author: Mr. Justice Puterbaugh

text:
    George H. Lucas, Administrator, Appellee, v. Peoria & Eastern Railway Company, Appellant.
    1. Master and servant—safety appliance acts construed. A railway company in possession of and operating a railway and engaged in interstate and intra-state traffic is liable for injuries caused by defects in a car in violation of either the Federal or State Safety Appliance Acts whether such car was at the time being used in interstate or intra-state traffic.
    2. Landlord and tenant—when lessor railroad liable for negligence of lessee. If a railroad is operated by a lessee, the lessor is liable for the lessee’s actionable negligence.
    3. Landlord and tenant—when employes of lessee railroad company in employ of lessor. Where a railroad is operated by a lessee its employes are to be regarded as in the employ of the lessor company.
    4. Federal Safety Appliance Act—what defenses not available thereunder. Neither the defense of contributory negligence nor of assumed risk is available in actions based on violations of the Federal Safety Appliance Act, since section 3 provides that no employe shall be held to have been guilty of contributory negligence where the violation by the carrier of any statute for the safety of employes contributed to the injury or death.
    5. Federal Safety Appliance Act—ho Tin# averment and proof unnecessary thereunder. In actions based on violations of the Federal Safety Appliance Act it is unnecessary to aver or prove that one injured or killed was exercising due care at the time, and such an averment may be treated as surplusage.

      6. Federal Safety Appliance Act—when violation established. A violation of the Federal Safety Appliance Act is established where a finding by the jury that a car was equipped with defective automatic couplers was warranted.
    7. Evidence—when admission proper. In an action for violation of the Federal Safety Appliance Act, evidence is properly admitted which tends to show that an examination of the alleged defective coupler two days after the accident disclosed defects.
    8. Evidence—when exclusion immaterial. Whether the exclusion of testimony is proper is immaterial after dismissal of counts to which it solely pertains.
    9. Federal Safety Appliance Act—when exclusion of evidence thereunder proper. In an action under the Federal Safety Appliance Act for injuries caused by an alleged defective coupling, evidence of the method of uncoupling cars without going between them was not improperly excluded since the duty of the company to maintain its safety appliances in good repair is absolute.
    10. Argument—when improper and unprofessional. It is improper and unprofessional for counsel in argument to state that while the evidence did not show exactly how deceased was killed that he knew what deceased told his wife as to the accident, and such statement will work reversal if the verdict was affected thereby.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Rehearing denied April 18, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Rearick & Meeks and Geo. B. Gillespie, for appellant.
    Thomas A. Graham and C. W. Fleming, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case for the recovery of damages resulting from the death of James F. Lucas, which it is alleged was caused by the negligence of the defendant. A trial resulted in a verdict and judgment for the plaintiff for $5,000.

The first and second counts of the declaration charge that the deceased was injured as the result of a failure on the part of the lessee of the defendant to have certain cars equipped with automatic couplers so they would couple and uncouple automatically without the necessity of men going between the ends of the cars, in violation of the Safety Appliance act of Illinois. The first and second additional counts charge that the deceased was injured as a result of the failure of the lessee of the defendant to have said cars so equipped, in violation of the Federal Safety Appliance act. Each count, with the exception of the second additional, charges that the deceased was in the exercise of due care for his own safety, and each charges that the injury to the deceased was due to the fact that certain cars were not so equipped that they could be uncoupled without the necessity of men going between the ends of the cars.

The evidence discloses that the railway upon which the deceased was injured, ran from Springfield, Ohio, to Peoria, Illinois, and was in the possession of and being operated by the C. C. C. & St. L. Railway Co., under a lease from the defendant company, and that the former company was engaged in moving traffic by railroad, between points in this state, and was also a common carrier engaged in interstate commerce by railroad. It is well settled that if the defective car in question was being used by such lessee company in violation of the provisions of either the Federal or the State statute, such statute would have been applicable without regard to whether the car in question was being used at the time in intra-state or interstate traffic, Southern Railway Co. v. United States (U. S. Supreme Court, opinion filed October 30, 1911) and the railway company so in possession of and operating such railway would have been liable for damages resulting from such violation. It is contended, however, that inasmuch as the defendant company was not in possession of or operating the railway, and not engaged in either intra-state or interstate traffic, it cannot be held liable for violation of the statute by its lessee merely because of its ownership of the railway. This court is committed to the doctrine that where a railroad is operated by a lessee, the employes of the lessee are to be regarded as in the employ of the lessor company; that the lessor is liable for the actionable negligence of the lessee company to the same extent. (Wabash R. R. Co. v. Keeler, 127 Ill. App. 265.) We believe such view to be fully sustained by the reasons given and the conclusions reached by the court in Railway Co. v. Hart, 209 Ill. 414, and R. R. Co. v. Weber, 219 Ill. 372

It is further urged that the plaintiff has failed to prove by the greater weight of the evidence, that the deceased was at the time he was injured, in the exercise of due care and caution for his own safety. They insist that neither the State nor Federal act relieves the plaintiff of alleging and proving due care on the part of the deceased. We think such contention is fully and decisively answered by the amendments to section 3 of the Federal statute which provides that “no employe of a common carrier by railroad, who may be injured or killed, shall be held to have been guilty of contributory negligence, in any case where the violation by such common carrier of any statute enacted for the safety of employes, contributed to the injury or death of such employe.” We think it is equally clear that under the express provisions of the Federal act, neither the defense of contributory negligence nor assumed risk is available in actions based upon violations of the act, and to recover under the counts of the declaration predicated upon the Federal act, it was unnecessary for the plaintiff to either aver or prove that the deceased was in the exercise of due care and caution at the time he was injured. Such averments in the first additional count may therefore properly be treated as surplusage.

At the time Lucas received the injuries which caused his death he was in .the employ of the lessee railroad company and was "acting as foreman of a switching crew in its yards at Danville, Illinois. One of the spur tracks in said yard ran east and west, and from the west end sloped downward toward the east. Just prior to the accident, the crew, of which Lucas was foreman, had started to take several cars off the spur track in question, leaving thereon the furthest car from the switch, referred to as the New York Central .car, and which had arrived from Grand Eapids, Michigan, on that day. Next to the New York Central car and coupled thereto, was one referred to as the Pennsylvania car. Both cars were equipped with automatic couplers operated by means of levers which lifted the couplings connecting the cars and extended from the coupler to a few inches beyond the sides of the cars. The evidence introduced by the plaintiff tended to show that after the switch engine had been backed upon the spur track at the east end thereof, the deceased, who was on the south side of the cut of cars, took hold of the lever on the south side of the New York Central car, and after signalling to one of the brakemen to go ahead, made several unsuccessful attempts to lift the lever; that he then stepped between the two cars and endeavored to raise the pin from the coupler on the west end of the Pennsylvania ear, and that while there between the cars, they became uncoupled, causing the New York Central car to run down the grade, and over Lucas, so injuring him that he died.

There was evidence tending to prove that the lever upon the latter car was not in good working order, in that it was bearing upon the brake-staff, so as not to work freely, and also that the chain attached to the knuckle-lock was too short to permit the knuckle-lock to drop into its proper place. While there is some conflict in the evidence upon that issue, the jury were warranted in finding that the New York Central car was not equipped with couplers which should couple automatically by impact, and that the same could not be uncoupled without the necessity of men going between it and the connecting car. A violation of the Federal statute was thus established. The jury was also warranted in finding that such violation was the proximate cause of the death of Lucas.

The defenses of assumed risk and contributory negligence being unavailing, the verdict of guilty was justified. It is urged however that error intervened npon the trial which was prejudicial to the defendant ; that the trial court erred in its rulings upon the evidence and instructions, and that counsel for the plaintiff made improper statements to the jury in the closing argument. We have examined the instructions offered and find that those given are in accord with the law as herein expressed, and that those not given were properly refused. The court properly admitted evidence tending to show that an examination of the coupler in question two days after the accident, disclosed that the inner parts were in a battered condition and that the chain attached to the knuckle-lock was defective. (Ry. Co. v. Dorsey, 89 Ill. App. 555; S. C. 189 Ill. 251.)

The testimony of the witness Marvel, excluded by the court, pertained solely to the common law counts of the declaration, which were dismissed by the plaintiff at the close of all the evidence, and whether or not it was properly excluded became thereafter immaterial. The contention that evidence as to the method of uncoupling cars without going between them was improperly excluded, and that plaintiff’s tenth instruction should not have been given, is answered by the cases of U. S. v. D. & R. G. R. Co., 163 Fed. Rep. 519 and N. & W. R. Co. v. U. S., 177 Fed. Rep. 623, which hold that the duty of a railroad company to maintain its safety appliances in good repair is absolute.

During his closing argument counsel for the plaintiff stated to the jury that while the evidence did not show exactly the manner in which the deceased was killed, yet that he (counsel) knew what the deceased had told his wife as to how the accident happened. Upon objection being made, the trial judge directed counsel to confine himself to the evidence. The statement in question was manifestly improper and unprofessional, and if we thought that by reason thereof the jury returned a different verdict than they would have otherwise, we should not hesitate to reverse the judgment rendered upon the same. We are of opinion, however, that the verdict was not affected.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    Bloomington Opera House, Appellant, v. The Peter Schoenhofen Brewing Company, Appellee.
    1. Landlobd and tenant—contract. A lease is the contract and not the correspondence or conversations prior to its execution.
    2. Landlobd and tenant—construction of voidable lease. When a lease provides that it may he avoided at any time during its life if no license is granted to conduct a dramshop in the premises it is broad enough to authorize avoidance at any time on refusal of a license.
    3. Landlobd and tenant—when lessee may avoid lease. In the absence of bad faith by the lessee where a lease provides that if no dramshop license is granted the lessee may avoid it any time during its life and such license is subsequently refused on application, he may declare the lease void.
    Action for rent. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    DeMange, Gillespie & DeMange, for appellant.
    L. C. Hat and Lackner, Butz & Miller, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Appellant, leased to appellee a certain portion of the premises known as the Bloomington Opera House, Bloomington, Illinois; the lease was for a stated term of five years, with a monthly rental of sixty-five dollars per month, payable in advance, the premises were leased for the purpose of operating a saloon.

The lease contains this provision:

“It is further agreed and understood that in the event there be no license granted for the conduct of a dram shop in the above described premises at any time during the life of this lease, then the same may be declared null and void at the option of the party of the second part.”

Appellee was party of the second part.

A license was granted by the city of Bloomington to conduct a dram shop in these premises, and a dram shop was conducted therein by one Fred Dillcey as the agent of appellee, up to and through the month of January, 1911, when he ceased to operate it, no application for a renewal or continuance of his license was made; he had been arrested and convicted for violation of the ordinances of the city of Bloomington for harboring prostitutes in this place of business. On February 16,1911, application was made to the city council by one Harry J. Smith, as the agent of appellee, to conduct a dram shop in these premises. The records of the City Clerk of the city of Bloomington show that the report of the license committee to whom this application was referred recommended to the council that the application be denied, and on February 24, 1911, the application for a license by Harry J. Smith to conduct a dram shop in these premises was acted upon by the city council. On February 25, appellee exercised the option contained in the lease and elected to declare the same null and void, and so notified appellant.

On April 12, appellant brought this action for the recovery of rent, under and by virtue of the terms of the lease, for the months of February, March and April.

Appellee filed its plea setting forth the refusal of the city Council, during the life of said lease, to grant a license to conduct a dram shop in these premises, and the exercise by appellee of its option to cancel the lease.

It is conceded appellee is liable for the rent for the month of February on account of not exercising the option to cancel the lease until February 25, but appellee denies liability for the months of March and April.

A jury was waived and trial had before the court, which resulted in a judgment against defendant for the rent for the month of February, from which judgment appellant prosecutes this appeal, claiming that it was entitled to judgment for rent for the months of March and April as well as for February.

Appellant insists that the judgment is contrary to the law and the evidence.

The only questions involved are whether the option contained in this lease, that the lessee might declare the lease null and void if the city council at any time during the life of the lease refused to grant a license, might be exercised by appellee upon the refusal of the city council of the city of Bloomington to grant, a license to Harry J. Smith, as the representative of appellee, and whether the application by Harry J. Smith was made in good faith.

If the application of Harry J. Smith for a license was made in good faith and without any fraud on the part of appellee, and on the refusal of the city council to grant such license appellee had the right to declare the lease null and void, then the judgment is right, otherwise, it should be reversed and the cause remanded.

It is contended by appellant that this clause was inserted in the lease for the purpose of protecting the lessee and give him the right to cancel the same provided the city of Bloomington became “dry” territory, and no license could be obtained therein for the purpose of conducting a saloon. While the correspondence had between appellant and appellee seems to indicate that appellant’s position is correct, the lease itself must be held to be the contract and not the correspondence or conversations that took place prior to its execution. The optional clause in the lease does not contain the condition or provision contended for by appellant, but is broad enough to authorize its avoidance by appellee upon the refusal of the city council, at any time during its term, to grant a license to conduct a dram shop in these premises. The application for a license by Harry J. Smith was for this purpose and was denied. There is no contention made by appellant that the application for a license in the name of Harry J. Smith was not made in good faith, and having been made in good faith and with the intention of carrying out the terms and conditions of the lease, and having been denied by the city council, the condition was created under and by virtue of which appellee had the right to declare this lease null and void.

The propositions of law submitted to the court and held or refused by it are in accordance with its findings and judgment, and we find no error of the trial court in holding or refusing the propositions of law; and there being no error in the record, the judgment is affirmed.

Affirmed.


text:
    Edward D. Henry, Appellee, v. Joseph B. Hodge and Etta C. Hodge, Appellants.
    1. Negotiable instruments—when demand not necessary. Demand Is not necessary before suit on a note due and for interest' on others nor before filing a bill to foreclose a mortgage as security therefor.
    2. Mortgages—when may foreclose. Where a mortgage provides that in case of failure to pay any note when due the legal holder may at his option declare the principal note and interest payable and foreclose, on default such holder may so elect and to collect may proceed both at law and by foreclosure bill and proceed with the foreclosure after payment of part due and an agreement to dismiss the suit, unless an agreement for consideration to dismiss the bill is shown.
    3. Stipulations—what not included therein. Where on default on mortgage notes the legal holder proceeds at law and files a bill to foreclose but accepts part payment and agrees to dismiss proceedings, the mortgagor cannot maintain his contention that the agreement to dismiss included the bill, where he was ignorant of it at the time of payment.
    4. Contracts—when no consideration for agreement to dismiss proceedings against mortgagor. Where a mortgagee may at his option declare the principal note and interest payable on default on any of the notes and where he proceeds at law and files a bill to foreclose on default, though the mortgagor believes that an agreement to dismiss proceedings on part payment included all proceedings, yet the mortgagee may continue with his election to declare all the notes due since there is no consideration for the new promise.
    Bill to foreclose mortgage. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    W. Edgar Sampson and Oscar J. Putting, for appellants.
    Eugene E. Bone, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinión of the court.

On September 7, 1910, J. B. Hodge and wife, appellants, executed and delivered to one LaRue Vredenburgh six promissory notes, due, respectively, in six, twelve, eighteen, twenty-four, thirty and thirty-six months, the first five for the sum of fifty dollars each and the sixth for thirty-five dollars, each drawing six per cent interest per annum, payable semi-annually; and executed a mortgage to secure these notes.

The payee died, and the notes and mortgage were assigned and delivered by his administrator to appellee. The first note and all installments of interest on the other notes became due March 7, 1911, they were not then paid. The mortgage contains this recital: “ * * * mortgage and warrant to LaBue Vredenburgh * * * to secure payment on six promissory notes of even date herewith, executed by J. B. and E. C. Hodge, and payable to the order of LaBue Vredenburgh, five notes of the principal sum of fifty dollars, each, payable, respectively, six, twelve, eighteen, twenty-four and thirty months after date, and one of the principal sum of thirty-five dollars, payable thirty-six months after date, * * * provided that in case of neglect or refusal to pay any of the said notes when due * * * then it is hereby agreed the principal note with all accrued interest thereon shall immediately become due and payable at the option of the legal holder of said notes, and this mortgage may then be foreclosed.”

On March 13, appellee brought suit before a Justice of the Peace on the note due on the 7th of March, and also for the first installment of interest on each of the other notes; on the same day appellee filed this bill to foreclose the mortgage, setting forth default in the payment of the first note and in the payment of interest on the other notes, and alleging that under and by virtue of the conditions of the mortgage securing said notes appellee had elected and did declare all of the said sums, together with the interest, except for unexpired time, immediately due and payable, and prayed for the foreclosure of the said mortgage. No demand had been made upon appellants for the payment of these notes or any part thereof by appellee either prior to the commencement of the action before the Justice of the Peace or before the filing of the bill in chancery to foreclose the mortgage, and none was necessary.

After the bill to foreclose the mortgage was filed appellants paid to appellee the first note, and all interest due on the other notes, which was accepted by him, and the suit before the Justice of the Peace was dismissed.

Appellants by their answer allege payment of the first note and the interest installments upon the other notes to appellee after the commencement of the suit before the Justice of the Peace and after the filing of this bill, but aver in their answer that said payments were made by appellants and accepted by appellee under an agreement to dismiss the suits which had been brought to recover said sums of money and contend this agreement included not only the suit before the Justice of the Peace but the bill in chancery.

The cause was referred to the Master in Chancery, who took evidence and reported his conclusions; he found that appellee, by taking and receiving the payments of the money from appellants, waived his right to declare a forfeiture and continue the suit to foreclose the mortgage, and recommended that the bill be dismissed for want of equity, that defendants recover against complainant all costs accruing after said payment. Objections were filed by appellee to this report and findings of the Master, and overruled by him these objections were filed as exceptions and were sustained by the Chancellor, who found the issues for appellee and against the contentions of appellants, and entered a decree of foreclosure, from which decree this appeal is prosecuted.

It is admitted that the notes and mortgage were given as alleged in the bill, also that the payment of the first note and the installments of interest on the other notes were not paid when due. Appellee had the right thereupon to elect to declare the notes all due, and, under the conditions of the mortgage and notes, to collect the same, he had the right to pursue both his remedy at law before the Justice of the Peace and his remedy in chancery by filing the bill to foreclose; and having made that election, he is entitled to proceed with that foreclosure unless appellants maintain their position by the evidence and show a consideration for the alleged agreement by appellee to discontinue any further proceedings.

The contention of appellants that the agreement of appellee was to discontinue all action and included dismissal of this chancery proceeding can not be maintained when the evidence of J. B. Hodge, one of the appellants, is considered. He testified that at the time he made this payment he did not know that the chancery suit had been begun or that any such proceeding was pending; he did not know it until some time after he had paid the money to appellee. While appellants may have supposed that upon payment of that amount of money they were stopping all proceedings, the acceptance of this payment did not bar appellee from continuing with his election he had made to declare all notes due upon the failure to pay the notes when they became due. Payment of an existing obligation is not a consideration on which to base a new premise. Davidson v. Burke, 143 Ill. 139; Stuber v. Schack, 83. Ill. 191.

The claim that appellee agreed to dismiss both proceedings is supported only by the testimony of appellant J. B. Hodge, and is denied by appellee. We can not say that the finding of the chancellor is wrong, but if such agreement was made no consideration therefor is shown; and under the rule which requires this court to affirm the decree unless it is against the weight of the evidence, we are compelled to affirm the decree.

Decree affirmed.


text:
    B. F. Wilson, Appellant, v. Bayard Griffith, Appellee.
    1. Negotiable insteuments—when assignee not innocent purchaser. Where notes are assigned before maturity and paid while owned by the assignee, his assignee taking with notice of payment is not an innocent purchaser.
    2. Evidence—when testimony of maker of note of payment to payee competent. Conceding that on action on a note where payment is alleged, evidence of the maker that he paid the payee is not evidence of payment without a showing that the payee owned the note at the time, yet such evidence is competent to corroborate the payee’s evidence that he paid an indorsee who owned the note.
    3. Appeals and erbobs—when party cannot object to exclusion of evidence. Where in an action on a note a separation agreement between the payee and her indorsee is refused admission because of an objection by one of the parties, such party cannot complain on appeal that he was not permitted to show the transaction relating to it.
    4. Evidence—when testimony as to payment of note not prejudicial. On action on a note where all the facts as to payment are before the jury, the fact that the maker and payee are allowed to state that the note was paid is not prejudicial to the plaintiff, an indorsee.
    Action on promissory notes. Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Lemon & Lemon and George B. Rhoades, for appellant.
    John Fuller, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is the second appeal of this case to this court; a former judgment for appellant upon a verdict directed by the trial court was reversed and remanded. Upon the retrial, appellee recovered a judgment.

This action is based upon two promissory notes, both of which bear date September 1, 1896, one for three hundred dollars, due one year after date, the other for five hundred dollars, due eighteen months after date, each bearing seven per cent interest per annum from maturity; both notes were payable to Savilla Curry and were both signed by Bayard Griffith and H. S. Griffith.

The note for three hundred dollars bears the following endorsements:

Pay to W. J. Curry, Savilla Curry.

Sep. 17, 1897, Rec’d by cash, $200.

Pay to O. O. Storm, without recourse, W. J. Curry.

Pay to B. F. Wilson without recourse, O. O. Storm.

The five hundred dollar note bears the following endorsements :

Pay to W. J. Curry, Savilla Curry.

Pay to O. O. Storm, without recourse, W. J. Curry.

Pay to B. F. Wilson without recourse, O. O. Storm.

This cause of action has been tried four times, with three verdicts for the defendant in the trial court, and one verdict directed for the plaintiff, which was reversed in this court. In each of the other trials another note was involved, but it was not offered in evidence in the last trial. The payee of the notes is the wife of W. J. Curry, the first endorsee.

There were only two questions involved in this controversy, one whether the notes in question were paid by the maker to the endorsee, W. J. Curry, or his agent while the notes were owned by him, the other whether plaintiff is an innocent purchaser of these notes.

These notes were given September 1, 1896, for the rent of a farm which Savilla Curry leased to her son, Bayard Griffith; the record discloses that the notes were assigned to W. J. Curry before maturity, the exact date of their assignment not being shown.

It is conceded that the payment of two hundred dollars endorsed on the three hundred dollar note of date September 17, 1897, was paid on that date by Savilla Curry to W. J. Curry and that W. J. Curry was then the owner of the note. No payments were made by Bayard Griffith to W. J. Curry, but payments on these notes, which were for the rent of the farm of Savilla Curry, were made direct to her, without inquiry as to whether or not she was then the owner of the note and without seeing that any endorsements were made upon the notes; Savilla Curry testifies that she paid W. J. Curry the amounts which Bayard Griffith paid to her on account of these notes; these payments, except the one of two hundred dollars, Septemher 17, 1897, are denied by W. J. Curry, and it was a question of fact for the jury to determine from all the evidence whether or not payments were made as claimed by appellee. If these payments were so made, at a time when W. J. Curry owned these notes, then as to W. J. Curry, this was a payment of these notes and no assignee of W. J. Curry who took these notes with knowledge of such facts could maintain an action thereon. Savilla Curry testifies that she made these payments to W. J. Curry between September 17,1897, and Christmas, 1898; W. J. Curry delivered to Mort L. Herron, a grocer in Shelbyville, Illinois, two notes, one for five hundred dollars and one of the value of three hundred dollars, Herron received these notes during the fall of the year 1899. After this grocery bill was paid, he either returned these notes to W. J. Curry or delivered them to appellant Wilson at the request of Curry. If these two notes were the ones in question, then the notes were owned by W. J. Curry at the time of the payments alleged to have been made by Savilla Curry to him. Savilla Curry testifies that Wilson came to her in the fall of 1899 and showed her these notes, •that they were past due and he wanted to know what she had to say about them. She testifies that she told him then the notes were paid. If this conversation took place as related by Mrs. Curry, then Wilson had notice that the notes were paid, and was not an innocent purchaser, although the notes were first assigned to W. J. Curry before maturity. When this case was before this court at a prior term and in the opinion reported in 155 Ill. App. 180, we there held, and see no reason now to change our views, that although the notes were assigned before maturity to W. J. Curry, if after such assignment and while he was the owner thereof; the notes were paid to him, an assignee of his, taking the notes with such notice of payment was not an innocent purchaser.

The questions involved in the trial of this cause were questions of fact, and if the cause was submitted •to the jury without error in the rulings of the trial court in the admission and rejection of evidence and the giving of instructions, and the verdict is not clearly and manifestly against the weight of the evidence, then the verdict of the jury will not be disturbed by this court. The jury by their verdict have found all questions of fact against the contention of the appellant, and there is sufficient evidence in this record to support their verdict.

It is insisted by appellant that the court erred in. sustaining a motion to exclude the statement by Bayard Griffith, one of the makers of the notes, that he had paid them, this statement was held to be a conclusion by the court and excluded from the jury. Defendant Griffith was entitled to show that he had paid the' money to his mother, the payee of the note, and while this was not evidence of the payment of the note without showing that she at that time owned the notes, the evidence was competent as a matter of corroboration of her evidence that she had paid W. J. Curry the amount due on these notes.

Appellant also insists that the court erred in refusing to permit him to show that certain moneys paid or left by W. J. Curry with Mort. L. Herron was left at the time of and is a part of the transaction concerning which defendant offered exhibit number one. Defendant’s exhibit number one related to a separation agreement between W. J. Curry and Savilla Curry, and was refused admission in evidence on account of the objection of appellant; this agreement not being before the jury by reason of the objection of appellant, appellant cannot now complain that he was not permitted to show the transaction relating to it.

All the facts which were relied on to constitute payment were before the jury, the fact that defendant or Mrs. Curry were permitted to answer that the notes were paid was not prejudicial to the appellant.

Plaintiff criticizes the giving, on the part of the defendant, of the instruction marked “K,” upon the contention that it singles out certain evidence or brings it before the jury with undue prominence. The instruction does not contain any reference to any evidence whatever, and why this criticism should be made we are unable to see.

"While the record is not absolutely free from error, we do not find any error therein which can be held to be prejudicial to the plaintiff, and considering the fact that the defendant has had three verdicts in the trials of this cause, we think it is time that this litigation should end.

The judgment is affirmed.

Affirmed.


text:
    Frank Hoblit, Plaintiff in Error, v. Thomas J. Howser, Defendant in Error.
    1. Appeals and errors—when appellate court competent to pass on evidence. The appellate court is as competent to pass on the evidence as the trial court where the trial court did not hear the witnesses testify and where the evidence was taken and reported by a master and findings made thereon by the court.
    2. Evidence—when secondary evidence of letters admissible.

    Secondary evidence of the contents of letters is admissible where the preliminary proof shows that the writer either destroyed or mislaid them after the transaction was closed and that he is unable to find them and has no knowledge of their existence or whereabouts.
    Bill to foreclose mortgage on land. Error to the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    C. Everett Smith, for plaintiff in error.
    Humphrey & Auderson, for defendant in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

On the 7th day of May, 1904, one W. C. Watkins, and Eliza A. Watkins, his wife, borrowed from T. J. Howser, the defendant in error, five hundred and fifty dollars, and as evidence of this indebtedness made their note of that date, payable three years after date; to secure this note Watkins and his wife executed and delivered to Howser a mortgage upon part of lot 3, block 42, original town of Atlanta, Logan county, Illinois. Watkins was indebted to the First National Bank of Lincoln of which Frank Hoblit was cashier in order to secure the indebtedness due the bank from Watkins, Hoblit entered into correspondence with Watkins, who had moved to the state of California, and obtained from Watkins a deed to the premises which Watkins and his wife had mortgaged to Howser, this deed was dated August 30,1904, and was duly recorded in Logan county. After the deed from Watkins and wife to Hoblit was placed upon record, Howser, in October, 1904, placed his mortgage of record, the mortgage was not recorded until after the deed from Watkins and wife to Hoblit. About one year after the making of the deed from Watkins and wife to Hoblitr Howser filed the bill in this cause to foreclose his mortgage.

The bill of foreclosure alleges that at the time Hoblit took the conveyance of this property from Watkins and wife he knew of the mortgage from Watkins and wife to Howser, and had actual knowledge of the existence of this mortgage and the amount thereof. Hoblit in his answer denies all knowledge of the existence or execution of the mortgage from Watkins and wife to Howser, and insists that he took the title to this lot in fee simple, free of all encumbrances whatsoever. The Mastei in Chancery to whom this cause of action was originally referred died during his term of office, the taking of evidence was completed by his successor; no finding was made of facts or law by the Master, bnt the evidence taken was reported to the court. In passing upon this evidence, the trial court found the issues in favor of the complainant and entered a decree foreclosing the mortgage as prayed; to reverse that decree Hoblit prosecutes this appeal.

There is no question of law involved in this cause, the appellant Hoblit conceding that if the conveyance of this property by Watkins and wife to him was tíiade with actual knowledge to him of the existence of this mortgage and the indebtedness secured thereby, then complainant is entitled to a foreclosure; but appellant Hoblit insists that he had no knowledge whatever of this indebtedness or the existence of this mortgage to Howser, that he took the title to the property as cashier of the bank in good faith and for valuable consideration, and that his title is not subject to the mortgage. It is also insisted by appellant Frank Hoblit that the finding of the trial court in this case should not have the binding effect of a verdict of the jury because the Master in Chancery heard this evidence at various times and saw the witnesses when upon the stand, the trial court did not hear the witnesses testify and therefore this court is as competent and capable of passing on the testimony as was the trial court. The only question at issue in this case being one of fact and that is whether, or not the appellant Hoblit had either actual or constructive notice, such as would have put him upon inquiry, of this mortgage, and if he had then that he is bound thereby. Watkins testified that the entire transaction between Hoblit and himself was carried on by correspondence, that in the letters written by Watkins to Hoblit he notified Hoblit of the existence of this indebtedness to Howser and notified bim that this mortgage was made to secure that indebtedness and that it was a lien upon these premises. Hoblit does not deny the carrying on of these negotiations by correspondence, but denies that any such notice was given him by Watkins. The deposition of Watkins was taken in California and read in the trial, and in that deposition the contents, or substance of the contents, of the letters which passed between Watkins and Hoblit was testified to by Watkins; and it is insisted by appellant that no sufficient foundation was laid for the introduction of this testimony on the part of Watkins. The record discloses, however, that Watkins had either destroyed or had mislaid all of these letters, that he never had any supposition or knowledge that they would ever be of any value or that there would ever be any necessity for their use, and that they were destroyed in the natural course of business after the transaction was closed, that he had made diligent search in the places where such letters were usually kept or would usually be found, that he has no knowledge of the existence or whereabouts of the letters now, and that he is unable to find or produce them. This preliminary proof made by complainant was sufficient to authorize the admission of secondary evidence of the contents of these letters, and the court did not err in admitting it. We are also satisfied that the Chancellor properly found upon this record that Frank Hoblit had due and actual notice of the existence of this mortgage prior to the time that he accepted or received the conveyance of these premises, and that whatever rights said Frank Hoblit has in and to said premises are subject and subservient to the rights of the complainant Howser, and that complainant is ■ entitled to the foreclosure of this mortgage.

From a careful examination of this entire record, we are satisfied that the trial-court committed no error therein which was prejudicial to the appellant, and the decree of the court below will be affirmed.

Decree affirmed.


author: Mr. Justice Philbrick

text:
    Eva Mardis, Appellee, v. St. Louis & Springfield Railway Company, Appellant.
    1. Verdicts—when excessive. A verdict for $750 for personal injuries is excessive and a remittitur of $250 should be required where it rests almost entirely on the testimony of the plaintiff and a witness who is her employer, which it seems exaggerates the damages and is unreliable, and where physicians testify that the injury is not permanent, that plaintiff was incapacitated and suffered for about six weeks, and that her actual expenses were $66.
    Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 15, 1912.
    Graham & Graham, for appellant.
    A. M. Fitzgerald, for appellee; Gillespie & Fitzgerald, of counsel.
   Mr. Justice Philbrick

delivered the opinion of the court.

Plaintiff sues the defendant to recover for alleged injuries claimed to have been sustained by her by reason of the alleged negligence of defendant in starting a car on its interurban line when plaintiff was about to board said car, by the sudden jolting and starting of the car, whereby she was thrown against the car and injured. She recovered a judgment for seven hundred and fifty dollars, from which defendant appeals.

The declaration in this case charges the defendant with being the owner of and operating the line of railroad described in the declaration, and that while plaintiff was attempting to board said car at the corner of Spring and Allen Streets in the city of Springfield the car was started without warning to her, with a sudden and violent jerk, whereby plaintiff was thrown against the platform of said car, or the car was caused to strike against her, and her knee was injured in such a manner as to cause the damage for which this action is brought.

The only ground urged by defendant for reversal is that the damages are excessive; and it being conceded in the argument of counsel for defendant that plaintiff is entitled to recover, the only question for this court to determine is whether or not, upon this record, the damages are excessive.

While it is the general rule that this court will not substitute its judgment for that of a jury- upon questions of fact, this rule must be subject to the limitation that where the court, from the record, must hold that plaintiff has not sustained injuries which will justify rendering judgment for the amount of damages returned by the jury.

Upon this record, this court is compelled to arrive at the conclusion that the damages alleged to have been sustained by plaintiff have been more or less exaggerated by plaintiff and witnesses who have testified to the extent of this injury. In order to affirm this judgment, it would be necessary to rely almost wholly upon the testimony of the plaintiff and one Crum, by whom plaintiff had been employed as housekeeper for several years. There was no eye witness other than the plaintiff to this injury, and the statements made by her as to how or in what manner the injury occurred are so conflicting that it leaves considerable question as to whether or not she was injured in the manner in which she claims.

The record discloses that plaintiff had for a considerable length of time prior to this time been suffering from and receiving medical treatment for a nervous disposition and condition which would have, according to the testimony of the physicians, a great tendency to cause her to exaggerate the injuries received by her; and the record discloses that the witness Crum had taken a very active interest in this case, was endeavoring to act as agent of plaintiff in trying to secure a settlement, and cannot be considered as an impartial witness.

The evidence, of the physicians who testified, is that there is no permanent injury, that plaintiff suffered with this injury and was incapacitated from her work for about six weeks, but that all of her ailments during that time was not due to this injury, and with the exception of six weeks during which she was incapacitated the plaintiff has been able to perform all of her duties as housekeeper for Mr. Crum and his three children, in a house of ten rooms, and has done all of the work except the washing. The actual expenses of the plaintiff, including doctor’s bills, was only sixty-six dollars, and she has been treated by two doctors.

From a careful examination of this record, we are compelled to arrive at the conclusion that the trial court should have required plaintiff to have remitted two hundred and fifty dollars from this verdict, and the plaintiff will be required in this court to enter a remittitur of two hundred and fifty dollars within ten days, and upon the entering of such remittitur the judgment will be affirmed for five hundred dollars. Upon the failure or refusal of the plaintiff to enter such remittitur within ten days, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    George W. Helmick, Appellant, v. William J. Carter, Appellee.
    . 1. Appeals and errors—when wrongful sustaining of demurrer waived. Error in sustaining a demurrer to common counts in a declaration is waived where after taking leave to amend generally such counts are omitted and no election is made to stand on them.
    2. Duress—when payment is voluntary. Payment of money to prevent legal action on a subsisting claim is a voluntary payment.
    3. Pleading—fraud and deceit. In pleading fraud and deceit the acts which constitute it must be set forth.
    4. Pleading—conclusions. It is not sufficient to state conclusions but the pleader must set forth such facts that the court may determine therefrom whether the conclusions are justified.
    5. Usuby—recovery hack. Usurious interest once paid cannot be recovered.
    6. Fbaud and deceit and dtjbess—threats to foreclose mortgage. Threats to begin foreclosure proceeding* on a mortgage given to secure notes alleged to carry usurious interest do not amount to fraud and deceit or duress.
    7. Pleading—when error in sustaining demurrer not shown. Error in sustaining a demurrer to a special count setting up usury and fraud and deceit is not shown where the count does not state the term of the loan, the date of its execution, or the time when it became due but merely states that the loan was to draw five per cent, interest, and that $1,000 in addition was paid and no payment is averred except the $1,000 which is sought to be recovered.
    Action in assumpsit. Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochean, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Stone & Gray, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by George W. Helmick, plaintiff, against William J. Carter, defendant.

To the original declaration, consisting of one count, the court sustained a demurrer; leave was taken by plaintiff to amend the declaration and file additional counts, an amended declaration was then filed, containing two special counts with the common counts added, defendant filed a general demurrer to this amended declaration and each count, this demurrer was also sustained. Plaintiff took leave to again amend this declaration, the second amended declaration contains two special counts, in this amendment the common counts were omitted; to this second amended declaration a general and special demurrer was filed and sustained by the court. Plaintiff again took leave to amend this declaration, and filed what is designated in the record as the third amended declaration, consisting of but one special count, a general and special demurrer was filed to this and sustained by the court; plaintiff then elected to stand by the third amended declaration. Judgment was rendered against plaintiff in bar of action and for costs, and plaintiff prosecutes this appeal from that judgment.

Plaintiff insists that the court erred in sustaining demurrer to the declaration and especially to the common counts. While the common counts are not subject to demurrer and it is error to sustain a demurrer thereto, after the court sustained the demurrer to the two special counts and the common counts, plaintiff took leave generally to amend this declaration and in the third amended declaration no common counts were added; plaintiff having taken leave to amend his declaration generally and having omitted the common counts from his declaration as then amended and not having elected to stand by the common counts to which demurrer had been wrongfully sustained by the court, he cannot now complain of the action of the court in sustaining the demurrer to the common counts.

The only question presented by this record is whether or not the court erred in sustaining the demurrer to the third amended declaration, which consisted of but one special count.

This special count avers that plaintiff was indebted in the sum of ten thousand dollars, which sum was secured by a mortgage upon certain farm lands owned by plaintiff in Macon county, Illinois; that said mortgage became due and that defendant thereupon notified and informed plaintiff that unless such indebtedness was immediately paid, proceedings would be commenced to foreclose said mortgage. That plaintiff, for the purpose of avoiding foreclosure proceedings and a sale of his land, entered into negotiations with the defendant to secure a loan of ten thousand dollars, that defendant agreed to loan plaintiff: ten thousand dollars on his said lands at five per cent, interest per annum; and plaintiff, relying upon the promise of defendant to so furnish him said money, did not undertake or attempt to secure said sum of ten thousand dollars from any other source; that when the time came to complete the negotiations and defendant furnish the money, and at a time when it was necessary that the ten thousand dollars loan thus due should be liquidated, defendant informed plaintiff that he would not furnish said ten thousand dollars to the plaintiff except upon the condition that plaintiff pay to the defendant the sum of one thousand dollars as additional interest upon the said loan. Plaintiff further avers that said representations made by defendant that the said ten thousand dollars mortgage upon his said farm would be immediately foreclosed was false and fraudulent and known by defendant to be false and made for the purpose of compelling plaintiff to enter into negotiations with the defendant, and that plaintiff believed said representations to be true and desiring to avert and prevent the sale of his said premises, as defendant represented they would be sold, agreed to and did make and execute to the defendant his notes in the amount of one thousand dollars, and that by reason thereof he was compelled to and did pay the sum of one thousand dollars to the defendant, that the same was usurious interest and was obtained by defendant by fraud and false representations. That these notes before maturity were assigned by defendant to one E. Cr. Argo, and that before the time of maturity of said notes representing said sum of one thousand dollars, defendant, by means of letters written to him, threatened to sue plaintiff and his securities upon said notes unless they were immediately paid, and that by reason of the alleged threats to sne thereon plaintiff paid said notes amounting to one thousand dollars. That said notes representing said one thousand dollars were additional interest upon said loan of ten thousand dollars and were usurious; and that same were paid by reason of the threats made by defendant at a time when plaintiff was in financial straits, and that these threats amounted to duress and that same was not voluntarily paid.

It has been repeatedly held by the Supreme Courts of this and other states that the payment of money to prevent the bringing of legal action against a .party upon a subsisting claim is not duress, and that a payment made to prevent such legal action is a voluntary payment.

It is a familiar rule of practice that a pleading will be taken most strongly against the pleader, and that in pleading fraud and deceit the acts which constitute that fraud and deceit must be set forth in the pleading, and that it is not sufficient to allege that the actions were fraudulent and deceitful. Lemon v. Stevenson, 36 Ill. 49; Pool v. Roberts, 19 Ill. App. 438.

It is another rule of practice well recognized that the pleader must set forth such facts in his pleading that the court may determine from an inspection of the facts as alleged whether or not the conclusions drawn by the pleader were justified by the facts, and it is not sufficient for the pleader to merely state conclusions. Stanley et al. v. C. T. & S. Bank, 165 Ill. 295; Home Bldg, and L. Assn. v. McKay, 217 Ill. 551.

The special count to which plaintiff contends it was error to sustain the demurrer does not set forth the term for which the ten thousand dollar loan was made, the date of its execution, or the time when it became due, and the statement of fact that the ten thousand dollar loan was to draw five per cent, interest and that one thousand dollars in addition thereto was paid does not constitute a sufficient statement of facts to enable the court to determine whether or not the payment of one thousand dollars in addition to the five per cent, was usurious or not, the law of this state permitting a party to contract for the payment of seven per cent, interest without making the contract usurious; and the court could not determine from the facts set forth that even if the additional one thousand dollars was paid would make the whole contract usurious, and plaintiff does not aver in his declaration that he has paid the ten thousand dollars or any interest thereon whatever except the one thousand dollars which it is sought to recover back; but conceding that the entire indebtedness had been paid, it is a rule too well established to admit of argument that usurious interest once paid cannot be recovered back.

Plaintiff does not in his declaration set forth any acts done by defendant or any threats made by him aside from the threat that foreclosure proceedings would be immediately commenced unless payment was made, and these do not constitute fraud and deceit or duress.

The third amended declaration filed by plaintiff does not state a cause of action, and the trial court did not err in sustaining a demurrer thereto.

The judgment of that court is affirmed.

Affirmed.


text:
    _ Frank T. Smith, Appellee, v. Peter J. Hunter, Appellant.
    1. Motion fob new trial—what rulings need not he assigned as error therein. Trial court rulings which, appear upon the record need not be assigned -as error on motion for new trial, since such errors save themselves unless waived by the party insisting thereon.
    2. Bill of exceptions—when not necessary. A bill of exceptions is not necessary to save questions as to the trial court’s rulings on the pleadings.
    3. Demurrer—when properly sustained. Where, pending litigation on a contract for the sale of land, a contract is made which supersedes the prior one as to possession, special pleas setting up the original contract in an action on the second contract for rent due are demurrable, since the prior contract is no defense to an action on the second concerning possession.
    4. Set-off—when vendee not entitled thereto. Where a contract for the sale of land becomes void by its own terms because of the vendor’s inability to furnish a merchantable title, but the vendor sues for rent under a second contract concerning possession made pending litigation as to title, the vendee is not entitled to set-off for damage because of the vendor’s failure to furnish such title.
    5. Contracts—when action cannot he brought thereon. No action can be maintained by either party to a contract which is void ah initio or which becomes void by the terms and conditions expressed and agreed to.
    6. Errors—when waived. Alleged errors in holding and refusing propositions of law are waived if not argued.
    Action for rent. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Thomas L. Jarrett, for appellant.
    Patton & Patton, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Appellant and appellee entered into a contract for the sale and transfer of certain real estate; the essential portions of which contract are as follows:

“Articles of Agreement, made and entered into this 4th day of January, A. D. 1908, between Frank T. Smith, party of the first part, and P. J. Hunter, party of the second part, witnesseth: That the party of the first part has this day sold unto the party of the second part, and the party of the second part has this day bought of the party of the first part, for a consideration of fifteen thousand dollars ($15,000) all that piece and parcel of real estate, situated in the . County of Sangamon, State of Illinois, and described as follows, to-wit:

********
“And the party of the second part in consideration of the agreements of the party of the first part hereinafter set forth, agrees to execute and deliver unto the party of the first part on the execution of these presents, his promissory note with Kellie Hunter as surety therein due March 2nd, 1908, in the sum of one thousand dollars ($1,000) with seven per cent, interest thereon after due, and to pay the further sum of seven thousand dollars ($7,000) upon the second day of March, A. D. 1908, upon the execution and delivery of a Warranty Deed by the party of the first part, conveying the said premises unto the party of the second part. ********
“Arid, the party of the first part agrees to furnish unto the party of the second part an abstract of title to said lands, showing a good, merchantable title in the said party of the first part to said lands. In case the party of the first part shall not furnish an abstract of title showing a good, merchantable title, then the said note for the sum of one thousand dollars ($1,000) shall be returned by the party of the first part unto the party of the second part, and in such case this contract shall be null and void, otherwise to remain in full force and effect.”

The time for performance was extended to March 11, 1908, when appellant refused to comply with the trade, alleging as his ground for refusal that the abstract of title furnished did not show a merchantable title. His contention in this regard was upheld on a bill for specific performance filed by appellee against appellant, and finally determined in the Supreme Court in Smith v. Hunter, 241 Ill. 514.

Pending the determination of the question as to whether the title was merchantable, appellant and appellee entered into another contract, which is as follows :

“Whereas, a certain contract for sale of certain land by one Frank T. Smith to one Peter J. Hunter was entered into on the 4th day of January, A. D. 1908;
“And whereas, said Hunter claims that such a title as is contemplated by said contract has not been tendered him, and said Smith claims that such a title has been duly tendered;
“And whereas, efforts are now being made by said Smith to satisfy said Hunter as to the title being such title;
“And whereas, said Hunter is now in possession of said lands;
“And whereas, it is the mutual desire of both Smith and Hunter that said lands should be properly cultivated and cared for until said dispute as to the title thereof can be settled.
“Now, therefore, it is agreed by and between said Frank T. Smith and Peter J. Hunter (such agreement to be without prejudice to the rights of the said parties under said contract), that the said Hunter shall remain in possession of said lands until said dispute is terminated either by agreement or litigation;
“And it is further agreed that in case it is finally determined that the title so tendered shall be such title as is contemplated by the said contract the said Hunter shall be considered as having held said lands under and by virtue of the deed executed by said Smith and wife, on the second day of March, A. D. 1908, and tendered to said Hunter.
“And it is further agreed that in case it is finally determined that the title so tendered shall not be such a title as is contemplated by said contract, the said Hunter shall be considered as having held said lands as tenant of said Frank T. Smith upon the following-terms and conditions, viz:
“The said Peter J. Hunter shall pay unto the said Frank T. Smith an amount equal to ten ($10,00) dol-
lars per acre per annum for said lands up to and including March 2nd, 1909, and in case the controversy herein shall be finally determined on said second day of March, 1909, a new arrangement shall be then made as to the possession of said lands pending litigation and determination of said controversy.
“It is agreed that said Hunter may make such improvements on said premises as he shall see fit, and shall have the right to remove the same in case upon the final determination of the controversy it shall be held that said Smith cannot make such title to said lands as is contemplated in said contract, of date January 4th, 1908. It being expressly understood that nothing herein contained shall be construed as an admission on the part of said Smith that he is still the owner of said lands, but this form of lease is attached for the purpose of providing for the contingencies mentioned in the attached stipulation and agreement. It is agreed that the lands referred to herein are the lands described in said contract, which is hereby referred to for such description.” * * *

Appellant was in possession of the premises at the time of the execution of the second contract and remained in such possession until February, 1910, when he surrendered them to appellee. Appellant paid to appellee the rent due for the year commencing March, 1908, but denies liability to pay any rent for the year commencing March, 1909.

This action is brought to recover rent for the year 1909. The declaration consisted of one special count on the second contract or lease and the common counts; appellant pleaded two special pleas and the general issue. In the special pleas appellant avers that the lease contract expired by its own terms on the second day of March, 1909, and that no new arrangement was made by virtue of which appellant was to retain possession of the premises, and that he entered the premises under the contract of purchase, the essential parts of which have been hereinbefore set out, and after March 2, 1909, held possession as purchaser and not as a tenant, that the relation of landlord and tenant did not then exist, and that appellee having failed to comply with the terms of this contract to furnish merchantable title, appellant is not liable for any rent for the year 1909.

The court sustained a demurrer to each of the special pleas, and thereupon appellant filed a plea of set-off, claiming damages to appellant by reason of the failure of appellee to carry out the terms and conditions of the contract of sale, based on the difference between the contract price and the market value, also pleading set off under common counts. Issue was joined on these pleas, appellant withdrew the plea of general issue, and assumed the burden of proof. Trial was had by the court without a jury, the court found the issues for the plaintiff and rendered judgment against defendant for $873.30, from which appellant appeals.

Appellant insists as a cause of reversal that the court erred in sustaining demurrers to the special pleas, in holding and refusing the propositions of law submitted to it, in finding the issues for the plaintiff, and rendering judgment against the defendant.

Upon the contention that the court erred in sustaining demurrers to the first and second special pleas, it is insisted by appellee that this question cam not be raised in this court for the reason that no error in the ruling thereon was assigned in the written motion for a new trial.

It is unnecessary in a motion for a new trial to assign as error any ruling of the trial court which appears upon the record, all errors in the record proper properly save themselves, unless waived by some act of the party insisting thereon; a bill of exceptions is never necessary to save a question of the ruling of the trial court upon the pleadings. Celia v. C. & W. I. R. R. Co., 217 Ill. 326.

The original contract for the sale of these premises entered into between appellant and appellee, was, so far as possession of the premises is concerned, modified by the contract of date March 25, known as the lease contract, and this contract having been made subsequent to the one of date January 4, 1908, supersedes that contract in regard to occupation and possession of the premises, and thereafter appellant was in possession of these premises under and by virtue of the contract of date March 25, 1908, and the declaration having declared upon that contract, and the special pleas filed by appellant, to which demurrers were sustained, pleaded the contract of January 4, this contract could not be made a defense to an action on the contract of March 25, and the pleas failed to answer the allegations of the declaration, and the demurrer was properly sustained to them.

Upon the contention that appellant was entitled to set off against this cause of action any damage occasioned to him by reason of failure on the part of appellee to fulfil the contract of sale; that contract provided that if the title offered by appellee was not a merchantable title, then the contract should be void and the $1,000 note should be returned. The title was by the Supreme Court held not to be merchantable; the contract, thereupon, became void under and by virtue of its own conditions and terms agreed to by appellant and appellee and the $1,000 note was returned. Where a contract is void ab-initio, or where it becomes void by the terms and conditions therein expressed and agreed to by the parties, no action can be maintained thereon by either party; and appellant cannot maintain his plea of set-off.

While errors are assigned upon the rulings of the court in holding and refusing propositions of law, no argument is presented by appellant in support of the same, they are therefore waived and are not before this court for consideration.

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

Affirmed.


text:
    Lee Kincaid for use of Illinois National Bank, of Springfield, Illinois, Appellee, v. E. B. Overshiner, John S. Hurie and Henry H. Colby, Appellants.
    1. Corporations—contracts. Where, to procure a sale of stock, certain officers of a corporation enter into an agreement to purchase it at any time at the price paid, such agreement is part of the original undertaking and consideration therefor passes to the corporation and is sufficient, and consideration or benefit to the officers is unnecessary.
    2. Contracts—when an agreement does not lack, mutuality. A written agreement by promoters of a corporation to purchase stock sold at any time at the price paid, entered into to procure a sale, does not lack mutuality but is a part of the purchase transaction, and the fact that the written agreement taken alone lacks mutuality will not necessarily defeat an action thereon.
    3. Statute of limitations—when agreement is in parol thereunder. It would seem that where an agreement rests partly in writing it is contrued as a parol agreement and controlled by the Five-Year Statute of Limitations.
    4. Statute of limitations—when agreement is not partly in writing and partly in parol. Where a written agreement by promoters of a corporation to purchase stock at the sale price at any time is so complete that acceptance by the party seeking to enforce it need only be shown, such agreement does not rest partly in parol and partly in writing and come within the Statute of Limitations as to parol agreements.
    5. Assignment—when not necessary. Where a purchaser of stock receives an agreement by the promoters to purchase the stock at any time for the amount paid, and pledges the stock and agreement as security for a loan, no assignment is necessary to invest the pledgee with the right to accept the pledge and to sue in the purchaser’s name.
    6. Practice—when immaterial to defendant that action is for another’s use. Where the purchaser of stock who received an agreement from the promoters to purchase at any time for the price paid is plaintiff in an action on such agreement, it is immaterial to the defendants whether the action is for the use of a pledgee or the assignee in bankruptcy.
    7. Tender—when unnecessary. Where demand is made for performance of an agreement to purchase stock at the price paid but ■ liability is denied and performance refused, no tender is necessary before action.

      8. Practice—court’s discretion as to filing of additional count. The court may in its discretion allow plaintiff to file an additional count after the close of the evidence.
    9. Tender—what is sufficient. On refusal to perform an agreement to purchase stock at the price paid and denial of liability, the plaintiff need only bring the certificates of stock into court for delivery to defendant.
    10. Contracts—what is not a defense to action on an agreement. On action on an agreement hy promoters to purchase stock at any time for the price paid, recovery cannot be defeated on the ground of unreasonable delay because the plaintiff held it for two years when it was at par, and then for more than five when the corporation was insolvent, before compelling performance.
    Appeal from the Circuit Court of Menard county; the Hon. Gut it. Williams, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.

      Certiorari denied hy Supreme Court (making opinion final).
    Watkins & Golden, for appellants.
    Barber & Barber and G. E. Nelson, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

On September 15, 1905, defendants were promoting and selling stock of the Petersburg Telephone Company; Lee Kincaid purchased, at the solicitation of defendants, forty shares of the stock and paid the treasurer of the corporation $1,000, that being the par value of the forty shares.

In order to induce Kincaid to buy this stock, the defendants signed the following agreement:

“We, the undersigned, agree to purchase from Lee Kincaid at any time he should desire to sell to them his stock in the Petersburg Telephone Company, subscribed by him this day, at the price at which he pays for same, namely, $1,000 for forty shares.

“Dated, this 15th day of September, 1905.

“E. B. Overshiner,

“John S. Hurie,

“Henry H. Colby.”

In the fore part of 1909, Kincaid became indebted to the Hlinois National Bank of Springfield, beneficiary plaintiff, and pledged this stock to it as security for that indebtedness. In May, 1910, Kincaid filed his petition in bankruptcy, and George E. Keys was appointed trustee of his estate.

The evidence is conflicting as to whether Kincaid made a demand upon defendants to comply with their agreement to purchase this stock before it was pledged as security, but we do not consider that question as material.

On September 9, 1910, the following notice was mailed to defendants and duly received by them:

‘6 Springfield, Ill., Sept. 9, 1910.
“Messrs. E. B. Overshiner, Jno. S. Hurie, Henry H.
Colby.
“Gentlemen:—On September 15, 1905, you signed a written agreement, agreeing to purchase from Lee Kincaid, at any time he should so desire, the forty (40) shares of the capital stock of the Petersburg Telephone Company at the price which he paid for the same in reliance upon y.our agreement, namely, one thousand ($1,000) dollars.
“The undersigned, and each of them, have elected to sell said stock to you and to have you purchase the same at said price. You may obtain the stock by calling upon the undersigned, George E. Keys,
Trustee, upon payment of the said purchase price of one thousand ($1,000) dollars.
“The undersigned, and each of them, will execute and deliver to you any and all transfers and assignments that may be necessary and proper to fully vest the title of stock in you.
“Kindly let this have your immediate attention and oblige,
“Yours respectfully,
“Lee Kincaid,
‘1 George E. Keys, Trustee of the “Estate of Lee Kincaid, Bankrupt.
“Illinois National Bank,
“By H. M. Merriam, Cashier.
“Said bank holds said stock as collateral.”

This action was begun January 1,1911, on the agreement of date September 15, 1905; a jury was waived and trial had by the court, and a judgment was rendered against defendants for ten hundred thirty-seven and 50-100 ($1,037.50) dollars and costs of the suit.

Defendants contend that the written agreement of September 15, 1905, was without consideration; that it is unilateral; that action thereon is barred by the five year statute of limitations; that the agreement was a personal one to Kincaid, and was not a matter of assignment, and no recovery can be had thereon for the use of any other person; and that before bringing this action it was necessary that the shares of stock be tendered by the plaintiff on demand for payment. Upon all of these contentions, propositions of law were submitted by defendants to the trial court and refused by it.

Upon the contention that the agreement was without consideration. It was unnecessary that any consideration for the undertaking should pass, or be a benefit to, the defendants; they were officers or directors in the corporation and promoting it, and the promise to purchase this stock by defendants was part of the original undertaking by, Kincaid and the consideration therefor was received by and passed to the corporation which defendants were then promoting, and this was sufficient consideration for their agreement to purchase of date September 15.

On the contention that the ■ agreement is unilateral and lacks mutuality. If this agreement was the sole transaction between plaintiff and defendants this contention might be well founded, but the original purchase of the stock by Kincaid and the written agreement by defendants were part of one transaction, and even though the written agreement considered alone lacks mutuality, this will not necessarily defeat an action thereon. Where a unilateral contract has been performed by one party and the consideration for its execution has been received by the other party, the party who has performed may insist on the fulfillment of the contract. Plumb v. Campbell, 129 Ill. 101; Seyferth v. G. & S. R. R. Co., 217 Ill. 487.

The contention that the agreement of September 15, 1905, is a parole agreement because it is not complete in itself but requires oral proof to show its acceptance by plaintiff before recovery can be had; and under the rule of law that where an oral agreement rests partly in writing and partly in parole it must be held to be a parole agreement and be controlled by the five year’s statute of limitations, cannot be maintained where the agreement in writing is so complete in itself that in order to enforce its execution nothing remains but to show acceptance on the part of the party seeking to enforce it, but the agreement cannot be held to rest partly in parole and partly in writing and be governed by the statute of limitations concerning parole agreements. While it is true that where the agreement rests partly in parole and partly in writing it is construed as a parole agreement, this agreement is not of that character. Plumb v. Campbell, supra; Ames v. Moir, 130 Ill. 582.

Upon the contention that the agreement is not assignable and was a personal privilege to Kincaid, without determining the question of its assignability, the stock and the agreement were pledged as security for an indebtedness due the usee from Kincaid, and to invest the usee with the right to accept the pledge as security and maintain an action in Kincaid’s name for its use upon the collateral so pledged, no assignment was necessary; Kincaid is the plaintiff and it is immaterial to defendants for whose use the action is brought, whether it be the usee named or the trustee in bankruptcy; if there is any question between the usee and the trustee as to who is legally entitled to the fund when returned, that can be determined in a bankruptcy proceeding.

Upon the question of tender. By the letter of September 9, sent to defendants and received by them, demand was made that they perform this agreement; this was before suit was brought, defendants had consulted counsel and had determined to refuse performance. When it is shown tender would be useless or unavailing, it is unnecessary to make it, even if it was a condition precedent, where liability is denied and performance refused, no return of the stock or offer to return' is necessary before bringing the action.

It was discretionary with the court to permit the filing of an additional count by plaintiff after the close of the evidence. The bringing of the certificates of stock into court for delivery to defendants was all that plaintiff was required to do. Osgood v. Skinner, 211 Ill. 229; Clark v. Weis, 87 Ill. 438.

Defendants insist that at the time of the execution of the agreement by them the stock was worth par value and so continued until 1907, that the delay by plaintiff in demanding performance is unreasonable, that having taken the stock when it was at par value and holding it during two years or more while it continued at par, he should not be permitted to hold it more than five years at a time when the corporation had become insolvent and the stock worthless, and then force defendants to purchase it at par. It is too late now for defendants to undertake to seek a new agreement; they did not limit the time when performance should be demanded by plaintiff but agreed to purchase it at any time. The court cannot alter the terms or conditions of the agreement as made.

The propositions held and refused by the court were in accordance with' the finding of the court and they were properly marked held or refused by it.

The finding of the trial court is fully justified by the record, and the judgment of that court is accordingly affirmed.

Affirmed.


author: Mr. Presiding Justice Philbbick

text:
    The People of the State of Illinois, Defendant in Error, v. Charles Carter, Plaintiff in Error.
    1. Indictments—for misdemeanor may charge separate offenses under various counts. An indictment which in different counts charges one with selling intoxicating liquors in anti-saloon territory and with maintaining a nuisance in such territory is not objectionable.
    2. Indictments—when election as to prosecution of counts unnecessary. It is not error to refuse to compel the people to elect as to which count of an indictment charging separate violations of the Dramshop Act they will prosecute.
    Error to County Court of Champaign county; the Hon. W. G-. Spubgin, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    F. T. Carson, for plaintiff in error.
    F. A. Coggeshall, for defendant in error; O. B. Dobbins, of counsel.
   Mr. Presiding Justice Philbbick

delivered the opinion of the court.

Plaintiff in error was indicted by the grand jury of Champaign County for selling intoxicating liquors and maintaining a nuisance in anti-saloon territory; the indictment contained nine counts, the first eight charging illegal sales of liquor, and the ninth charging him with maintaining a nuisance by keeping a building or room in which intoxicating liquors were permitted to be sold, in anti-saloon territory. The cause was certified from the Circuit Court to the County Court, where a trial was had and defendant was found guilty on the ninth count of the indictment. Judgment was rendered on this verdict and defendant fined fifty dollars and costs and committed to the county jail until fine and costs were paid, and in addition thereto, was sentenced to the county jail for twenty days; as a part of the judgment defendant was required to enter into a bond in the sum of one thousand dollars conditioned that he would not permit intoxicating liquors to be sold in said building, and in default of execution of said bond the sheriff was directed to close the premises where said sales were found to have been so illegally made. Plaintiff in error prosecutes this writ of error which was made a supersedeas, upon his filing a bond, under order of this court, conditioned- as required by law.

Plaintiff in error makes the usual assignments of error, and urges as a cause of reversal that the evidence fails to establish his guilt beyond a reasonable doubt, that the court erred in denying plaintiff in error’s motion to quash the indictment, and in denying plaintiff in error’s motion to require the State’s Attorney to elect on which count of the indictment he would prosecute; also, that the court erred in giving instructions on behalf, of the people.

Upon the contention that the trial court erred in denying the motion to quash the indictment, the only ground urged therefor is that the indictment charges two separate and distinct offenses and is, therefore, bad. Counsel cite in support of this contention Burke v. People, 23 Ill. App. 36, and Hoadley v. People, 23 Ill. App. 39; these cases hold that two separate and distinct offenses cannot be charged in the same count of an indictment, but have no application to this indictment. In an indictment charging misdemeanors separate and distinct offenses may be charged in the same indictment under various counts thereof. Gitchell v. People, 146 Ill. 175; People v. Whalen, 151 Ill. App. 18.

It is also insisted by plaintiff in error that the court erred in refusing to compel the people to elect on which count of the indictment they would prosecute, and in support of this it is argued that when an indictment charges two offenses the prosecutor should be required to elect on which count he will proceed. This has no application to an indictment where separate violations of the dram shop act are charged. Kroer v. People, 78 Ill. 299.

Upon the contention that the verdict is not supported by the evidence. We find, upon examination, that the abstract furnished by plaintiff in error is so scant, meagre and unfair that it is impossible to learn from it what the evidence is, but on examination of the additional abstract and record we find that while the evi- . dence is mostly circumstantial, it is sufficient to warrant the jury in finding defendant guilty on the ninth count of this indictment. The evidence is clear and convincing that a nuisance was maintained in this building, and that it would be almost a physical impossibility for defendant not to have known of the conditions existing.

No question is raised concerning the territory, in which the sales were alleged to have been made, being anti-saloon territory; consequently, that question is not before this court.

While plaintiff in error assigns as error the giving of each and all of the instructions on behalf of the people, the argument is confined to the first eleven instructions.

On careful examination of the objections urged, we are satisfied that no prejudicial error was committed, and finding no prejudicial error in this record, the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Philbriok

text:
    The People of the State of Illinois ex rel. J. Smith Mason, D. R. Duke and S. C. Sailor, Commissioners of Highways of the Town of Oakwood, County of Vermilion and State of Illinois, Appellees, v. The Board of Supervisors of the County of Vermilion, State of Illinois, Appellants.
    1. Demubbeb—when error in overruling waived. Error in overruling a demurrer to a petition for mandamus is waived where thereafter it is answered.
    2. Demubbeb—when refusal to carry hack not error. Refusal to carry a demurrer to an answer back to the petition and sustain it is not error where a demurrer by the defendant before answering was overruled.
    3. Mandamus—what not defense to mandamus hy highway commissioners against hoard of supervisors. Where a mandamus petition by the highway commissioners to compel the board of supervisors to appropriate one-half the cost of a bridge shows that all the necessary steps required by statute have been taken by the commissioners and no claim is made of fraud, misrepresentation or deceit in the estimated cost thereof, an answer by the board which alleges that on investigation it has found that the cost would equal a,certain per cent, of the assessed valuation of the town and it was not necessary to exceed such amount, is not a defense.
    4. Bbidges—power of hoard of supervisors on petition hy highway commissioners. On petition by the highway commissioners to compel the board of supervisors to appropriate one-half the cost of a bridge which shows that the commissioners have correctly taken all the steps required by the statute, the board has power only to investigate the truth and correctness of the facts averred and whether there was fraud and deceit in estimating the cost.
    Petition for mandamus. Appeal from the Circuit Court of Vermilion county; the Hon. Mobton W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    J. H. Lewman, for appellant.
    Swallow & Swallow, for appellee,
   Mr. Presiding Justice Philbriok

delivered the opinion of the court.

The People of the State of Elinois, on relation of Mason and others, as Commissioners of Highways of the Town of Oakwood, Vermilion County, Illinois, filed a petition in the Circuit Court to compel the Board of Supervisors to appropriate one-half of the cost of a bridge which the Highway Commissioners had determined was necessary to be erected within the Town of Oakwood. The appellants demurred to the petition, the demurrer was overruled, appellants then answered the petition, a demurrer was sustained to the answer. Appellants elected to- stand by their demurrer, and judgment was entered awarding the writ of mandamus as prayed, from which judgment appellants appeal.

Petitioners herein were Highway Commissioners of the Town of Oakwood, County of Vermilion, State of Illinois; and in accordance with the provisions of the statute they determined that it was necessary to construct a bridge over a stream in said town, and that the town would be wholly liable for the cost of the bridge and its approaches. They procured an estimate of the cost, which amounted to thirty-one hundred and seventy dollars. Prom the records they determined the assessed valuation of the taxable property in the Town of Oakwood for that year was one million, six hundred twenty thousand and ninety-one dollars, a tax of twelve cents on the hundred dollars valuation, according to the last assessment roll, would produce the sum of nineteen hundred and forty-four dollars, the levy of the road and bridge tax for the two preceding years was the full amount allowed by law, and that it was necessary to use nearly all of this in each of the said years for the ordinary repair and maintenance of the roads of that township. The Commissioners filed a petition with the Board of Supervisors, setting forth all these conditions, together with a copy of the specifications of said bridge and approaches, and the estimated, cost thereof, which petition further set forth that the Commissioners had on hand a sum sufficient to pay one-half the cost of such bridge and its approaches, which might be used for that purpose, and requested the County Board to appropriate sixteen hundred dollars for the payment of the other half, under the provisions of Sec. 19, Ch. 121, Hurd’s Revised Statutes, 1909.

The Board-of Supervisors appointed a committee to investigate this petition, this committee made an adverse report which was adopted by the Board and the aid denied, whereupon appellees filed their petition in the Circuit Court, praying for a writ of mandamus to compel the Board of Supervisors to grant the aid.

This petition showed a compliance with all of the conditions necessary to be complied with by the Highway Commissioners under Sec. 19, Ch. 121, Hurd’s Revised Statutes, 1909, and upon its face showed a complete right to the writ.

By demurrer to this petition and when the demurrer was overruled having answered the petition, appellants waived all right to assign error on the action of the court in overruling the demurrer. After demurrer was filed by the appellees to the answer of appellants they moved the court to carry the demurrer back to the petition; this motion was denied, and the demurrer sustained to the answer. Appellants having elected to abide by their demurrer, the court rendered judgment awarding the writ.

Appellants insist, as cause for reversal of the judgment, that the court erred in not carrying the demurrer back and sustaining it to the petition. In Stearns v. Cope, 109 Ill. 346, the Supreme Court held that the court should not carry a demurrer back and sustain it to a pleading to which the adverse party had previously demurred and which had been overruled. The same rule is held in City of Chicago v. People, 210 Ill. 84. If appellants desired to question the ruling of the trial court in overruling their demurrer to the petition, they should have abided by their demurrer.

Appellants further contend that they are not bound by the determination of the Highway Commissioners as to the estimated cost of this bridge and approaches, or by their determination of the assessed value of the taxable property, according to the last assessment roll, or by their determination of the amount, a tax levy of twelve cents on the hundred dollars valuation of the property, would produce, but that the Board of Supervisors have the right to ascertain the truth of these facts for themselves. In support of this contention appellants cite Board of Supervisors v. People, 121 Ill. 616. We have examined this authority but do not find anything therein to support the contention of appellants, but, on the contrary, the opinion in that case is in accord with the contention of appellees, that when a petition is filed with the Board of Supervisors showing full and complete compliance with all of the provisions of the statute on the part of the Highway Commissioners, if, upon the investigation by the Board of Supervisors which they are authorized to make, they find the bridge is to be located at a place authorized by the statute, and that, the records concerning the assessed valuation of the taxable property, show the facts necessary to be determined by the Highway Commissioners as set forth in the petition of the Highway Commissioners are true and correct, and that the estimate or approximate cost of the bridge and its approaches is not subject to a charge of fraud or deceit, then the Board of Supervisors have no discretion but must grant the petition and vote the necessary aid. Supervisors v. People, 121 Ill. 616; People v. Supervisors, 125 Ill. 12.

The petition for the writ of mandamus shows that all of the necessary steps required by law to have been taken by the Highway Commissioners were properly and correctly taken, there being no claim of fraud, misrepresentation or deceit in the estimated cost of the bridge. The matters set forth in the answer of appellants were not a denial of matters which it was the duty of the Highway Commissioners to determine and which they did determine in the proper way, bnt the answer averred that upon an investigation of these matters by a committee of the Board of Supervisors it did not appear to the Board that the estimated cost of the bridge and its approaches would be more than twelve cents on the hundred dollars valuation according to the last assessment roll, and that said Board had investigated said petition and determined that it was not necessary to build a bridge and approaches at a cost to exceed twelve cents on the hundred dollars valuation of the property of the Town according to the last assessment roll. These were matters which were not subject to determination by the Board of Supervisors, their authority to investigate was only to ascertain whether the facts averred in the petition of the Highway Commissioners were true and correct and whether the estimated cost was open to a charge of fraud or deceit; and there being no charge of fraud, the answer presented no defense to the petition, and the demurrer was properly sustained to it by the trial court. Appellees were entitled to the writ, and it was properly awarded. The judgment is affirmed.

Affirmed.