fact, this would not constitute a defense here, for the evidence is clear that at the time the Hansons executed the note and mortgage in suit, they knew of the failure if any on the part of Dimond to perform undertakings he had had with them growing out of the real estate transaction, and the rule is that where such claims are fully known to the maker when he gives a note, he will be precluded from urging them as a defense to a suit upon the note. Hill v. Parsons, 110 Ill. 107; McCartney v. Washburn, 52 Ill. App. 540; Swartzbaugh v. Swartzbaugh, 81 Ill. App. 196; Babcock v. Farwell, 146 Ill. App. 307. The pre-existing debt was a good consideration for the note and mortgage. McIntyre v. Yates, 104 Ill. 491-503. Although the indebtedness secured was not that of appellant, Ella Hanson, the objections urged to the decree are no more valid, urged in her favor, than when made it behalf of her hubsand. Ho further consideration was required to make her release of dower and homestead valid, than that which existed and made her husband’s act effective. Her joining in the mortgage was merely in release and waiver, and did not convey the title. Phillips v. City of Springfield, 39 Ill. 83; Sloniger v. Sloniger, 161 Ill. 270; First National Bank v. Davis, 146 Ill. App. 462. If any consideration beyond her husband’s pre-existing indebtedness was necessary, it was supplied by the forbearance extended to him. First National Bank v. Davis, supra.

The cross bill only sought relief as to the defense set up in the answer, and the demurrer was properly sustained thereto.

The decree is affirmed.

Affirmed.


text:
    Annie Jopp et al., Appellees, v. R. H. Fairburn et al., Fortune Bros. Brewing Company, Appellant.
    Gen. No. 5373.

      Verdicts—when set aside on review. A verdict not sustained by the evidence will be set aside on review.
    Action in case. Appeal from the Circuit Court of Lake county; the Hon. Chaeles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Obvis & Beaubien, for appellant.
    E. Y. Obvis, for appellees.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This suit was brought under section 9 of the Dram-Shop act, by Patria Jopp against R. H. Eairburn and Fortune Brothers Brewing Company, to recover damages for injuries to her means of support by reason of the death of Barthomic Jopp, her husband, alleged to have been caused by intoxicating liquors sold to him by Fairburn in a building owned by Fortune Brothers Brewing Company. A demurrer was sustained to the declaration and leave was given to amend the writ by adding Annie Jopp, Thomas Jopp and Joseph Jopp, children of Barthomic Jopp,, as parties plaintiff, and to file an amended declaration. An amended declaration was filed, and a trial resulted in a verdict of $2,500 for plaintiffs. A motion for a new trial was denied, and judgment was entered on the verdict, from which Fortune Brothers alone prosecute this appeal.

Appellant seeks a reversal of this judgment on the ground that there was no competent evidence that appellant owned the building in which the liquor was sold to Jopp, and that there was no competent proof that appellant bad knowledge that intoxicating liquors were sold in the building; and that the court erred in refusing to give an instruction on the subject of exemplary damages, requested by appellant.

Counsel for appellant were notified to produce upon the trial, a lease, a deed, and two chattel mortgages. These documents were not produced, and secondary evidence of the contents of the deed and chattel mortgages'was resorted to in an attempt to prove appellant’s ownership of the building, and its knowledge that intoxicating liquors were sold therein. The record of a deed, which, appellee claimed, vested the title to the premises upon which the building stood in appellant was admitted in evidence. It described lot one and the east half of lot two in John F. Mullery’s subdivision of certain land in South Waukegan. The block number was omitted, and the evidence showed that the subdivision contained three blocks, in each of which, were lots numbered one and two. The description fitted equally well three different localities. Appellee., over appellant’s objection, was permitted to introduce oral evidence to show that the buildings were in block two of Mullery’s subdivision, but such evidence left it still a matter of conjecture as to what block the lots were in. “For the purpose of sustaining a grant, a deed which is reasonably certain, and purports to convey a title, may be introduced in evidence, and the description aided by extrinsic evidence. But such evidence must not enlarge or vary the terms of the instrument.” Colcord v. Alexander, 67 Ill. 581. It can only be introduced for the purpose of explaining whatever ambiguity there may be in the terms actually used. Here, the extrinsic evidence was not introduced to explain an ambiguity in the description, for the purpose of sustaining a grant, but to supply an element missing from the description, material and necessary to locate the premises. This evidence was not sufficient, and there was no proof that appellant owned 'the building.

To charge appellant with knowledge that intoxicating liquors were sold in the building in question, the record of two chattel mortgages, purporting to have been given by R. H. Fairburn to appellant, and to convey chattels situated in a saloon on Twenty-second, street, conducted by Fairburn, and owned by appellant, was admitted in evidence. Appellee argues, that, in accepting the mortgages, appellant admitted that Fairburn was selling intoxicating liquors in its building. There was no proof that the mortgages were delivered to appellant, or accepted by it, or that it knew anything about them, or knew that they were on record, or that it exercised any authority over the property described .therein. In Thompson v. Dearborn, 107 Ill. 87, it was held that, “The act of recording a deed cannot amount to a delivery and acceptance when there does not appear an assent to or knowledge by the grantee, of the act.” In the absence of proof that the chattel mortgages were delivered to appellant, or that it knew anything about them or knew that they were" on record, or that it exercised acts of ownership over the property, it cannot be held to have admitted the recitals in the mortgages, as contended by appellant. Therefore, there was no proof that appellant knew that intoxicating liquor was sold in the building in question.

Appellant’s instruction on the subject of exemplary damages was properly refused, because it assumed the truth of certain facts, as to some of which there was no evidence, and all of which were for the jury to determine.

There being no sufficient evidence to sustain the judgment against appellant, it is reversed and the cause remanded.

Reversed and remanded.


text:
    F. A. Campbell, Appellant, v. Abalino C. Bardwell, Appellee.
    Gen. No. 5376.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.

      Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. E. S. Fabrand, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    John E. Ebwin, for appellant.
    E. E. Wingebt, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This suit was brought by F. A. Campbell, doing business in Chicago as the Central Detective Agency, against Abalino C. Bardwell, a resident of Dixon, to recover a balance of $478.70 claimed to be due for detective services. A trial resulted in a verdict and judgment for Bardwell, from which judgment Campbell prosecutes this appeal.

The evidence shows that the town of Dixon had adopted the local option law, that a league had been formed, and a fund raised to secure evidence, upon which to convict violators of the law. Appellee was the agent of the league and custodian of its funds. Appellant solicited, by correspondence, employment by the league to secure evidence of illegal liquor selling, stating that he did the law and order league work of Chicago, and most of the anti-saloon league work of the State; that he would guarantee nothing but first class service and good results. Appellee replied that they were unfavorable to the use of detectives unless fortified by strong evidence, and asked what his charges would be, and how many men he thought it would be advisable to set to work. Appellant replied that his charges were $5 per day and expenses; and that two men would be sufficient to do the work; that he would send nothing but experienced and reliable men who would “deliver the goods.” It was agreed that appellant should send out operators to secure evidence, and he suggested that they engage in the chicken business, and said he thought it would meet the expenses of the undertaking. It was agreed that the men go into that business and rent a place for that purpose. It was understood that appellee should have nothing to do with the business or the work of the men; that he was not to know who the detectives were; and they were not to know that he had any interest in their work. They were to work under the direction of appellant from Chicago and were to report to him. The contract was made the last of June, and the grand jury were to meet September 21. On July 8, appellant sent a man named Anderson to Dixon. It was not claimed that he was a detective, but that he was an excellent man in the poultry business. On or about July 13, he was joined by a man named Elms who was to operate as a detective, and August 16, F. A. Campbell’s son, was sent out to replace him. Elms admitted, that, until Campbell came, no drinks were obtained in Dixon, but the first daily report made three days after Campbell’s arrival shows that they got beer. On September 15, at his son’s request, appellant sent out two men, Mays and Heard, neither of whom made reports that ever reached appellee, nor did they appear as witnesses. They rendered no service of any value to appellee or the cause which they represented, and possessed none of the qualifications which appellant agreed to furnish. The most that they did was to charge $5 a day for services and run up heavy expenses for cigars and many other things, including drinks at a time when they made no reports that they found any intoxicating liquor being sold in the town. Appellant sent these men without knowledge of their qualifications, and he conceded that they turned out to be dead beats, and that Mays deserved to be indicted.

The evidence shows that instead of the poultry business paying the expenses of the undertaking it was conducted at a loss, and nothing was done by appellant’s agents to procure any evidence of the violation of the law until about two or three weeks before the grand jury met, when they secured sufficient evidence so that a number of indictments were returned thereon. Some trials were had on the indictments, but there were no convictions, and only one plea of guilty. On October 16, appellant told appellee that he still owed him $516. Hot understanding how there could be that amount due, appellee began to investigate and to check over the account, which he had not done up to this time, relying upon appellant’s honesty, and became convinced that he had already overpaid appellant. Some correspondence followed, and on May 28 of the next year, at appellee’s request, appellant rendered an itemized account, showing a balance due of $516.17. It is true that the record discloses letters from appellee admitting a further liability, at any fate, for some part of the balance sued for. But these letters were written before he had seen the account and ascertained the manner in which he had been treated by appellant. When he had the entire account before him and ascertained the real facts, he refused to pay the balance, and we are of the opinion under all the circumstance's appearing in evidence, that he is not concluded by the statements in his letters.

We are satisfied that the jury were warranted in finding that appellant did not in good faith perform the services which he undertook, and that $1,073.63 which appellee paid appellant was much more than he received value for. We think that while there may be some errors of law in the record the judgment does substantial justice.

The judgment is affirmed.

'Affirmed.


text:
    John Funk et al., Appellants, v. The People, for use of Frank Kempton, Appellee.
    Gen. No. 5379.
    Appeals and errors—remedy xohere directions upon remandment improper. If upon remandment of a cause the directions given to the trial court are improper, the remedy is by petition for rehearing; if that remedy is not availed of the propriety of such directions cannot be urged upon a subsequent appeal.
    Appeal from the Circuit court of Livingston county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Rehearing denied November 18, 1910.

      Chase Fowler, for appellants.
    White & Tuesburg and Norton & Ortman, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This case with slight variation in the title, was before this court in 123 Ill. App. 100, before the Supreme Court in 221 Ill. 436, and before this court again and reported in 139 Ill. App. 563. The opinion on that appeal directed the court below to enter a certain order. The cause was redocketed in the court below, and an order was there entered from which John Funk and Lizzie F. Kempton administrators of the estate of Parker S. Kempton, deceased, prosecute this appeal.

Motions by appellee to tax the costs of the additional abstract to appellants and dismiss the appeal, were taken with the case. The order appealed from, so far as this record discloses, is in exact obedience to the directions in our former opinion.

The circuit court was bound to enter the order as directed. If the directions to that court were, in any particular, improper, appellant’s remedy was to petition this court for a rehearing. This they did not do. Therefore they must abide by our former direction. The motion to dismiss the appeal is denied. The motion to tax the cost of the additional abstract to appellant is granted and the order appealed from is affirmed.

Affirmed.


text:
    Ray Blasdel, Appellant, v. Ole A. Erickson, Appellee.
    Gen. No. 5382.
    Statute of frauds—when promise mthin. A collateral undertaking to pay the debt of another without any benefit moving to the promisor if not in writing is void under the Statute of Frauds and there is no distinction in law between the promise to pay the debt of another and a promise to do some collateral act by which payment might be obtained.
    Action commenced before a justice of the peace. Appeal from the Circuit Court of Livingston county; the Hon. T. M. Habéis, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    C. C. and L. F. Strawn, for appellant.
    A. C. Horton and F. A. Ortman, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This suit was brought against Ole A. Erickson and Fred Duckett before a justice of the peace, and an appeal taken by Erickson from the judgment of the justice to the Circuit Court of Livingston county. There Duckett entered his appearance and the case was dismissed as to him. The proofs show that Blasdel had a judgment against Mr. and Mrs. Jesse Duckett for $30 on which an execution was in the hands of a constable for collection. All the personal property owned by Mr. and Mrs. Duckett was exempt from execution. Satisfaction of the execution was demanded of them and they did not schedule their property, and because of their neglect so to do, the execution became a lien on their property sufficient in value to pay the judgment. On the last day of the life of the execution, Erickson, father of Mrs. Jesse Duckett, asked Blasdell to give Jesse and his wife more time. Blasdel replied that this was the last day of the life of the execution and he could not let it run out, but that if Fred Duckett, father of Jesse Duckett, and Erickson would give a note for sixty days for the amount, he would let the matter run. Erickson said he would sign such a note. Blasdel prepared a note and Fred Duckett signed it, not finding Erickson. Blasdel then handed the note to the constable who had the execution and asked him to get Erickson to sign it. The constable found Erickson on his way to the depot, and he said he was going to Peoria, and was in a hurry, hut would call in and sign the note when he got back. Blasdel directed the execution returned. Afterwards he asked Erickson to sign the note and Erickson refused, and said he had not promised to sign it. Blasdel brought this suit to recover that debt. On the trial of the appeal at the close of Blasdel’s evidence, the court directed a verdict for Erickson. Judgment was. entered thereon and Blasdel prosecutes this appeal.

Appellant testified that he did not satisfy the justice judgment. However,, he offered a transcript of the judgment and proved that the entries thereon were in the handwriting of the justice except a signature of the constable not material here. The transcript was admitted in evidence' except an entry thereon as follows, “Hete taken for judg. & costs by B. Blasdel.” It is urged that it was error not to admit the entry.

There was no proof that appellant had agreed to release or satisfy the judgment in consideration of Duckett and appellee executing the note, but the proof was that appellant only agreed to let the execution be returned and to give the judgment debtors time. .There was no proof that appellant authorized the entry to be made, and there was no proof when it was made. For aught that appears in the evidence, it may have been made after this suit was begun, or it may have been made without any authority. Appellant testified he did not satisfy the judgment. The entry does not purport to be a satisfaction of the judgment, and we do not think the admission of this entry on the docket would have proved that the judgment was satisfied, when disputed by appellant.

The case presented by this record, then, is that Erickson and Fred Duckett promised to sign this note for the debt of Jesse and Julia Duckett, the debt of another, and, that on the faith of that promise, appellant caused the execution to be returned, and thereby lost the advantage of making his debt out of the property which the defendants in the execution had neglected to schedule as exempt within the time fixed by law.

The yielding or releasing the lien on the execution was a consideration moving from appellant, hut it did not benefit appellee. He received no consideration or benefit for his promise. It was a collateral undertaking to pay the debt of another, without any benefit moving to the promisor, and since it was not in writing, and since there is no distinction in law between the promise to pay the debt of another, aid a promise to do some collateral act by which payment might be obtained, it was void under the statute of frauds. Scott v. Thomas, 1 Scam. 58; Eddy v. Roberts, 17 Ill. 504; Borchsenius v. Canutson, 100 Ill. 82; Farmers’ and Mechanics’ Bank v. Spear, 49 Ill. App. 509, affirmed in 156 Ill. 555.

The Borchsenius case quotes with approval from Curtis v. Brown, 5 Cush. 488, the following, “Where the plaintiff, in consideration of the promise, has relinquished some lien, benefit or advantage for securing or recovering his debt, and where by means of such relinquishment, the same interest or advantage has inured to the benefit of the defendant,—in such cases, although the result is that the payment of the debt of the third person is effected, it is so incidentally and indirectly, and the substance of the contract is the purchase by the defendant of the plaintiff of the lien, right or benefit in question * * *. But where the original debt still subsists, and where the plaintiff has relinquished no interest or advantage which has inured to the benefit of the defendant, it is not an original contract, but a contract to pay another’s debt, and must be in writing.”

As the evidence shows the promise relied upon was but an oral promise to answer for the debt of another, the court did not err in directing the verdict.

The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Thompson delivered

text:
    J. I. Case Threshing Machine Company, Appellant, v. Alfred Puls et al., Appellees.
    Gen. No. 5221.
    1. Contracts—effect of non-reply to written proposition. Held, that a failure to reply to a proposition of adjustment or compromise was to be construed as an acceptance thereof, and that, accordingly, the terms of a written contract of warranty were modified to the extent of the proposition so made and accepted.
    2. Sales—return of merchandise upon breach of warranty. Unless the contract of warranty so provides merchandise warranted cannot be returned to the vendor; if the contract does so provide such merchandise must be returned at the place designated and within the time specified in the contract of warranty.
    3. Damages—what competent in mitigation, in action for purchase price of merchandise. Failure of machinery to perform the work for which it was warranted may be shown in mitigation of damages in an action for the purchase price.
    ■ 4. Damages—when evidence in mitigation not competent in action for purchase price. Where a written contract of sale of machinery contains a,n express warranty and provides that in case of a breach of warranty the buyer shall return the machinery and the seller shall have the option to furnish another machine or return the purchase money notes, the buyer, in case of a breach of warranty, is bound to elect within a reasonable time whether he will return the machinery and claim a cancelation of the purchase money notes, or the delivery of proper machinery in lieu of that found deficient, and failing to do so, waives the breach and he cannot retain the machinery and claim damages in an action for the' price.
    Judgment by confession. Appeal from the County Court of Boone county; the Hon. Louis M. Reckhow, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Statement by the Court. A judgment by confession was entered for $288.80, in vacation in the County Court of Boone county, on May 5, 1908, upon a promissory note for $220, interest and attorney’s fees, in favor of the J. I. Case Threshing Machine Company against Alfred Puls, Howard H. Hicks and S. H. Luhman. Afterwards at the June term, the defendants filed a motion and affidavit in support thereof asking that the judgment be vacated. This motion was allowed and the defendants given leave to plead. At the December term, the plaintiff amended its declaration by including therein a second promissory note for $220 similar in form to the first note but due January 1, 1907.
    The defendants filed pleas of the general issue and of a breach of warranty, whereby the°consideration for said notes had wholly failed. A similiter was filed to the first plea, and a replication to the second plea that the defendants had not performed the conditions required by the contract in the second plea mentioned. Upon a trial there was a verdict in favor of the defendants and judgment rendered thereon. The plaintiff appeals from that judgment:
    The record shows that the appellant is a Wisconsin corporation engaged in the manufacture of corn huskers and other farm machinery with its place of business at Racine. On October 11, 1906, the appellees signed an order upon a printed form of appellant for one Case husker-shredder with wind stacker and bagger to be delivered at Belvidere or other convenient station in Illinois. The appellees were to receive the machinery on arrival, subject to the terms of a warranty printed in the order, to pay freight and charges upon delivery of the machinery, and to execute and deliver to appellant three notes for the total sum of $650, the purchase price; two of the promissory notes to be for $220 each, one due January 1,1907, the other due January 1, 1908; the third note to be for $210 due January 1, 1909. On October 17th, the machinery was delivered to the appellees, and on October 18th, the notes were executed and delivered. The first two notes are involved in this suit.
    By the terms of the order the machine:
    “Is warranted to be made of .good material and durable with good care, to do as good work under same conditions as any made in the United States of equal size and rated capacity. * * * If after trial of ten days by the purchasers said machinery shall fail to fulfill the warranty, written notice thereof shall be at once given to J. I. Case Threshing Machine Company at Racine, Wisconsin, and also to the agent through whom received, stating in what parts and wherein it fails to fulfill the warranty, and reasonable time shall be given to said company to send a competent person to remedy the difficulty, the purchaser rendering necessary and friendly assistance, said company reserving the right to replace any defective part or parts. If then the machinery cannot be made to fulfill the warranty the part that fails is to be returned by the purchaser free of charge to the place where received and the company notified thereof, • and at the company’s option another substituted therefor that shall fill the warranty, or the notes and money for such part immediately returned and the contract rescinded to that extent and no further claim made on the company * * * Failure so to make such trial or to give such notices in any respect shall be conclusive evidence of due fulfillment of warranty on the part of the company and that the machinery is satisfactory to the purchasers and the company shall be released from all liability under the warranty * * * If any part of the machinery fails from defect of material, while this warranty is in force, the company has the option to repair or replace the same, on presentation of the defective part or parts, but deficiency or defect in any piece shall not condemn other parts, and purchaser expressly waived all claim for damages on account of non-fulfillment of said warranty by any of the above described machinery. Each machine and attachment is ordered at a separate fixed price. * * * This order is divisible as to each machine and attachment ordered, and failure of any separate machine and attachment to fill the warranty shall not affect the liability of the purchaser for any other machine or attachment hereby ordered. Should any machine or attachment be subject to return under this order it is to be returned at the separate fixed price at which it was sold as above" provided. * * * ’ ’
    The order for the machinery was taken by F. B. Crawford, an agent of appellant. At the time the order was taken machinery of the description specified was in the possession of Hicks who, as agent for appellant and whose agency had terminated September 30, 1906, had exhibited it at the county fair at Belvidere but then had it on a farm known as the Wheeler farm, where Hicks lived, a mile north of Belvidere. The machinery was delivered to appellees October 18, 1906, at the Wheeler farm. After the machinery was delivered it was taken by Hicks to the farm of Puls, three miles west of Belvidere, and set up for operation the last of October. On November 1st, the machine was started and the work of Puls completed. It was then used in husking and shredding corn for four or five neighbors, the machine being used about eight days. The work done by the shredder was not satisfactory to appellees. They claim that it shelled more corn than other machines of that kind, and that the ears of corn would pile up on the husking rolls, requiring the stopping of the machine to clean it out; that a good many ears came out of the machine unhusked and that the machine would only turn out from twelve to fifteen loads per day, while other machines turned out from eighteen to twenty-five loads per day. Three days after the machine was started, Crawford, the sales agent of appellant, visited the appellees in response to a verbal complaint made to him. On November 14th, Hicks wrote to the general agent of the appellant in Chicago and claims to have written on November 15th to the appellant at Racine, but there is no evidence in the record as to the contents of either letter.

      On November 19th, one Mainland, an agent of the company, went to the farm where the machine was and remained nearly a week making repairs and adjustments. When he left, the machine appears to have been running no better than before. The machine was then upon the farm of Riedell, south of Belvidere. From Riedell’s the appellees took the machine to the Wheeler farm and the machine was not used again that season. On December 3rd, Hicks wrote to the appellant at Racine giving a general history of their use of the machine and of the attempts of appellant to make it work, and that the machine had not yet fulfilled the warranty, the letter concluding “that if you wish to put this machine in condition to fill the warranty we will take the machine next season on the same terms, namely, you send our notes here to Mr. Crawford or to the First National Bank and we will give new notes running one year without interest. We to house and care for the machine until next season, when we will give it another trial and then if it fills the warranty we will accept it. We think this is a fair and liberal offer, or if you prefer you may have the machine F. O. B. at this station subject to your order. Please write us about it at once.”
    The record does not show that appellant made any response to this proposition. On October 1, 1907, the next year, before the husking season had begun, Mainland, the agent of appellant, again appeared and overhauled the machine. At the opening of the husking season of 1907, about November 1st, appellees operated the machine about a day and a half upon the farm of Luhman. It did not work satisfactorily and they ceased operating it and left it standing on the Luhman farm; later they put it into the Luhman barn about a mile north of Belvidere where it remained nearly a year. A few days after they ceased operating it, Hicks notified Crawford, the agent of appellant at Rockford, that the machine did not work any better than before, but did not write to the appellant at Racine. In October, 1908, about two months before this case was tried the machine was hauled back to the farm of Wheeler where it was at the time of the trial.
    William Biester, for appellant; Cart, Upham & Black, of counsel.
    B. A. Knight, for appellees.
   Mr. Justice Thompson delivered

the opinion of the court.

Under the contract of warranty appellees, after giving appellant a reasonable opportunity to make the machine fill the warranty, if it then did not, were to return the machine to appellant at the place where it was received and notify the appellant thereof by notice in writing to appellant in Racine, Wisconsin, and also to the agent through whom it was received. The appellant received the letter of December 3, 1906, written by Hicks, and by not replying to it appears to have consented to the proposition of appellees to retain the machine until the next season and then try it again. The failure to reply to this letter was an acceptance of the proposition of appellees and a modification of the written contract to that extent, the contract of warranty remaining in force as modified.

After appellant had attempted in October, 1907, to adjust or repair the machine, and appellees in November again tried it, it appears to have still failed to fulfill the warranty. It was then the duty of the appellees under the contract, within a reasonable time thereafter, to return the machine to the place where they received it, and to give appellant notice of such re-' turn. After the trial of the machine, about November 1, 1907, appellees notified appellant’s agent at Bockford that it did not fill the warranty, but did not notify appellant at Racine in writing, and did not return the machinery to the Wheeler farm where they received it, as required by the contract. In October, 1908, about two months before the trial in the County Court, and five months after the entering of the judgment under the cognovit, appellees hauled the machinery back to the Wheeler farm where it had been delivered to them. Such is the case as presented on the part of appellees.

Property in this state cannot be returned by the purchaser because of a breach of warranty, unless the contract of sale provides for the return, and then the return must be made in compliance with the terms of the contract. Where goods are sold with a warranty and there is no fraud in the warranty, then the vendee on a breach of the warranty may not return the goods without the consent of the vendor, and if there is a stipulation that they may be returned, they must be returned within the time fixed in the contract, or if no time is fixed, then they must be returned within a reasonable time. If the goods are not returned, however, the purchaser may show the warranty and the breach in mitigation of damages to reduce the recovery. Owens v. Sturgis, 67 Ill. 366; Crabtree v. Kile, 21 Ill. 180; McMillan v. De Tamble, 93 Ill. App. 65; Tokheim Mfg. Co. v. Stoyles, 142 Ill. App. 199.

To this general rule, however, there is the exception that parties to a warranty may agree on a remedy for a breach and make it exclusive. Where a written contract of sale of machinery contains an express warranty and, provides that in case of a breach of warranty the buyer shall return the machinery and the seller shall have the option to furnish another machine or return the purchase money notes, the buyer, in case of a breach of warranty, is bound to elect within a reasonable time whether he will return the machinery and claim a cancellation of the purchase money notes, or the delivery of proper machinery in lieu of that found deficient, and failing to do so waives the breach and cannot retain the machinery and claim damages in an action for the price. Gaar Scott & Co. v. Hodges, 28 Ky. L. R. 889; Avery Planter Co. v. Peck, 86 Minn. 40; McCormick & Co. v. Allison, 116 Ga. 445; Westbrook v. Reeves, 133 Ia. 655. A contract may be so framed as to deprive a party of Ms legal right to an action for damages in case of a breach, and to require him in lieu thereof to return the property and accept other property that will satisfy the warranty. Kemp v. Freeman, 42 Ill. App. 500.

In this case one provision of the contract is that if the machinery cannot be made to fill the warranty the part that fails is to be returned to the purchaser where received, and the company notified and at the company’s option another substituted therefor, that shall fill the warranty, or the notes and money for such part returned and the contract rescinded to that extent; another provision is that the “purchaser expressly waives all claim for damages on account of the non-fulfillment of said warranty of the above described machinery;” still another is “it is further understood and expressly agreed that any breach of this warranty * * * on the part of the company does not confer any right of damage for delay or loss of work or earnings or to other damages.” The contract is one prepared by appellant with a view of limiting the remedy of the purchaser, for a breach of warranty, to a return of the particular part of the machinery that is the cause of the breach, after a number of necessary contractual prerequisites have been performed by the purchaser; and the purchaser at the same time is required to keep and pay for the remainder of the machinery, which may be useless without the parts that are returned.

It is not the province of courts to make contracts for parties and parties are bound by their contracts which are not in conflict with the statutes or against public policy. Upon the showing of appellees they did not return the machine to appellant at the place where received within a reasonable time, but left it on the farm of Luhman, one of appellees, until about five months after this suit was begun and a year after they decided not to retain it. They had waived their right to return it before they attempted to return it. By their offer of purchase they waived their right to claim damages on account of a breach of warranty and may not now recoup against the notes.

At the close of all the evidence, appellant requested an instruction directing the jury to return a verdict, in favor of appellant, for the amount of the notes in evidence and ten per cent attorney’s fees as provided for in the notes. This instruction the court refused.

The appellant having proved its case and the appellees having failed to prove a defense the court erred in refusing the instruction.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Thompson

text:
    H. W. Leydig, Defendant in Error, v. Frank C. Patten et al., Plaintiffs in Error.
    Gen. No. 5248.

      Judgments—effect of failure to enter default. It is error to render a judgment against all defendants in an action in which one defendant though served has not pleaded or been defaulted.
    Assumpsit. Error to the Circuit Court of Lee county; the Hon. Oscab E. Heard, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Faissler & Fulton, for plaintiff in error, Frederick B. Townsend; Harry S. Dixon, of counsel.
    Brooks & Brooks, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

H. W. Leydig brought suit against Frank C. Patten and Frederick B. Townsend to recover commissions. The declaration consists of the common counts with a bill of particulars attached. The plaintiff claims $2,000 for selling 2,000 acres of land near Brainard, Minn.; $1,000 for making’ a sale of the Polo Electric Light Plant and $1,900 for making a trade of some bank stock of the Defiance City Bank of Defiance, Ohio, for four farms in Illinois.- Both defendants were served with summons. Patten did not appear and was not defaulted. Townsend filed the general issue and on a trial before a jury a verdict was returned for $1,650 against both defendants on which judgment was rendered. Townsend sued out a writ of error in the name of both defendants; subsequently there was an order of severance and Patten was brought in by scire facias. Townsend alone assigned error.

The evidence shows that Leydig is a real estate agent at Dixon, Illinois; that Patten was formerly a manufacturer at Sycamore, Illinois, but at the time of this trial was a real estate agent in Chicago, and that Townsend is a banker in Sycamore. In 1907, Patten held $50,000 par value of - stock in the Defiance City Bank, and Leydig had the agency for the sale of some farms in Ogle county. A trade was made of the farms for the Bank stock. Townsend had no connection with the trade of the bank stock for the farms although the title to the farms afterwards was in Townsend as security for advances. There is no proof showing Townsend to have been in any way connected with the trade of the bank stock for the farms.

The evidence shows that the owner of the electric light plant at Polo told Leydig that he desired to exchange it for farm lands in Minnesota, Dakota, or a farm in Illinois. Townsend had the title to the Brainard land in which Patten had some interest. Leydig testified that he told Patten his commission for making an exchange of the Dakota land would be $2,000 and that he talked with Townsend over the telephone about it and that Townsend said he would agree to anything Patten did. Townsend denied ever having had any such conversation over the telephone. Leydig also testified that William Fraser assisted in the deal and it was admitted that Fraser and Robert Brand would testify that Leydig was not engaged by Townsend as his agent and that Townsend did not know that Leydig was interested in it. It was also admitted that Fraser would testify that Leydig was paid a. commission of $350 by Patten in full for his services in the matter and that Leydig told him that “we called it even.” Elmer Miller also testified that Leydig, in reply to the question, “Did you get square with Patten on the Brainard farm deal?” told him “he got $350 out of him and we called it even.” The very clear preponderance of the evidence is that Leydig has no just claim against Townsend, and that he was acting for the owner of the electric light plant that was exchanged for the Brainard land and for the owners of the farms that were exchanged for the hank stock. The motion for a new trial should have been allowed.

No default was entered against Patten although he was served with summons and did not plead. It was error to render a judgment without an entry of default or a plea. Crabtree v. Green, 36 Ill. 278; Lehr v. Vandeveer, 48 Ill. App. 511; Thomas v. McGuinness, 94 Ill. App. 248; Dickinson v. Simms, 128 Ill. App. 18. The judgment is an entirety, and cannot be affirmed as to one defendant and reversed as to another. Dickinson v. Simms, supra, and cases cited. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Arthur Keithley, Plaintiff in Error.
    Gen. No. 5309.
    1. . Slander and libel—what constitutes inducement of indictment. The inducement is that part of an indictment for lihel not per se defamatory which alleges those extrinsic facts which are necessary to explain the meaning of the words used and to show them to he injurious in effect.

      2. Slander and libel—when indictment charging, of deceased person, sufficient. An indictment charging a libel of a person deceased is sufficient if its averments are in the language of the Criminal Code.
    3. Slander and libel—what constitutes innuendo of indictment. The innuendo is that part of the indictment for libel which explains the defendant’s meaning by reference to the antecedent matter alleged in the indictment. It is a statement of the meaning attributable to the words of the publication, and the authorities are uniform that an innuendo cannot supply the place of an inducement in the pleading of a libel not injurious on its face.
    Prosecution for libel. Error to the County Court of Peoria county; the Hon. Wilbert I. Slemmons, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed.
    Opinion filed October 18, 1910.
    Arthur Keithley, plaintiff in error, pro se.

    Robert Scholes, for defendant in error; Joseph A. Weil and H. E. Pratt, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

Arthur Keithley, plaintiff in error, was indicted by the grand jury of Peoria county for libel of the memory of David McCullough, deceased; the indictment was certified to the County Court. No motion to quash was made, and on a trial he was found guilty. Motions for a new trial and in arrest of judgment were overruled, and a fine of $200 was assessed against the defendant. The defendant has sued out this writ of error to review that judgment.

The indictment consists of five counts. The first count avers “that Arthur Keithley on the 21st day of April, 1908, at and within the county aforesaid, unlawfully and maliciously contriving and intending to vilify and blacken the memory of one David McCullough, said David McCullough being a person deceased, and to bring the memory of said David McCullough into public scandal and disgrace, unlawfully, maliciously and willfully did compose and publish and cause and procure to be composed and published a certain false, scandalous and malicious and defamatory libel of and concerning the said David McCullough aforesaid, and caused and procured the said false and scandalous, malicious and defamatory libel to be printed in a certain alleged court proceedings, entitled Brief and Argument for and by appellant, in the Appellate Court, State of Illinois, Second District, April term, 1908, wherein Arthur Keithley appellant, v. John S. Stevens et al., appellees, appeal from Circuit Court of Peoria county, with intent to circulate and publish and afterwards did circulate and publish the said false, malicious and defamatory libel of and concerning the said David McCullough in said county of Peoria, State of Illinois, which false, scandalous, malicious and defamatory libel of and concerning the said David McCullough among other things is as follows The substance of the libel is that Keithley had begun a number of libel suits against the Peoria Star and certain named persons and had procured indictments to be returned against the said parties for libel, and while such proceedings were pending and to prevent a conviction, said parties entered into a conspiracy to procure the disbarment of Keithley and paid the costs of such disbarment proceeding and subpoenaed and suborned witnesses to testify against Keithley and committed perjury and paid a portion of a corruption fund provided by themselves and bribed the commissioner (meaning David McCullough) to make an unfavorable report against said Keithley by paying him (meaning David McCullough) money, and that such report was made by him in consequence of which Keithley was disbarred. The court concludes with the averment that all of the foregoing false and defamatory matter was then and there written and published by said Arthur Keithley to the great damage, scandal and disgrace of the memory of the said David McCullough. The other counts are very similar.

Plaintiff in error contends that the indictment is insufficient to sustain a conviction for the reasons (1) that an indictment for a libel vilifying the character of a deceased person must aver that it was published with a design to bring contempt on the family of the deceased or to stir up the hatred of the people against them or to excite them to a breach of the peace; (2) that the name of the deceased person is not mentioned in the libelous article and the indictment contains no allegation of extrinsic facts or circumstances showing the connection between the libel and the party alleged to be libelled.

As to the first contention of the plaintiff in error, the Criminal Code defines the offense as follows: '“A libel is a malicious defamation, expressed either by printing, or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby expose him to public hatred, contempt, ridicule, or financial injury.”

All the statute requires to make a publication a libel on a deceased person is that it tends to blacken the memory of one who is dead; the remainder of the definition of libel is concerning a living person. If the contention of the appellant be true, then notwithstanding the statute, a deceased person who did not happen to leave a family could not be libeled no matter how base or wicked the publication might be. We hold that the allegation criticised, being in the language of the statute, is sufficient.

Concerning the other contention, the indictment is totally lacking in what is called inducement. The inducement is that part of an indictment for libel not per se defamatory which alleges those extrinsic facts which are necessary to explain the meaning of the words used and to show them to be injurious in effect. Newell on Libel and Slander," 603. It is contended by appellee that the necessary inducement is supplied in that part of the indictment which is called the “innuendo.” The innuendo is that part of the indictment for libel which explains the defendant’s meaning by reference to the antecedent matter alleged in the indictment. It is a statement of the meaning attributable to the words of the publication, and the authorities are uniform that an innuendo cannot supply the place of an inducement in the pleading of a libel not injurious on its face. These rules are announced in 13 Encyc. Pl. & Pr. 99; Follard’s Starkie on Slander and Libel, 700 (star paging); Newell on Libel and Slander, 613; Chitty on Pl. 401; McLaughlin v. Fisher, 136 Ill. 111; State v. Grinstead, 62 Kans. 593; Miller v. Maxwell, 16 Wend. 9; Linnville v. Earlywine, 4 Blackf. 469; Carter v. Andrews, 16 Pick. 1; Beswick v. Chappel, 47 Ky. 486; Holton v. Muzzy, 30 Vt. 365; Dorsey v. Whipps, 8 Gill. 457; Salvatelli v. Ghio, 9 Mo. App. 155; Smith v. Coe, 22 Minn. 276.

The name of the deceased is not mentioned in the publication, and the publication was therefore not in itself libelous of „the memory of David McCullough. There are neither any facts alleged nor is there any inducement averred which make the publication applicable to the deceased, and as stated before an innuendo cannot take place of the inducement. The indictment should have averred the disbarment proceedings against Keithley and that the commissioner appointed therein was David McCullough, with such extrinsic facts and circumstances as would render the application of the alleged libel clear and unequivocal.

The indictment was defective in that it failed to state an offense, by reason of the failure to state facts in the inducement which would constitute a libel on the memory of David McCullough, deceased. The motion in arrest should have been sustained. Gardner v. People, 3 Scam. 84; Kerr v. People, 42 Ill. 307; Carter v. Andrews, 16 Pick. 1; Edgerly v. Swain, 32 N. H. 478; Merritt v. Dearth, 48 Vt. 65.

For the error in overruling the motion in arrest, the judgment is reversed.

Reversed.


text:
    Philip W. Mothersill, Defendant in Error, v. Wilbur Glenn Voliva, Plaintiff in Error.
    Gen. No. 5311.
    1. - Slander and libel—when article libelous of person not named. If extrinsic facts and circumstances are averred and proved which show that a person not named in the libelous publication was intended and generally understood as being the person referred to, the publication is libelous as to such person.
    2. Slander and libel—when damages awarded are excessive. A verdict for $10,000 in an action for libel brought by a lawyer is excessive where no proof of actual damages being suffered is made.
    3. Trial—when arguments of counsel ground for reversal. To state that no instructions have been asked out of motives of caution," and notwithstanding the remonstrance and admonitions of the court, to persist in such statement, is so prejudicial as to require reversal.
    Trespass on the case. Error to the Circuit Court of McHenry county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    A. K. Stearns, George W. Field and D. T. Smiley, for plaintiff in error.
    Orvis & Beaubien, D. R. Joslyn and W. H. Fabry, for defendant in error.
   Mr. Justice Thompson

Plaintiff in error was acting general overseer and leader of a certain faction of a religious society known as the Christian Catholic Apostolic Church in Zion, in the city of Zion, in Lake county. Defendant in error was an attorney residing in the city of Zion, but was not a member of the society of which plaintiff in error was overseer, nor of any church, and was an active member of a faction opposed to plaintiff in error, and had been city attorney of Zion City and a salaried officer of the Zion law department. Plaintiff in error caused to be published and circulated hand bills, concerning the faction with which defendant in error was associated, which defendant in error claims were a libel. Defendant in error brought suit in the Circuit Court of Lake county to recover damages sustained by him by reason of the alleged libel. The declaration contains three counts. There was a trial in Lake county and a verdict for $14,000 which was set aside on motion. A change of venue was then granted to McHenry county where on a trial a verdict was rendered on the third count of the declaration for $20,000. A remittitur of $10,000 was entered and judgment rendered for $10,000 and the defendant prosecutes this writ of error to review that judgment.

Part of the hand bill which defendant in error alleges libelled him is as follows, the words declared upon being italicized:

“Back to Zion City with A Happy Greeting.

T'o all who love God and are standing firmly for Zion, and with a

Declaration op War against the

Hosts op Hell in Zion City.

Represented principally by the Disgusting Municipal League and still More Disgusting Windbag of a Paper, the Zion City News.

Let all Zion stand together and be prepared to resist every movement of the Traitors and Hypocrites in Zion City.

Be prepared to move forward as one man, ecclesiastically, educationally, commercially and politically.

Dr. Brister is the only Zion Dentist in Zion City, Patronize no other.

In reference to all Legal Questions, first see Deacon Forby and he will then direct you to a Good Lawyer. Have nothing to do with little Upstart Democrats who are just Flipping the pipps off their bills.

Buy no coal until after Important Announcement to be made next week.

Zion will stand no Nonsense from Anybody, and in the Name of the Most High God, I defy the whole outfit, from the little two legged Fice-dogs that snarl at my heels on the streets to the cunning Triclcsters who meet behind closed doors and plan to execute, their Master’s Plots for the Destruction of Zion City. Let all Zion give any High School run by Higley and Harney a wide berth. Zion is Able to take care of her own and will do it. Important announcement to-morrow.

• Let Zion combine and down politically every Traitor in the City. * * *”

Plaintiff in error contends that the part of the hand bill on which the suit is brought is not libelous.

' The defendant in error in the declaration has pleaded extrinsic facts and innuendoes setting forth the latent and injurious meaning of the words. We are of the opinion that parts of the publication are susceptible of the meaning ascribed to it, and if the meaning ascribed is the true meaning then it was libelous. Under such circumstances it becomes a question of fact for the jury to say from the evidence whether such meaning was truly ascribed, and whether the defendant in error was the party intended, although not named in the publication. Hays v. Mather, 15 Ill. App. 30.

It is also insisted that the verdict was the result of passion and prejudice and that the judgment, even after the remittitur, is excessive. There is no proof in the record that by reason of the publication the defendant in error sustained any actual damages'. He did not lose any business nor was he prevented from obtaining any business he would otherwise have obtained. There were but two law firms in the city, and defendant in error remained the attorney of his faction, bound to it by the ties of a religious strife. The amount recovered must be considered as almost wholly vindictive and far in excess of the amount, if any, he is entitled to recover.

In the final argument made to the jury in behalf of defendant in error counsel forgot that he was in a court of justice, and appealed to the passions of the jury rather than to their reason and judgment. We quote a few expressions: “Now when you consider this libel, and it is a libel, or it would not be here for you to try.” “He hangs pearls on his breast, and his swelling paunch he decorates with jewelry almost enough to start a jewelry shop.” “You have got to say by your verdict whether a man who is assaulted as this young man was, he can rely absolutely on the law of this state or if he has to take a shot gun.” “It is for you-men to judge from all this evidence; I charge that on behalf of the defendant, but one witness who has taken the witness stand, even Voliva and every man and every woman who has testified here, testified to words that 'the defendant right there, put in their mouths.” “You cannot stop a thing of that kind with any small amount of fine; you cannot penetrate his hide with any small amount of money. * * * It has got to be such an amount as will take that pearl off his breast for a little time at least; he could pawn it; and you could rob him of one half that watch chain; he don’t need but one half of it.” “He tries to hold his power, tries to milk these poor people, credulous and honest that have come in here—deacons and deaconesses through fear have come here —” “Mr. Orvis and myself consider it better practice where, as in a case of this kind the law is plain, not to ask any instructions for the jury at all on our side, where there is nothing complicated as to the law.” The Court: “The instructions are the instructions of the Court; they are not the instructions of either side.” Counsel: “If there‘is any error —” The Court: “You are not correct in talking of that subject to the jury. They are the instructions of the court.” Counsel: “I except to the court’s statement and insist that the instructions given or offered by the plaintiff will reverse this case if they are given and found to be incorrect. Gentlemen of the jury, we have asked no instructions.”

The court was unable to restrain counsel; the rulings of the court were disregarded. The deliberate repetition of the statement that defendant in error asked no instructions after the admonition of the court, is misconduct so reprehensible as of itself to require a reversal of the case. I. I. & I. R. R. Co. v. Otstot, 212 Ill. 429; Wiersema v. Lockwood, etc., 147 Ill. App. 33. The judgment is reversed because the damages assessed are excessive and because of the improper conduct of counsel, and the cause is remanded.

Reversed and remanded.


text:
    Amolia Barth, Appellee, v. Stephen Hanna, Appellant.
    Gen. No. 5326.
    1. Slander and libel—burden of proof to establish communication as privileged. If the alleged slanderous words are conditionally privileged, the burden of proof to establish such fact is upon the defendant.
    2. Slander and libel—when libelous words actionable though conditionally privileged. Notwithstanding the libelous words are conditionally privileged, a recovery will be sustained if actual malice be shown.
    3. Slander and libel—when words actionable per se. Words spoken of a school teacher which impair her credit in her profession are actionable per se.

    4. Appeals and errors—when assignments of error waived. Grounds for reversal alleged but not argued are deemed waived.
    5. Variances—when objection comes too late. An objection of variance first made in the Appellate Court comes too late.
    6. Instructions'—when omission of words “if any” will not reverse. Held, that the omission of the words “if any” as qualifying damages shown, would not reverse as the instruction in question primarily referred to the awarding of punitive damages.
    Action in case. Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Farrand, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    George L. Hoffman and John B. Connell, for appellant; Walter Stager, of counsel.

      Ralph E. Eaton and W. C. Middlekauff, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case begun by Amolia Barth against Stephen Hanna for an alleged defamation of the character of plaintiff by slanderous words spoken by defendant. The declaration consists of four counts and two additional counts. The third original count and the second additional count aver that the plaintiff on May 12, 1909, and for a number of years continuously prior thereto was in possession of a certificate issued to her by the county superintendent of schools of Carroll county, authorizing her to teach public school in said county; that for five years she was lawfully engaged in teaching school in said county, etc.; that the defendant, maliciously intending to injure the plaintiff, etc., and to make it impossible for her to procure a position in any of the public schools of said county, and to injure her reputation so that no board of directors of a public school in said county would desire to employ her as a teacher, in a certain discourse which the defendant then and there had in the presence and hearing of divers persoDs concerning the plaintiff as a teacher, falsely and maliciously, etc., published the false, scandalous and defamatory words, etc. Some of the scandalous words set forth, omitting the innuendoes pleaded in connection with them, are: “She followed the boy, a pupil in the public school, around like a boaring sow would follow a boar;” “She is a catch-colt;” “She is a bastard and has no rights in law;” “She slept with the boy;” “She slept with Virgil McCombs;” “We could not use her on account of her immorality;” “She was expelled from another school because she got to fooling around with some big boys;” “I told her she would be a pretty thing to employ in a school room if there was a lot of big boys; she would just make a plaything for them.” Said counts averred that by means of the committing of the several grievances the plaintiff has been greatly injured in her good' name and reputation as a teacher in Carroll county, and has fallen into great discredit and ill repute; and plaintiff as a teacher, on account of said scandalous words, has been deprived of large gains and has been refused employment, etc. The other counts are ordinary counts for scandal.

The defendant filed the general issue. On a trial a verdict was returned for plaintiff for $2,000 on which judgment was rendered and the defendant appeals.

The evidence shows that the appellee was an unmarried woman of the age of twenty-five years, and in May, 1909, was closing her second year as a teacher in district 97 in Carroll county; that appellant was one of the school directors and president of the school board in that district, and appellee had boarded at the house of appellant during the time she had taught in that district; that in January of that year a boy, Virgil McCombs," aged thirteen, lived at the house of appellant for two weeks and attended the school taught by appellee; that in March, 1909, the directors individually promised appellee the school for the next year, and that in May appellant said to the other directors “that Miss Barth followed the boy around like a boaring sow would follow a boar;” “that she was nothing but a - bastard and catch colt and had no rights in law;” “that she had been turned out of a school up north because she had been fooling around with some big boys;” “that he did not propose to permit her to teach school another year because he would not permit a whore house to be made out of the school;” “I told her she would be a pretty thing in a school; if we had a lot of big boys she would be a plaything for them,” with many similar statements. Many of these statements were proved to have been made by appellant not only to the other directors, but to them in the presence of other parties, and in the presence of parties who were not directors. Appellant denied making the statements as alleged, and insisted what he did say was privileged.

If the alleged words are privileged they come within the class known as qualifiedly or conditionally privileged. The burden was upon appellant to show that the occasion of the speaking the alleged slanderous words was privileged and that he spoke them from a sense of duty with an honest belief in their truth. When the speaking of the alleged slanderous words is proven and the speaker shows that they were spoken upon a conditionally privileged occasion, then if actual malice be proven the speaker would still be liable. Rausch v. Anderson, 75 Ill. App. 526; Everett v. DeLong, 144 Ill. App. 496. In the case at bar the alleged words having been proved to have been uttered to the other directors in the presence of third parties and in the presence of third parties alone, the defense of privileged communication fails.

Counsel for appellant say they rely upon the following errors: (1) that the court admitted improper evidence over the objection of defendant; (2) that the court refused to admit proper evidence offered by the defendant. Nowhere in their statement, brief or argument have counsel attempted to point out any such error or to call our attention to any evidence admitted or refused which they think to be error. They have therefore waived such error if any exists. Duggan v. Ryan, 211 Ill. 133; City of Mt. Carroll v. Havill, 128 Ill. App. 331; Sanitary District v. Joliet Pioneer Stone Co., 109 Ill. App. 283.

It is urged that ‘ ‘ There are no facts or circumstances alleged by way of inducement that would make any of the charges actionable per se,” and that there is also a material variance between the allegations and the proof. We do not find that any objection was made to the testimony on account of a variance, and the question was not raised in the trial court. If that question had been raised in the trial court the declaration could have be n amended. It is too late to raise the question in this court for the first time. C. & N. W. Ry. Co. v. Gillison, 173 Ill. 264; Libby, McNeil & Libby v. Scherman, 146 Ill. 540;‘ Ransom v. McCurley, 140 Ill. 626. The third and second additional counts allege and the proof shows that appellee was a school teacher by profession, and that the words spoken of her by appellant impaired her credit in her profession, and they were therefore actionable per se. Nelson v. Borchenius, 52 Ill. 236.

Error is assigned on the giving of several instructions as requested by appellee. It is contended that the sixth assumes that the appellee suffered damages. The instruction is:

“If the jury, under the evidence and instructions of the court, find the defendant guilty, in this case in assessing plaintiff’s damages, they are not confined to such damages as will probably compensate the plaintiff for such injury as the evidence shows she has received, by reason of speaking the defamatory words charged in the declaration, but they may, in addition thereto, assess against the defendant by way of punishment such damages as the jury, in their sound judgment, under all the evidence in the case believe the plaintiff ought to receive not exceeding the amount claimed by the plaintiff in the declaration provided the jury believe the defamatory words were spoken maliciously or wantonly by the defendant.”

The instruction would not be liable to this criticism if the words “if any” had been inserted after the words “such injury as the evidence shows she had received.'” If the appellant was found guilty, a verdict would carry at least nominal damages. As the instruction was concerning punitive damages the omission of the words “if any” concerning compensatory damages, when appellant had first been found guilty, is not error sufficient to reverse the case.

It is contended that the 9th, 13th, 14th and 15th instructions are erroneous in that they tell the jury among other things “That if they believe from the evidence that said words tended to impair the reputation of, and injure the plaintiff as a school teacher, then in that case they should find the defendant guilty.” Counsel say: “It surely is not the law that plaintiff would be entitled to special damages by the use of language which only tended to injure her but did not in fact injure her.” Where words are spoken of one in his trade or profession which tend to impair his credit or reputation and which tend to injure him in his trade or profession, the words are actionable per se without proof of special damage. Nelson v. Borchenius, supra; Marion v. Courier Pub. Co., 125 Ill. App. 349; Gerald v. Inter Ocean Pub. Co., 90 Ill. App. 205. Other criticisms are made of these and other instructions but we find no merit in them when the instructions given on both sides are considered as a series.

It is also insisted that the judgment is excessive. The appellant was president of the school board, a leading man in the community, owning a valuable residence in Mt. Carroll, a valuable farm, and a patent for which he had been offered $80,000 but which he was holding at $100,000. He was convicted by the verdict of using excessively brutal language concerning the appellee, a school teacher, although he testified that such charges were not true and that he did not make the statements alleged. We cannot say that a judgment for $2,000 is excessive under the circumstances. The judgment is affirmed.

Affirmed.


text:
    George W. Ewing, Appellee, v. Simon Cox, Appellant.
    Gen. No. 5329.
    1. Trial—effect of disobedience of rule excluding witnesses. A party should not be deprived of the testimony of a witness who without his knowledge has disobeyed a rule entered by the court excluding witnesses from the court room until they should be severally called.
    2. Evidence—how proof of marriage made. The certificate of the official who officiated at the ceremony, and not the certificate of the county clerk,' is the proper record evidence to establish marriage.

      Action for criminal conversation. Appeal from the Circuit Court of Stark county; the Hon. T. N. Green, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    John W. Creekmur, for appellant.
    Daily & Miller and A. P. Miller, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action for criminal conversation brought by George W. Ewing against Simon Cox. The declaration consists of one count and avers that on November 1, 1908, and at divers other times between that time and the bringing of the suit, the defendant debauched plaintiff’s wife. There was a plea of not guilty and a verdict and judgment for plaintiff for $5,000 from which the defendant appeals.

After the jury were selected to try the case and before the opening statements were made the court made an "order excluding all the witnesses from the court room until they should be severally called. There was a flat contradiction in the evidence as to certain facts, and some of these questions arose during the progress of the trial. Two witnesses were subpoenaed for appellant during the trial and were in the court room and heard part of the evidence before they were called to the witness stand. The appellee objected to their testimony because of the violation of the rule excluding the witnesses. The witnesses had no knowledge of the rule and neither appellant nor his attorney knew of the presence of the witnesses in the court room.' Where witnesses have been excluded from the court room while other witnesses are testifying, and a witness disobeys such order, the court under some circumstances has a discretion to refuse to. permit such witness to testify, but such discretion is a reasonable and not an arbitrary one and its abuse is subject to review. If a witness disobeys an order of the court he may be proceeded against for contempt hut he is not disqualified from testifying; a litigant not a party to such violation of a rule should not be punished by being deprived of the evidence of the witness and be cast in a law suit because of an innocent violation of a rule of court, which the party did not know was being violated and of which rule the witness had no knowledge. Kota v. People, 136 Ill. 655; Bulliner v. People, 95 Ill. 394; Bow v. People, 160 Ill. 438; Palmer v. People, 112 Ill. App. 527; 3 Ency. Evi. 240.

The appellee offered in evidence a certificate of the County Clerk of Stark county to prove the marriage of appellee to which an objection was made and overruled. The certificate is: “I, W. E. Nixon, Clerk of the County Court of said County, hereby certify that George W. Ewing was married to Miss Hattie M. Kerns in said County on the 20th day of September, 1886, by Rev. D. G. Stouffer, a minister of the Gospel * * * as appears by his return and certificate of marriage attached to the license granted by the Clerk of this Court and now on file in my office. In Witness Whereof,” etc. This certificate was simply the conclusion of the Clerk. Sections 11 and 12 of chapter 89 of the Statute provide how a marriage may be proved, viz., by the certificate made by the official who officiated at the ceremonial or by a copy of the entry in the registry certified to by the county clerk under the seal of the county. The objection was improperly overruled. However, the marriage was proved by the testimony of the appellee without objection and it was practically proved by the appellant, so that the admission of the certificate was harmless error.

The evidence offered by appellee showed that he had been in the employ of the appellant at various times for twenty years working on a farm; that appellant was sixty-eight years of age, and had known Mrs. Ewing since she was a baby; that appellant lived a mile from Wyoming and in March, 1908, employed appellee for a year at $40 a month and was to furnish him a house or pay his house rent, and what milk he wanted for family use; that appellee lived in a rented house until November, when he moved into a house of appellant in Wyoming. Appellant retained the use of the barn connected with the house for stabling his horse, as he went to town daily with milk and vegetables which he delivered to appellee and other housekeepers. Appellee left his house in the morning and was at appellant’s farm during the day time. There was no proof of anything criminal before January 20, 1909, although appellant was seen to go to appellee’s house almost daily and occasionally to go into the house. In October Fred Ewing, twenty years of age, a son of appellee claimed to have seen appellant give Mrs. Ewing, two dollars and thought “it was rather funny” and told his father. Appellee’s proof is that on January 19, 1909, appellant having frequently indicated that he would like to have appellee leave his employ, and appellee having been made suspicious of Iris wife by what was told him by his son, appellee and his son laid a trap for appellant, by appellee telling appellant that he would like to be excused from work for a few days to. go to Pekin to find employment at his trade as a baker; that appellant consented and appellee got $25 from appellant on the morning of January 20th; that appellant saw appellee cash the check in the bank, buy a ticket and leave on the train; that appellee came back that night by arrangement with his son, got off the train on the side away from the depot and went to the barn in a roundabout way so as not to be seen; that after the son ascertained that the family had retired appellee went into the house and slept upstairs in Fred’s bed room, his wife sleeping down stairs with the children and not knowing that appellee was in the house; that he staid upstairs until nine o’clock the next morning, when his wife having gone out of the house to get coal he stole down stairs into a closet. On cross examination he testified the children had not gone to school when he went into the closet under the stairway but be didn’t see them; he knew that the four children were in the house some place but he did not know where. On the direct examination he had testified “after the litle girls had gone to school my son watched the opportunity to get me down stairs into the closet.” Fred Ewing testified his mother had sent the sister to a relative with the little boy aged four and one-half years, for the day; that appellee’s wife as she went after coal met a cousin, Rogers, and Fred Ewing pushed him into the closet with appellee, saying they were playing a joke on his mother; that when his mother came in Fred put on his coat and told her he was going up town, hut only went half a block and stood watching for appellant and in about ten minutes he saw appellant go towards the house and enter the kitchen door; and Fred entered the house by another door and saw appellant and his mother in the kitchen; that appellant went into a bed room and Mrs. Ewing followed and appellee and Rogers came out of the closet and found appellant and Mrs. Ewing on the bed. *

The evidence on the part of the appellant tends to show that there was a plot to which appellee and his wife were parties to get him into a compromising position; that there had been a death in his family and other members of his family had to leave to go to the funeral; that he was sick and had been to see a physician that morning who had ordered him to go to bed and he had heard appellee was in town and he went to his house to ask Mrs. Ewing to send her husband out to the farm; that she told him her husband had not returned and appellant said he knew he had, because he had been told so up town; that Mrs. Ewing asked him to go into the bed room to look at a bad spot in the ceiling; that she with a broom followed him in and was sweeping around and shut the door, and that appellee and Rogers came into the room; that they were not on the bed, but he was very heavily dressed with rubber boots, overshoes and overcoat and an unusual amount of underclothing, and that nothing improper occurred; that Dr. King had examined him that morning and found symptoms of pneumonia and prescribed for him.

There are very many unreasonable things in the evidence of appellee’s witnesses; it is very strange that her son over twenty years of age would plot to have his mother trapped in the manner described by this evidence; the contradictions that appear in the appellee’s evidence cast a serious doubt on his right to recover. It is not claimed that there was any act of adultery committed on the morning of January 20, but only that the conduct of the parties at that time justifies the belief that such relations had previously existed.

As this cause must be submitted to another jury we refrain from discussing the question whether the evidence proves connivance on the part of appellee and his wife to place the appellant in the compromising position appellee’s evidence, if true, places appellant in.

Because of the error in sustaining objections to competent witnesses testifying, the judgment is reversed and the cause remanded.

■Reversed and remanded.