text:
    Joseph R. Pearson et al., Appellees, v. Tucson Farms Company et al., Appellants.
    Gen. No. 23,019.
    i 1. Attachment, $ 4*—right to equitable attachment. An equitable attachment cannot be sustained.
    2. Receivers, § 3

      —when receiver appointed for benefit of unsecured creditor. There must be some exceptional equity to permit a receivership for the benefit of an unsecured creditor who has obtained neither judgment nor decree.
    3. Receivers, § 2*—when not appointed because of existence of other remedy. Where a complainant’s claim is purely a legal demand and has no equitable element in it, held that a bill in equity for a receiver will not lie.
    4. Corporations, § 553*—when grounds for appointment of temporary receiver do not exist. Where a bill was filed for an accounting for commissions claimed to be due on certain sales of real estate and for a receiver of a corporation, alleging that the accounts between the parties were complicated and intricate and that it was impracticable for a jury to determine same, and that the defendant corporation was insolvent, held that no ground for appointment of a temporary receiver was shown.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 8, 1917.
    Burry, Johnstone & Peters, for appellants.
    Mathias & Sullivan, for appellees.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal by the Tucson Farms Company, et al., appellants, from an interlocutory order entered without notice on November 29, 1916, appointing a receiver “of all the property, equitable interests, things in action and effects situated in the State of Illinois, of the Tucson Farms Company,” and also providing that “the defendants deliver over to said receiver all property and effects of said defendant, Tucson Farms Company, a corporation, and pay to said receiver all rentals accruing for the use and occupation for Lots 9, 10, 11 and 12 * * * as the same become due and payable, until the further order of the court.”

The original bill of complaint was filed November 20, 1916, and made defendants (among others) the Tucson Farms Company, an Arizona corporation, the officers, directors and stockholders of that company and Isaac S. Haight, in whose name said Illinois real estate of the Tucson Company stands. The order appointing the receiver was entered the day the bill was filed and recites that it was entered without notice to the defendant and upon the sworn bill of complaint and affidavit accompanying the same.

The bill of complaint is one for an accounting for commissions claimed to have been earned by the selling of real estate of the Tucson Farms Company between the months of January, 1915 and January, 1916. It alleges that there were upwards of seventy-five distinct sales of land made through complainants’ efforts; that according to the best information they have there is now due them $96,000; that the account between them and the defendant corporation is complicated and the true balance due them cannot be ascertained except upon an inspection and investigation of the books, contracts and papers in the possession of the defendant corporation and that the account is so complicated and intricate that it would be impracticable and unsatisfactory for a jury to ascertain the true amount due.

In addition to the allegations pertaining to the complainants alleged right to have an accounting, the bill of complaint contains an elaborate series of allegations which, taken together, are in the nature of a cred- " itor’s bill. In other words, the bill of complaint seeks, first, an accounting for commissions claimed to be due complainants; and second, seeks to sequester equitable assets to satisfy a prospective decree. The principal allegations of the bill of complaint, that we assume were considered by the chancellor as a sufficient basis for the receivership, are as follows: that the defendant company is insolvent; that the lands owned by it situated in the State of Arizona are incumbered by a trust deed or mortgage to secure the payment of certain bonds of said company; that the said incumbrance of said lands is equal to or in excess of the full cash market value of said lands; that the said company is also indebted to numerous unsecured creditors; that the bonds of the company are chiefly owned and held by the stockholders thereof; that officers, agents and stockholders of said company, who are also bondholders thereof, have stated that the rights of the general and unsecured creditors of said company are academic questions and have threatened to foreclose the said trust deed against said Arizona lands for the purpose of preventing said general creditors from collecting their just demands, and are conspiring and confederating together for the purpose of defrauding the said general creditors and preventing them from collecting their said claims and have stated that the affairs of said company would be so' conducted that the complainants would never be able to collect their claims and, by stating to the complainants that said company was insolvent and that the complainants would never be able to collect any judgment obtained against said company, have endeavored to induce the complainants to accept in full satisfaction of their just demands a small fractional portion thereof; that formerly the said company carried bank accounts in several Chicago banks but that after the complainants had demanded a settlement, for the purpose of preventing complainants from obtaining a lien upon said funds by garnishment or otherwise, removed said funds from said banks and out of the jurisdiction of the courts of this county; that the stockholders, who are also bondholders of said company, have already used the power of their position to induce certain unsecured creditors to settle their claims for inadequate consideration; that by threats to foreclose said trust deed certain banks were induced to settle claims for $1,200,000 for a very small consideration.

The allegations in regard to irreparable injury are that unless a receiver is appointed, without notice, for the aforesaid real estate, the complainants will suffer irreparable injury and the right of the complainants will be unduly prejudiced and the said defendant corporation will cause said property to be conveyed or otherwise disposed of so as to prevent its general creditors in the State of Illinois from obtaining any satisfaction of their claims out of the assets of said corporation situated in the State of Illinois.

The bill was filed on behalf of the complainants and the domestic creditors in Illinois who might desire to join in the proceedings. Certain stockholders, officers and directors are made defendants and their individual liability for the amounts found due the complainants asserted on the ground that their stock was not fully paid, and that the debts exceeded the capital stock. The bill of complaint also contains the allegation that the Tucson company took in exchange for some of its Arizona lands the tract of land above mentioned and took title thereto in the name of Isaac Haight for the sole use of the Tucson company; that the property is worth approximately $75,000 and is incumbered by a trust deed to the Chicago Title & Trust Company for $51,000 and that said property is the only property of the Tucson company in the State of Illinois, and that Haight is a resident of Longwood, Texas.

The bill prays an accounting and decree for the amount that may be found due complainants and for a receivership, without notice, of the real estate and all other property of the Tucson Farms Company in the 'State of Illinois.

On the day the bill was filed the chancellor appointed a receiver “of property, equitable interest, things in action and effects situated in the State of Illinois of the Tucson Farms Company.”

It is contended by the appellant that a receiver will not be appointed by a court of equity at the request of a mere claimant who has not reduced his claim to judgment and who seeks to have property held in the custody of the court to satisfy a decree that he hopes to obtain in the future; that the appointment of the receiver without notice is reversible error.

An anticipatory receivership for the prospective benefit of an alleged unsecured general creditor, without judgment and without notice, seems to be unknown to our law. The complainants ask the court to assume that at the end of an accounting it will be proven and adjudicated that he is a creditor, and also ask the court to assume that it will be proven and adjudicated that certain frauds have been perpetrated by the defendants, and then, as a result of those assumptions, it is urged that the court ought now, in anticipation of the result and merely upon the face of the bill, take all the property of the defendants located in the State of Illinois and sequester it by means of a receiver for a future uncertain use. Complainants here seem to request something in the nature of an equitable attachment. It is the law, however, in this State that an equitable attachment cannot be sustained. In Phelps v. Foster, 18 Ill. 309, Mr. Justice Catón, said:

“I am not aware of any principle of equity jurisprudence which will justify the issuing an injunction in such a case, to compel the parties to hold the goods pending a trial at law, to see if they will not be wanted to answer an execution upon a judgment which the complainant hopes to obtain.”

In Bigelow v. Andress, 31 Ill. 323, the court announced: “And we are not aware that it has ever been seriously contended that an equitable attachment could be sustained,” and in Dewey v. Eckert, 62 Ill. 219, Mr. Justice Sheldon said: “Our law does not recognize equitable attachment. Bigelow v. Andress, 31 Ill. 323.” The foregoing cases were cited with approval by Mr. Justice Magruder in Detroit Copper & Brass Rolling Mills v. Ledwidge, 162 Ill. 305, and in expressing the reason of the court in that case he said:

“In. all cases, where resort to equity has been allowed without first obtaining judgment, ‘the claim of the complainant has had some equitable element in it, —such as a trust, or the like.’ * * * But we are unable to see that the claim set up in the ease at bar has any equitable element in it, being an indebtedness for goods sold and delivered, and, therefore, a purely legal claim.
“If any of the allegations of the present bill amount to a charge of fraud, it is sufficient to say, that a bill in equity will not lie for the purpose of procuring relief against fraud, at the suit of a creditor who has never reduced his demand to judgment. * * * Unless the creditor has obtained judgment, so as to have ‘a certain claim upon the property of the debtor, he has no concern with his frauds.’ ”

It would seem, therefore, that there must be some exceptional equity in order to permit a receivership for the benefit of an unsecured creditor who has obtained neither judgment nor decree. Dormueil v. Ward, 108 Ill. 216. In Ladd v. Judson, 174 Ill. 344, the court points out that it is necessary, in order that the complainant bring himself within the scope of the exception, to show that his demand is of such an equitable character that it can only be established in a court of chancery. The law seems to be that where the complainants’ claim is a purely legal demand and has no equitable element in it the bill will not lie. In the instant case, complainants’ claim is merely for commissions. It is true the complainants charge the defendants with a variety of fraud, but that subject only becomes involved when it is determined what, if any, commissions may be due the complainants. There is no equitable element in complainants’ claim. Instead of suing at law in assumpsit, they have gone into equity on the ground that the account is complicated. As regards commissions, there is no trust relationship of any kind between complainants and defendants; their relations are merely those' of alleged creditor and debtor, arising out of an express contract for commissions. There is outstanding no trust in favor of the commissions, nor have complainants a lien upon any property. It is contended by the complainants that, as the bill alleged the insolvency of the defendant company, its property thereupon became a trust for its creditors and that, therefore, equity would take hold and administer the trust. We do not find, however, that any such principle is applicable to this case. Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371. In the latter case, Mr. Justice Brewer says:

“While it is true language has been frequently used to the effect that the assets of the corporation are a trust fund held by a corporation for the benefit of creditors, this has not been to convey the idea that there is a direct and express trust attached to the property. * * * It is rather a trust in the administration of the assets after possession by a court of equity than a trust attaching to the property, as such, for the direct benefit of either creditor or stockholder.”

We think there was plain error in appointing a receiver of the property mentioned and therefore the order appealed from is reversed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Harry A. Biossat, Defendant in Error, v. B. S. Lippincott, Plaintiff in Error.
    Gen. No. 22,682.
    (Not to be reported in full.)
    Error to the Municipal Court, of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by Harry A. Biossat, plaintiff, against B. S. Lippincott, defendant, to recover on an account for repairing defendant’s hotel and cottages at an agreed price of four hundred dollars. From a judgment for plaintiff for three hundred and fifty dollars, defendant brings error.
    Plaintiff sued as assignee of the account from John J. Sweet, who performed the services under a contract with the defendant which the defendant claimed was based upon a certain plat prepared by another party indicating the work that was to be done, which was in the possession of defendant’s tenant of the property to be repaired and was delivered to Sweet who retained it, while Sweet claimed he was to do the work pointed out by the tenant only and not that called for by the plat.
    Frederic Burnham, for plaintiff in error.
    Harry A. Biossat, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Building and construction contracts, § 103 —when evidence is sufficient to show that plat indicating repairs is basis of contract. Evidence held sufficient to show that a certain plat indicating what repairs were to be made upon defendant’s property by the plaintiff’s assignor was the basis of the contract sued on, in an action to recover the agreed price for the making of certain repairs on said property.

2. Building and construction contracts, § 83*—what is condition precedent to recovery on contract. Where an action was brought upon a building contract for an agreed sum for work to be done and not upon a quantum meruit, held, that there could be no recovery unless substantial compliance with the contract was shown.


text:
    Frank A. Vickers, trading as F. A. Vickers & Company, Appellee, v. W. W. Vaughan Company, Appellant.
    Gen. No. 22,685.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action of attachment by Frank A. Vickers, trading as F. A.' Vickers & Co., plaintiff, against W. W. Vaughan Company, defendant, based upon an open account for commissions as agent for the procuring of purchasers for the sale of merchandise, claiming $107. From a judgment for plaintiff for $101.15, defendant appeals.
    The defendant was a nonresident. It admitted as due and tendered and paid into court $31.25. The merchandise in question was tomato catsup, for which the plaintiff procured an order, accepted by the defendant, from a customer “subject to approval of sample of 1915 pack.” The customer rejected the sample as unsatisfactory, and the order was canceled by the defendant. The plaintiff was defendant’s agent in the sale of its products on commission to be paid on orders on which the goods were shipped out, but not on those canceled or not filled.
    Abstract of the Decision.
    1. Saxes, § 141

      —when "buyer purchasing subject to approval of sample may reject sample. In a sale of goods subject to the buyer’s approval of sample, it is not necessary that the buyer have some reasonable ground for finding the sample unsatisfactory.
    2. Sax.es, § 141*—when judgment of buyer is conclusive in sale subject to approval of sample of goods. In a sale subject to approval of sample of goods of a kind where the peculiar tastes and requirements of the trade are to be considered, held that the judgment of the buyer must be conclusive.
    3. Principal, and agent, §.69*—when agent not entitled to commissions. Where an agent for the sale of his principal’s goods was by his contract to receive commissions on orders shipped and not on those canceled or not filled, held that he would not be entitled to a commission on a sale made subject to approval of sample, where the buyer rejected the sample as unsatisfactory and the principal canceled the order.
    Helmer, Moulton, Whitman & Whitman, for appellant; Paul Eeighard, of counsel.
    Culver, Andrews & King, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    James F. Bishop, Administrator, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 22,688.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 138

      —when direction of verdict for defendant in action for death is proper. In an action to recover damages for death alleged to have been due to defendant’s negligence in the operation of a street car alleged to have been owned by defendant, where such ownership was denied, and the plaintiff introduced no evidence as to the deceased’s care or the negligence of the" defendant or the defendant’s ownership of the car, held that it was proper for the court peremptorily to instruct the jury to find for the defendant.
    2. Death, § 8*-^when death certificate is inadmissible in evidence. A death certificate is not admissible in evidence for the purpose of showing some collateral fact as the cause of death, in an action to recover damages for dehth.

      Appeal from the Superior Court of Cook county;, the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by James F. Bishop, administrator of the estate of Anna Temkin, deceased, plaintiff, against the Chicago City Bailway Company, defendant, to recover damages for the death of plaintiff’s intestate caused by one of defendant’s street cars. From a judgment for defendant, plaintiff appeals.
    Mancha Bruggemeyer, for appellant.
    John E. Kehoe and Charles Le Boy Brown, for appellee; John B. Cuilliams, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Death, § 8 —when physician’s death certificate is inadmissible in evidence. A death certificate issued by a physician in another State who attended plaintiff’s intestate at the time of the latter’s death, stating that death was due to the intestate being run over by a street car three months prior to such physician’s attendance on the intestate, held inadmissible, in an action to recover damages for such death, as being mere hearsay.


text:
    Margaret C. McNeill and Benjamin F. McNeill, Appellants, v. Rivers McNeill and Ellen M. Crudup, Appellees.
    Gen. No. 22,692.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Chables M. Foell, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Suit by Margaret C. McNeill and Benjamin F. Mc-Neill, complainants, against Rivers McNeill and Ellen M. Crudup, defendants, to establish a trust as to certain lands. From a decree dismissing the bill for want of equity, complainants appeal.
    The complainants are husband and wife, and the complainant Benjamin F. McNeill is an elder brother of the defendants. The complainant Benjamin F. McNeill, upon acquiring the lands in question in 1898, placed the title thereto in his wife, and placed a loan of $8,000 thereo'nlater in the same year. Foreclosure followed and the lands were sold for $9,587.51, October 25,1899. Shortly before the expiration of the redemption period the complainant Benjamin F. McNeill solicited his brother for help in saving the property, and his brother secured an arrangement with the holders of the certificate of sale for an extension of the period for redemption of one year upon payment by the defendants of $3,400, which they paid, with an agreement between them and complainants that if the complainants should find a purchaser for the property within the year of the extension the defendants should be repaid the $3,400 and interest and expenses, otherwise the defendants would complete the redemption by a further advance of their own money for themselves and on their own account. Complainants executed as part of the arrangement a quitclaim deed to the defendants for the property. The complainants were unable to effect a sale of the property within the extended period, and thereafter in January, 1902, the defendants advanced the balance of the redemption money to the holders of the certificate of sale and completed a transfer of the property to themselves, and nine years later sold the property for $43,400. The complainant Benjamin F. McNeill continued appeals to his brother for financial help, but made no claim to the property until May, 1914, when he demanded $25,-. 000, claiming same under a trust. Answer to the bill denied such claim, invoked the Statute of Frauds, and averred laches in bringing the suit.
    Buell & Abbey, for appellants.
    Miller, Starr, Brown, Packard & Peokham, for appellees.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Trusts, § 254 —when evidence is sufficient to sustain findings in suit to establish a trust in property. Evidence held to sustain the finding that certain money paid by the defendants for an extension of one year of the redemption period on the foreclosure sale of complainants’ property was to enable the complainants to save the property by a sale thereof within the year, and that if the complainants were unable to do so that the defendants were to take the property as their own, in a suit to establish that the defendants held the property in trust for the complainants after the expiration of said year.

2. Frauds, Statute of, § 48*—when agreement relating to land is within. Where a bill in equity set up a verbal agreement as the basis of suit, by the defendants, to pay for and take over complainants’ real estate sold on foreclosure and hold same until a desirable sale thereof by complainants could be had and then account to complainants for the proceeds of such sale, held that such agreement would be within the Statute of Frauds and not enforceable.

3. Trusts, § 64*—when fiduciary relation is not created. The mere fact that parties to a business transaction are brothers does not as matter of law give to such transaction a fiduciary character.

4. Trusts, § 64*—what does not constitute constructive trust. Where the defendants had advanced money to secure an extension for a year of the period for redemption of complainants’ property from a foreclosure sale thereof, under an agreement that the complainants might redeem within said year and that if they did not the defendants might complete the redemption for their own benefit, and the defendants did, upon complainants’ failure to redeem within the year, complete thereafter the redemption of the property and receive deed therefor, held that there was no constructive trust in the defendants as to said property so redeemed by them, notwithstanding one of the complainants was a brother of the defendants.

5. Mortgages, § 31*—when deed declared to be a mortgage. Before a conveyance absolute on its face can be transformed into a mortgage, a clear and satisfactory intent to this effect must be shown.

6. Mortgages, § 16*—when deed not declared to be .a mortgage. In the absence of a debt due from the grantor in a deed to the grantee therein, such deed cannot be held to be a mortgage.

7. Mortgages, § 14*—when deed without consideration as a mortgage. Where the complainants, as the period for redemption of their property from a foreclosure sale was about to expire, executed a quitclaim deed of the property to the defendants upon the latter advancing the money for an extension of- such period for one year, under an .agreement that should the complainants not redeem the property within said year the defendants might for their own benefit, held that such deed was without consideration as a mortgage and could not be so considered.

8. Mortgages, § 32 —what is evidence that deed was not a mortgage. Where the complainants did not question the defendants’ possession and claim as owners of certain property for fourteen years or until three years after the defendants had sold it, held that such facts indicated that a deed to such property given by the complainants to the defendants prior to such possession by the defendants was absolute and not a mortgage.

9. Trusts, § 240*—when a complainant is guilty of laches in bringing suit to establish trust in property. The complainants held guilty of laches in bringing suit to establish a trust' as to certain property fourteen years after the defendants had acquired possession thereof upon a foreclosure sale and deed to them and three years after they had sold it, where the complainants had knowledge of the facts from the beginning.


text:
    Max Zamiar, Appellee, v. People’s Gas Light & Coke Company, Appellant.
    Gen. No. 22,697.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Cijnton F. Irwin, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by Max Zamiar, plaintiff, against the People’s Gas Light & Coke Company, a corporation, defendant, to recover damages for personal injuries sustained by plaintiff being struck by an automobile truck. From a judgment for plaintiff for $5,000, defendant appeals.

      Abstract of the Decision.
    1. Instructions, § 82

      —when instruction dividing witnesses into classes is erroneous. In an action to recover damages for personal injuries sustained by plaintiff being struck by an automobile truck, an instruction which divided the witnesses into two classes, those who were employees of the parties to the action and those who were not, held erroneous in a close case upon the question of ownership of the machine.
    2. Instructions, § 7*—necessity of accuracy. In an exceedingly close case upon the evidence, the necessity for accurate instructions is imperative.
    3. Instructions, § 95*—when instruction as to credibility of witnesses and weight of testimony is erroneous. In an action to recover damages for personal injuries sustained in an automobile accident, where there was no evidence that any of the witnesses except the plaintiff had any connection with the accident, an instruction as to the credibility of witnesses and the weight of their testimony which suggested for consideration by the jury the witnesses’ “connection if any with the act causing the injury complained of,” held to be erroneous.
    4. Instructions, § 88*—when instruction on determination of preponderance of evidence is erroneous. In an action to recover damages for personal injuries sustained in an automobile accident, where an instruction was given that the fact, if it were a fact, that the larger number of witnesses testified on one side did not necessarily alone determine the preponderance of the evidence, and which omitted the element of the number of witnesses in enumerating the elements to be considered in determining the preponderance of the evidence, held that the number of witnesses testifying on one side was important, in determining the preponderance of the evidence, and it was reversible error to smother this factor by the negative words used in the first part of the instruction and omit it entirely from the affirmative statement .of the elements necessary to be considered.

      Meagher, Whitney, Kicks & Sullivan, for appellant.
    Bauer & Donoghue, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

5. Automobiles and garages, § 3*—when refusal to give proper instruction is not reversible error. In an action to recover damages for personal injuries sustained in an automobile accident, refusal to give an instruction that it must be shown that the car was operated by the defendant’s servants acting within the scope of their authority, held not reversible error in view of defendant’s denial of ownership of the car.

6. Evidence, § 444*—when admission of opinions of medical witnesses is erroneous. The admission of the testimony of medical witnesses as to their opinion based upon information given them concerning the history of the case and partly on subjective and partly on objective symptoms, from their examination of the party for the purpose of qualifying as witnesses and not for treatment, held to be prejudicial error, in an action to recover damages for personal injuries.


text:
    Mary V. Vossler, Appellee, v. George DeSmet and City of Chicago, Appellants.
    Gen. No. 22,705.
    1. Municipal corporations, § 988

      —what is duty of city as to removal of defective flag pole on private premises near street. Where the owner of a vacant lot in a city placed a flag pole thereon in a cement base, where it remained for eleven years, and it then fell while the plaintiff was passing in an automobile which was struck and damaged by the falling pole, held in an action to recover against the city for such damages, that no duty rested upon the" city to remove the pole, and it was not liable to respond in damages for the injury sustained.
    2. Municipal corporations, § 938*—what is liability of city for failure to exercise police power. A municipality is not answerable in damages in tort for failure to exercise its police power.
    3. Municipal corporations, § 820*—when city may enter upon private premises and remove nuisance. A municipality may enter upon private premises and remove a nuisance therefrom or compel its removal only in the exercise of its police power.

      Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 12, 1917.
    Samuel A. Ettelson and Charles B. Francis, for appellant City of Chicago; Henry T. Chace, Jr. and Bobert H. Farrell, of counsel.
    M. F. Gallagher, E. B. Wilkinson and O. R. Barrett, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this appeal the City of Chicago alone seeks the reversal of a judgment of $112.70 rendered against it and the codefendant, George DeSmet, in an action in tort.

The evidence tends to show that on a vacant lot belonging to DeSmet at 1443 Pratt avenue, Chicago, at a point about eleven feet from the edge of the sidewalk, stood a flag pole of yellow pine, unsupported by guy wires or supports, fifty feet high, six to seven inches in diameter at the base, and four to five inches at the top; it was set in a concrete base resting in sandy soil; the pole was in plain sight of persons passing by on the street; it had been standing there over eleven years. Some of the witnesses had noticed indications of rot in the pole a few inches above the base. There is testimony that in such a pole, so placed, sap rot' in the center sets in in three to eight years. Sap rot was in this pole for a distance of twelve or fourteen inches from the bottom.

On the afternoon of April 18,1914, the plaintiff was riding in her automobile east on Pratt avenue, and as she passed No. 1443 the flag pole fell towards the, street- and struck the automobile, injuring it so that repairs were necessary. When the pole fell it broke off, leaving the base in the ground and the stub projecting about six inches.

At the close of plaintiff’s case and at the close of all the evidence, the City moved to instruct the jury to bring in a finding of not guilty, which motions were overruled.

The gravamen of plaintiff’s statement of claim is that the City was negligent in permitting a pole to be upon the lot of DeSmet which might fall upon persons passing upon the street, or to put it directly, it is said that it was the duty of the City to remove the pole, and the City- could be made to respond in damages to any person passing on the street who might be injured by its falling.

Is there such a duty upon the City? We recognize that in other forums it has been held that there is such a duty under somewhat similar circumstances as are presented in this case. However, we are constrained by the decided weight of opinion in cases decided in this State to hold that no such duty exists and that the City cannot be held to respond in damages to the plaintiff.

In Arms v. City of Knoxville, 32 Ill. App. 604, the court had under consideration the question whether it was actionable negligence for the municipality to permit the firing of a cannon in its streets which bad resulted in death to a person lawfully upon the street. In its opinion the court quoted with approval from Oliver v. City of Worcester, 102 Mass. 489, as follows:

“The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity, in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character, as the management of property or rights voluntarily held by them for their own immediate profit or advantage as a corporation, although inuring, of course, ultimately to the benefit of the public.”

The Appellate Court, after citing a considerable number of cases, holds that no private action will lie against a municipality for an accident following or resulting from its failure to discharge the duties imposed upon it for the public benefit, saying: “For failure to exercise governmental power cities are not liable. ’ ’

A case where the facts are very similar to those before us is Hanrahan v. City of Chicago, 145 Ill. App. 38, where it was sought to hold the city liable for permitting a heavy wooden awning to extend out from a private building over and above a public sidewalk on a street in Chicago. The court held that there was no liability on the City, citing in its opinion a large number of cases. The distinction stated in the Arms case, supra, is restated by Mr. Justice Smith in the Hanrahan case.

In Culver v. City of Streator, 130 Ill. 238, our Supreme Court recognized this distinction, saying, in substance, that the question was whether the act complained of was that which the corporation could do in its private or corporate character, or whether it was an act which the corporation was empowered to do in its public capacity as a governing agency and in the discharge of duties imposed for the public or general welfare. In the opinion the court says, with reference to abolishing nuisances: “That in those matters the city acts only as the agent of the State, in the discharge of duties imposed by law for the promotion and preservation of the public and general welfare, as contradistinguished from mere corporate acts, having re-' lation to the management of its corporate or private concerns, and from which it derives some special or immediate advantage or emolument in its corporate or private character. The police regulations of a city are • not made or enforced in the interest of the city in its corporate capacity, but in the interest of the public. A city, therefore, is not liable for the acts of its officers in attempting to enforce such regulations.” Other eases in this jurisdiction to the same effect are Clarke v. City of Chicago, 159 Ill. App. 20; City of Chicago v. Williams, 182 Ill. 135, and Tollefson v. City of Ottawa, 228 Ill. 134. The decisions in this State are in harmony upon the above proposition and are binding upon this court.

It is manifest that only in the exercise of its police powers could the City enter upon the premises of De-Smet and remove the pole or compel its removal by him. The exercise of this power is a governmental function, used for the benefit of the public and general welfare. For the failure to exercise this power the municipality cannot be held answerable in damages.

We hold that there is no cause of action against the City of Chicago in this case, and that it was error in the trial court to deny the motion , of the City to instruct the jury to find it not guilty. For. the reason indicated the judgment of the Municipal Court is reversed and the cause is remanded.

Reversed and remanded.


text:
    Sherardizing Company of Illinois, Appellant, v. Federal Sign System, Appellee.
    Gen. No. 22,709.
    (Not to be reported in full.)
    Abstract of the Decision.
    Set-off and recoupment, § 40

      —when evidence is sufficient to warrant finding in favor of defendant on set-off. Evidence held to warrant the finding in favor of the defendant on set-off for loss of certain metal rings delivered to the plaintiff by the defendant for a “sherardizing” or zinc covering process, in an action to recover for services in such process.
    Appeal from the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by the Sherardizing Company of Illinois, a corporation, plaintiff, against the Federal Sign System, defendant, to recover for services in “sherardizing” certain metal rings delivered by the defendant to the plaintiff for that purpose, to which the defendant filed a set-off, claiming a part of said rings were spoiled and made useless. From a judgment for defendant for $57.68, plaintiff appeals.
    Plaintiff’s statement of claim set forth one item of $35.22, which the defendant admitted to be correct, and another item of $7.26 as to goods which the defendant claimed to have been spoiled and made useless, and for which it claimed a loss of $92.80.
    Meyer Shapiro, for appellant.
    No appearance for appellee.

      See IUinois Notes Digest, Vols. XI tp XV, and Cumulative Quarterly, same topic and epetiop number,

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    J. W. Hoodwin Company, Appellee, v. A. E. Pinkerton, et al. On appeal of A. E. Pinkerton and R. R. Pinkerton, Appellants.
    Gen. No. 22,713.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by the J. W. Hoodwin Company, a corporation, plaintiff, ag’ainst A. E. Pinkerton, R. R. Pinkerton and J. W. Rankin, defendants, to recover fifty dollars paid by plaintiff to a party claimed to have been an ag’ent of the defendants. From a judgment for plaintiff, defendants A. E. Pinkerton and R. R. Pinkerton appeal.
    The action was brought against these defendants and Matt W. Pinkerton, upon whose death the action was discontinued as to him. Plaintiff claimed it was induced to pay the sum of fifty dollars to Henry E. Failer upon his representation that he was agent for Pinkerton & Company, U. S. Detective Agency, and that said agency was the same company as the Pinkerton National Detective Agency. Matt W. Pinkerton of the former agency was the husband of A. E. Pinkerton and father of R. R. Pinkerton, and used their names on the letterhead of his agency.
    George H. Mason, for appellants.
    No appearance for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

Partnership, § 52*—when evidence is insufficient to show. Evidence held insufficient to show that certain defendants, appellants, were connected in any way, as partners or otherwise, with a certain detective agency, to an agent of which plaintiff paid a certain sum of money, in an action to recover such money.


text:
    John F. Campbell Company, Appellee, v. Lawrence Ice Cream Company, Appellant.
    Gen. No. 22,718.
    (Not to be reported in full.)
    Abstract of the Decision.
    Corporations, § 516

      —when evidence is sufficient to show sale to corporation and not to officer. In an action to recover the agreed price for goods sold and delivered, evidence held to warrant the finding that the goods were ordered by telephone from the defendant’s office for the defendant and not for the president of the defendant company, who was buyer for it and gave the order.

      Appeal from the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by John F. Campbell Company, a corporation, plaintiff, against Lawrence Ice Cream Company, a corporation, defendant, to recover the agreed price for two hundred barrels of sugar sold and delivered. From a judgment for plaintiff for $1,502.77, defendant appeals.
    Pope Hoig, Fuller & Lee, for appellant.
    Newton Wyeth and Blake C. Smith, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    E. F. Heywood, Jr., for use of Greenville Stone & Gravel Company, Appellee, v. Old Colony Trust & Savings Bank, Appellant.
    Gen. No. 22,721.
    (Not to be reported in full.)
    Appeal from the Municipal Court of' Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 12, 1917.
    Rehearing denied March 26, 1917.
    Statement of the Case.
    Action by E. F. Heywood, Jr., for use of Greenville Stone & Gravel Company, a corporation, plaintiff, against Old Colony Trust & Savings Bank, a corporation, defendant, to recover the amount of a check drawn by the plaintiff upon his account in the defendant bank which the defendant refused to pay when same was presented. „ From a judgment for plaintiff for $1,632.53, defendant appeals.
    The plaintiff was secretary of the Marsh Company, commission brokers in the purchase and sale of contractors’ machinery and equipment, which negotiated for the Greenville Stone & Gravel Company a deal with the Village of Forest Park for the purchase of certain boilers for $1,500, less'the'cost of dismantling and loading the boilers, the Marsh Company’s commission on the deal being $500. Checks by the beneficial plaintiff for these amounts were given to the Marsh Company, which indorsed same and plaintiff deposited the $1,500 check to his personal account in the bank, but the bank credited same to its debt due from the Marsh Company and notified that company and plaintiff thereof. Plaintiff then drew his check for $1,498.50 upon his personal account to the order of the president of the beneficial plaintiff who presented same for payment and payment was refused. Defendant claimed a set-off for the full amount of plaintiff’s claim, to which plaintiff filed affidavit that the Marsh Company had no ownership or interest in plaintiff’s check or the funds represented thereby, that the equitable interest therein was in the beneficial plaintiff, and that plaintiff was not agent for the Marsh Company in making deposits of that company to plaintiff’s credit in the bank. Judgment was for the amount of the check with interest.
    Abstract of the Decision.
    1. Banks and banking, § 90

      —when evidence is sufficient to show that funds represented by check equitably belonged to third person. Evidence held to show that the funds represented by a certain check drawn to the order of the company of which plaintiff was secretary and deposited by the plaintiff, after indorsement by the company, to his personal account in the defendant bank equitably belonged to the beneficial plaintiff and were held by the plaintiff in trust, and that the company to whose order the check was drawn had no interest, legal or equitable, in such funds, in an action to recover the amount of a check drawn by the plaintiff upon his said account which the defendant refused to pay.
    King, Brower & H.urlbut, for appellant.
    John L. Hopkins, John W. Creekmur and D. J. DeWolfe, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Banks and banking, § 90 —when funds in account of depositor are wrongfully applied upon account of third person. Where a party holding funds in trust deposited same in a bank to his personal account, held that the legal title to such funds was in the depositor and the equitable title in the one for whom the depositor held them in trust, and that the bank wrongfully applied the funds upon the account of a third party, a corporation, of whom the depositor was an officer.

3. Interest, § 5*—when allowed. Where a bank wrongfully refused payment of a check drawn upon the drawer’s account therein, the funds of which it had illegally applied upon the account of another, held that the drawer would be entitled, upon recovery for the amount of the check, in an action for the use of the equitable owner, to interest either' upon the theory that there was an unreasonable and vexatious delay in withholding payment or on the theory that interest will be allowed on money received to the use of another.


text:
    James Croisdale, Appellee, v. D. M. Farson, Appellant.
    Gen. No. 22,724.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Rehearing denied March 26, 1917.
    Statement of the Case.
    Action by James Croisdale, plaintiff, against D. M. Farson, defendant, to recover upon indorsements by the defendant upon certain stock certificates. From a judgment for plaintiff for $3,900, defendant appeals.
    Kraft, Kraft & Erskine, for appellant.
    James R. Ward, for appellee.

      Abstract of the Decision.
    Guaranty, § 28

      —when guarantor is estopped to claim, that obligation of is discharged. Where the defendant had in writing guaranteed the payment of a dividend on certain stock certificates during the lifetime of the plaintiff, and had paid same semiannually as declared for a period of eight years, held that the parties having so put their own construction on the obligation the defendant could not be heard to contend that such obligation was discharged by the payment of one dividend only, in an action to recover for subsequent unpaid dividends.

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

   Mr. Presiding Justice McSurely

delivered the opinion of tile court.


author: Mr. Justice Dever

text:
    Martin Lavin, Administrator, Appellee, v. Wells Brothers Company, Appellant.
    Gen. No. 20,799.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the October term, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by Martin Lavin, administrator of the estate of Thomas Lavin, deceased, petitioner, against Wells Brothers Company, respondent, based upon an award in favor of the petitioner under the Workmen’s Compensation Act of 1911. From a judgment for the petitioner for $3,500, on a trial without a jury in the Superior Court of Cook county upon appeal, respondent appeals.
    The deceased was employed by the respondent as a laborer in a building being constructed by respondent as a contractor. He was working on the first floor of the building, carrying boards used to build a shanty around a motor. There were several unguarded openings in this floor. When last seen alive he was walking along the first floor carrying planks, and appeared to be looking for other planks. Ten or fifteen minutes later he was found in the basement suffering from injuries from which he died four days later. The evidence tended to show that the earnings of deceased were $17.23 per week.
    Abstract of the Decision.
    1. Workmen’s Compensation Act, § 12

      —when evidence tends to show that death arose out of course of employment. Evidence held to tend to show that the injuries and death of petitioner’s intestate arose out of his employment, in proceedings for compensation under the Workmen’s Compensation Act of 1911.
    2. Workmen’s Compensation Act, § 10*—when dependency need not he shown. Under section 4 of the Workmen’s Compensation Act of 1911 (J. & A. If 5452), where a deceased employee has contributed to any of the lineal heirs referred to in paragraph A, it is sufficient to authorize a recovery whether such person or persons were dependent upon the deceased for a support or not.
    3. Workmen’s Compensation Act, § 10*—when dependency must he shown. Under paragraph B of section 4 of the Workmen’s Compensation Act of 1911 (J. & A. If 5452), dependency for support upon the deceased must be shown to authorize a recovery in the interest of his collateral relatives.
    4. Workmen’s Compensation Act—when compensation allowed to aliens. Compensation is allowable under the Workmen’s Compensation Act of 1911 to parents of a deceased employee notwithstanding they are nonresident aliens.

      F. J. Canty and Zimmerman,' Meyers & Garrett, for appellant.
    Gorman, Pollock, Sullivan & Livingston, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

5. Workmen’s Compensation Act, § 12 —when evidence tends to show contribution to support of parents. Evidence held to tend to show the deceased had contributed to the support of his parents within five years prior to his death, in proceedings for compensation under the Workmen’s Compensation Act of 1911.

6. Workmen’s Compensation Act, § 12*—when coroner’s verdict is admissible in evidence. The verdict of a coroner’s jury held properly admitted in evidence, in proceedings for compensation under the Workmen’s Compensation Act of 1911.

7. Workmen’s Compensation Act, § 8*—when evidence is sufficient to sustain an award of compensation for death. In proceedings for compensation for the death of an employee. under the Workmen’s Compensation Act of 1911, evidence held sufficient to sustain an award of $3,500 where the employee had been earning the average weekly wages of $17.23.


text:
    Edwin B. Holmes et al., trading as Parker, Holmes & Co., Plaintiffs in Error, v. Samuel J. F. Straus, Administrator, Defendant in Error. Edwin B. Holmes et al., trading as Parker, Holmes & Co., Appellants, v. Samuel J. F. Straus, Administrator, Appellee.
    Gen. No. 22,598.
    (Not to be reported in full.)
    Gen. No. 22,693.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago in Case No. 22,598. Appeal from the Municipal Court of Chicago in Case No. 22,693; the Hon. John J. Suixivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by Edwin B. Holmes, Edward A. Perkins, Charles A. Perkins, Edward W. Perkins and Edwin P. Holmes, trading as Parker, Holmes & Company, plaintiffs, against I. W. Brill, defendant, for whom Samuel J. F. Straus, administrator of his estate, was substituted, to recover $698.03, to which the original defendant filed a claim of set-off of $3,753.33. From a judgment for defendant for the full amount of the claim of set-off, the plaintiffs bring error, and from an order denying a motion to vacate the judgment, plaintiffs appeal.
    The plaintiffs were a partnership doing business in Boston, Massachusetts, and employed the deceased as a traveling salesman. Their local attorney was Charles H. Burras, who employed Henry A. Fowler a few months after the commencement of the action as attorney to take charge of it. Plaintiffs’ Boston attorney knew of Fowler’s employment, but such employment and Fowler’s authority to represent plaintiffs were not of record. Pending the taking of certain depositions in Boston, settlement of the controversy was suggested, but not consummated, and the taking of the depositions was not completed. In February, 1915, one Leonard L. Cowan was substituted as defendant’s attorney upon notice addressed to Burras and Fowler. Prior to that time the case had been continued nineteen times, and after such substitution of defendant’s attorneys, it was continued three times more until May 6, 1915, when it was reached on the regular trial call, tried in the absence of plaintiffs’ attorney, and judgment entered, allowing the set-off to stand upon the defendant paying the usual costs required in first-class cases under the Municipal Court Act and finding for the defendant thereon. Plaintiffs learned of the judgment in August, 1915, and on September 21, 1915, petition to vacate the judgment was filed, and was denied July 13,1915, on answer and replication, the court finding:
    “First. That the court had jurisdiction to enter the judgment sought to be set aside.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 5

      —what is effect of adoption of Rule H making pleadings in first-class cases same as in fourth-class cases. The adoption by the Municipal Court of Rule 14, making the pleadings in first-class casés instituted under the Municipal Court Act on and after April 1, 1910, the same as those in fourth-class cases, held to abolish practically every difference that existed formerly in the practice and procedure in that court between the two classes of cases, notwithstanding a difference between the two in the scale of costs.
    2. Municipal Court of Chicago, § 13*—when question as to ordering of set-off in fourth-class claim is one of practice and procedure. The question whether the Municipal Court may order a set-off for an amount exceeding $1,000 filed in a fourth-class claim under the Municipal Court Act, to be tried in such action as a first-class claim, is one of practice and procedure and not one of jurisdiction since the adoption of Rule 14 of that court making the pleadings in first-class claims under that act the same as in fourth-class claims.
    “Second. That there was neither fraud, accident nor mistake in the entry of said judgment.
    “Third. That by negligence of the plaintiffs and their attorneys they failed to prosecute their case; they neglected to take the steps necessary to have it ready for trial; they failed and neglected to watch their case when it appeared in its regular place on the trial call and failed .and neglected to be present on the hearing of said case.”
    The writ of error and the appeal were consolidated for hearing.
    Bulkley, More & Tallmadge, for plaintiffs in error and appellants.
    Leonard L. Cowan, for defendant in error and appellee ; Daniel V. Gallery, of counsel.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Municipal Court of Chicago, § 13 —what is power of to hear and determine set-off in fourth-class claim. Since the adoption .by the Municipal Court of Rule 14, making the pleadings in first-class claims filed under the Municipal Court Act practically the same as those in fourth-class claims, that court has the power to hear and determine in a fourth-class claim filed under that act a set-off coming within the first class of claims.

4. Judgment, § 286*—when evidence sufficient to show negligence of attorneys in not being present at trial. In proceedings to vacate a judgment, evidence held sufficient to show that the plaintiffs’ attorneys had not exercised due care and diligence to be present at the time of trial of the action when judgment for the defendant upon his set-off was entered in their absence.

5. Trial, § 2*—what constitutes notice to attorneys of time of trial of case.' Where a case was published in the trial call of the court by its correct number but wrong title, held that there was sufficient notice to the parties’ attorneys.

6. Trial, § 36*—when presumed that all parties are present in court during time of trial. The law presumes in the absence of fraud, accident or mutual mistake that all parties interested in a cause were present in court during the course of the trial of the cause.

7. Judgment, § 286*—when refusal to vacate is proper. Where a judgment was entered on the regular trial call of the court in favor of one of the parties to the action and against the other, in the other’s absence, and without his being represented by reason of lack of due care and diligence on the part of his attorneys, and without any fraud, accident or mistake, and such other party took no action to secure a vacation of such judgment until three or four months later, held that the court properly refused to vacate such judgment.

Holdom, J., dissenting.


text:
    The People of the State of Illinois, for use of Herschel M. Byall, Administrator, Appellant, v. Anna M. Rigdon and Federal Union Surety Company, Appellees.
    Gen. No. 22,673.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fentmobe Cooper, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by the People of the State of Illinois for use of Herschel M. Byall, administrator of the estate of Amy Young, deceased, plaintiff, against Anna M. Big-don and Federal Union Surety Company, defendants, to recover on an administrator’s bond. From a judgment for defendants, on demurrer to amended declaration, the plaintiff appeals.
    The amended declaration alleged the -appointment of the defendant Anna M. Bigdon as administratrix of the estate of Charles W. Bigdon, deceased, by the Probate Court of Cook county, and the execution of her bond as administratrix in the sum of $15,000, with the defendant Federal Union Surety Company, as surety, conditioned upon her well and truly administering the goods, etc., of the deceased and distributing the same to the persons and parties entitled thereto; that the deceased left surviving as his sole heirs said Anna M. Bigdon ánd Jay A. Bigdon; that inventory was filed and approved; that said Jay A. Bigdon assigned his interest in the estate for a valuable consideration to Amy Young, plaintiff’s intestate; that notice of such assignment was given to said Anna M. Bigdon and spread of record in said court; that thereafter said Anna M. Bigdon filed her final account as such administratrix, showing that she had in her hands the distributive share of said Jay A. Rigdon, amounting to $20,000, to which but for such assignment he would be entitled; that the Probate Court thereupon entered an order directing the distribution of the estate to the parties entitled thereto and subsequently another order directing said Anna M. Rigdon as administratrix to deliver to said Jay A. Rigdon all the property and assets then in her hands belonging to him as heir of the deceased; and that said administratrix had failed and refused to deliver said distributive share to said Amy Young; that plaintiff had been appointed administratrix of the estate of said Amy Young, deceased.
    Abstract of the Decision.
    1. Courts, § 56

      —how jurisdiction of subject-matter may not be given. Jurisdiction of a subject-matter of an action cannot be given to a court by consent of the parties.
    2. Courts, § 104*—what is yoioer of Probate Court as to determination of rights and interests of assignee of heir’s distributive share. The Probate Court has, as incidental to its jurisdiction to settle and distribute the assets of a decedent, the power to determine the rights and interests of an assignee of an heir of the decedent of such heir’s distributive share in the estate.
    3. Executors and administrators, § 582*—when action on bond by assignee of heir’s distributive share does not lie. No action will lie upon an administrator’s bond by the assignee of the decedent’s heir of the latter’s distributive share in the estate to recover the amount of such share paid to the heir by order of the Probate Court administering the estate.
    Alden, Latham & Young, for appellant; T. A. Sheehan, o° counsel.
    Dave O. Dunbar, for appellees.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Old Colony Trust & Savings Bank, Appellant, v. Louise Hirtsel, Appellee.
    Gen. No. 22,681.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Dismissal, nonsuit and discontinuance, § 15

      —when plaintiff entitled to nonsuit. A plaintiff is entitled to a nonsuit, on motion timely made, in a trial before a court without a jury.
    2. Dismissal, nonsuit and discontinuance, § 15*—when denial of nonsuit is reversible error. Where a nonsuit was asked pending cross-examination of the defendant and prior to announcement by the court that “judgment will be in favor of the defendant,” upon which the motion for nonsuit was denied and judgment for the defendant entered, held that the judgment should be reversed and cause remanded with directions to enter nonsuit.
    Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by the Old Colony Trust & Savings Bank, a corporation, plaintiff, against Louise Hirtsel, defendant, to recover $531.80 upon a written guaranty of payment upon a promissory note. From denial of a motion to enter a nonsuit and judgment for defendant, •plaintiff appeals.
    Lawton & Peterson, for appellant.
    Edward H. Taylor, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Illinois Smelting & Refining Company, Appellant, v. Cyclone Fence Company, Appellee.
    Gen. No. 22,683.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabks, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by Illinois Smelting & Refining Company, a corporation, plaintiff, against Cyclone Fence Company, defendant, to recover $331.96 as balance due on the sale and delivery of 11,675 pounds of sheet zinc at 6% cents per pound. From a judgment for defendant upon a plea in recoupment and accord and satisfaction, plaintiff appeals.
    The defendant claimed in its plea that plaintiff had agreed to deliver 40,000 pounds of the zinc, that defendant had been compelled to purchase the difference between that amount and the amount delivered in open market at an advance in price of 1% cents per pound, and that defendant had paid plaintiff $470.70 in accord and satisfaction of the account, including payments made by defendant on account of certain antimonial lead shipped by plaintiff to it and returned. The plaintiff contended that there was no agreement to deliver 40,000 pounds, and that the payment of $470.70 was on account.
    Lotus S. Gibson, for appellant.
    A. F. Beaubien and Charles C. Bombaugh, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 329 —when evidence sufficient to show agreement to deliver specified quantity of material. Evidence held sufficient to sustain the finding that the plaintiff had agreed to deliver to the defendant 40,000 pounds of certain material, in an action to recover for a portion of such material delivered at the agreed price per pound.

2. Accord and satisfaction, § 4*—what constitutes. Where, after the delivery of a certain quantity of material, a dispute arose between the parties as to whether a certain larger quantity had been agreed to be delivered, and one of the parties who contended the agreement was that such larger quantity was to be delivered purchased the difference between it and the amount delivered in the open market at an advanced price and sent to the other party his check, which the latter accepted, for a certain amount, stating it was in payment for material delivered by such'other party after deducting the amount of the excess over the agreed price paid on such additional material purchased at an advanced price, and certain expenses, held that there was an accord and satisfaction between the parties by the giving and accepting of the check.

3. Sales, § 320*—when purchaser is entitled to deduct increased cost of goods purchased in marlcet from purchase price of goods delivered. Where the plaintiff had agreed to deliver to the defendant a certain quantity of material at an agreed price per pound, and after delivering a portion thereof failed to deliver the balance, and the defendant, after notice to the plaintiff that he would do so, purchased the balance in the open market at an advanced price per pound, held that the defendant was authorized to deduct from the amount of the delivered material at the agreed price per pound the excess over such price which he paid for the balance of the agreed amount.


text:
    Joseph Elia, Appellant, v. Frank Bavuso and Vincenzo Guglielmo, Appellees.
    Gen. No. 22,686.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 866

      —when question of refusal of instruction will not he reviewed. Where a hill of exceptions was made a part of the record but was not abstracted, and the abstract did not show the evidence, held that it would he impossible to determine the propriety of the refusal of an instruction based upon the showing of the evidence.
    2. Appeal and erbor, § 426*—what is effect of failing to stand hy demurrer. A party who does not stand by his demurrer but elects to plead to the merits cannot assign the overruling of the demurrer as error.
    3. Principal apto surety, § 45*—when judgment in favor of one defendant in action on hond is proper. In an action against the principal and surety on a bond, held that a judgment in favor of one defendant against the plaintiff on recoupment or set-off was proper.
    Appeal from the County Court of Cook county; the Hon. Benjamin Bell, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by Joseph Elia, plaintiff, against Frank Bavuso and Vincenzo Guglielmo, defendants, to recover upon a contractor’s building bond, to which the defendant principal on the bond filed a plea of set-off. From a judgment for defendants on such plea for one hundred and fifty dollars, plaintiff appeals.
    A. G. Dicus, for appellant.
    Vincent D. Wyman, Harry C. Kinne and Charles E. Carpenter, for appellees.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Overland Motor Company, Appellee, v. W. C. Foster, Appellant.
    Gen. No. 22,690.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 27

      —necessity that record on appeal contain rules. No advantage may be taken on appeal of an error of the Municipal Court based upon a rule of that court where neither the abstract of the record nor the bill of exceptions made a part of the record contains proof of such rule, as judicial notice will not be taken of the Municipal Court rules.
    2. Municipal Court of Chicago, § 29*—when statement of claim is sufficient on appeal. The statement of claim filed, held sufficient as showing a cause of action when questioned for the first time on appeal.
    Appeal from the Municipal Court of Chicago; the Hon. John K. Pbindiville, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed March 12, 1917.
    Rehearing denied March 26, 1917.
    Statement of the Case.
    Action by Overland Motor Company, a corporation, plaintiff, against W. C. Foster, defendant, to recover $14.61 for goods, wares and merchandise sold and delivered, and for labor done and performed for defendant at his request. From a judgment for plaintiff for the amount claimed, defendant appeals.
    Fulton, Carey & Deutschman, for appellant.
    Underwood & Smyser, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Delmar F. Reynolds and Alice M. Reynolds, by Alice H. Cobb, Appellees, v. North American Union, Appellant.
    Gen. No. 22,698.
    1. Death, § 2

      —existence in State of common-law rule as to presumption of. The common-law rule of presumption of death from seven years’ absence prevails in Illinois.
    2. Insurance, § 747*—when subsequent by-law of fraternal beneficial association -is binding upon insured. A fraternal beneficial association may legally adopt a by-law subsequent to the issuance of an insurance certificate which shall be applicable to and binding upon the insured under such certificate where the certificate expressly provides that the insured shall comply with all laws, rules and regulations of the association enacted after the issuance of such certificate.
    3. Insurance, § 747*—when subsequently enacted by-law requiring proof of death other than by presumption arising from absence is invalid. Where a fraternal insurance certificate provided that the insured would comply with the laws, rules and regulations of the association, including those which might be enacted thereafter, and the insured complied with all such laws, rules and regulations up to a certain date, when he disappeared, and his beneficiaries continued from and after that date to comply therewith and paid all dues and assessments levied upon the certificate, and the association received and accepted such payments with full knowledge of the disappearance of the insured until more than seven years since his disappearance had elapsed, and the circumstances of the case were such that under the common-law rule as to the presumption of death from seven years’ absence the death of such insured would be presumed and legal proof thereof could be made under such certificate, held that a by-law enacted three months only prior to the expiration of said seven years, providing in effect that there should be no recovery under any certificate because of death occurring prior to the expiration of the term of the insured’s life expectancy except upon proof of death other than by presumption from absence or disappearance, was unreasonable and invalid and of no effect as to such certificate, irrespective of the question whether such by-law was against public policy or in contravention of law or was illegal per se.

      4. Insurance, § 121

      —when common-law rule as to presumption of death from absence is part of contract. The common-law rule as to presumption of death from seven years’ absence, held, though a rule of evidence, to be a material part of a contract of life insurance.
    5. Insurance, § 747*—necessity that subsequently enacted laws modifying contract be reasonable. Where a fraternal • insurance certificate provided that the insured would comply with all laws, rules and regulations of the association then or thereafter enacted, held that while the association would have the right and power to modify the contract of insurance by subsequently enacted laws, rules and regulations it must act in so doing reasonably and with some regard for the rights of the insured and of the beneficiaries and in good faith without doing substantial injustice to him or them.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 12, 1917.
    C. V. Donovan and Edward S. Cummings, for appellant.
    F. D. Hedges and J. C. De Wolfe, for appellees.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

Plaintiffs, minors, by their next friend, brought suit in the Circuit Court, charging in their declaration that the defendant, North American Union, a fraternal benefit' association, was legally liable to them under a certificate or policy of insurance by the terms of which defendant insured the life of their father, Frederick Gr. Reynolds, in the sum of $2,000, and also a sum equal to ten per cent, of the amount which the said Reynolds had contributed to defendant’s reserve fund. The defendant in the certificate issued bound itself to pay said sums to plaintiffs on the death of the insured. The case was tried by the court without a jury, and all of the facts upon which the finding and judgment of the court were based were stipulated of record by counsel for the respective parties. The court found the issues for the plaintiffs and entered judgment in their favor for the sum of $2,294. Defendant brings the case to this court and requests a reversal of this judgment.

It is stated in said stipulation, among other things, that the insured became a member of the defendant association on December 23, 1897; that a benefit certificate was issued by the defendant to him in the principal sum of $2,000, payable to the beneficiaries upon satisfactory proofs being furnished to the defendant association of his death. It was also provided in said certificate that it was issued subject to full compliance by the said Reynolds and his beneficiaries with the constitution, laws and rules and regulations of the defendant association in force at the time said Reynolds became a member thereof and as might thereafter be adopted or amended.

The plaintiffs, Delmar F. and Alice M. Reynolds, were aged respectively eighteen years and fourteen years at the time of the commencement of this suit.. Frederick G-. Reynolds, the insured, in 1906 was by occupation a clerk employed by the Adams Express Company in Chicago. On or about the first day of August, 1906, he left his home in Chicago, “intending to go on a vacation trip through the eastern States but not knowing his exact destination; that on or about August 10th, 1906, the two children, Delmar F. and Alice M. Reynolds, received postal cards from him, which were postmarked ‘Cincinnati, August 9, 1906, 2 a. m.,’ which were the last communications received from him by his family, neighbors or relatives; that said postcards did not specify hotel or mail address; that said Reynolds was fond of his family, and his home relations were pleasant; that he had been in ill health for some time, and was tired and worn out from his work, and was subject to frequent attacks of severe headaches; that he was a man of good habits and was thirty-three years of age at the time of his disappearance, and on the morning.of his leaving home he was in good spirits and expected to return home in two or three weeks; that upon said Reynolds’ failure to return home from his trip, Mrs. Alice H. Cobb, his mother-in-law, made inquiries among his business associates, and his brothers and sisters, who resided in Aurora, Illinois, and of his father, who resided at Beloit, Wisconsin. Mrs. Cobb kept up correspondence with his relatives and made inquiries about him, and informed them that he had disappeared, but was unable to get any clew of him or his whereabouts; that publication was made in the Chicago newspapers, for information as to the whereabouts of the said F. Gr. Reynolds, at frequent intervals during the seven years next following his disappearance; that the fact of his disappearance was reported to the police department of the City of Chicago, shortly after the said 10th day of August, 1906, and inquiries were also made as to the whereabouts of said Reynolds, of the police department of Cincinnati, Ohio, and the police departments of other cities throughout the United States and Canada, but without any results. His family have never heard from him since receiving the postal cards from Cincinnati, Ohio, postmarked August 9, 1906, and believe him to be dead. Diligent search and inquiry have been made in the vicinity of said Reynolds’ home, and at such places as he would be liable to go, and from such person as would be liable to meet and know him, and nothing has been heard from, or of him, and he has not returned to his home or family at any time since the date of his disappearance in August, A. D. 1906, as aforesaid.”

It was further stipulated that the defendant association in the month of April, 1911, published in its official journal a photograph of the said Reynolds, and in a notice in connection therewith requested readers of the publication to forward to the office of the defendant any information they might possess with reference to the “present location of the missing brother.”

The fact of the insured’s disappearance was reported by Mrs. Alice H. Cobb, the mother-in-law of the insured and grandmother of the plaintiffs, to the defendant after his disappearance, and she paid the dues and assessments on the benefit certificate on his behalf and on behalf of his beneficiaries to the defendant, and the defendant accepted said dues and assessments with full knowledge of the fact of the insured’s disappearance. These dues and assessments were paid by Mrs. Cobb up to and including the month of August, 1913, a period of seven years after said Reynolds disappeared. On September 1, 1913, Mrs. Cobb on behalf of the beneficiaries made demand upon the defendant to pay the plaintiffs the sum due under the certificate, but defendant refused to comply with said demand and still refuses to pay said amount.

It was also stipulated that in the month of May, 1913, section 20 of law 3 of the by-laws of the defendant association was duly adopted by the defendant and was in full force and effect from and after its passage; that said by-law adopted in May, 1913, was not in force, nor was any similar law or provision in force, at the time Reynolds became a member of the defendant association or at any time prior to May, 1913. It was further stipulated that “the only question to be determined in this case is whether the insured, Frederick 0. Reynolds, and his beneficiaries, under the said benefit certificate, are bound by said law.” The by-law adopted by the defendant association in May, 1913, is as follows:

“The absence or disappearance of a member from Ms last known place of residence, and thereafter being unheard of, shall not be held or construed to be evidence of the death of such member, nor create or establish a right to payment or recovery of any benefits under Ms certificate or policy or his membership in the Order in the absence of competent proof of his death, other than such as might arise from any presumption by reason of such absence or disappearance, until the expiration of the full term of Ms fife expectancy at his age of entry into the Order as determined from and by any recognized standard table of mortality, and then only in case all combined monthly premiums, special assessments, dues and other sums reqMred to be paid under the laws of the Order have been promptly paid for or on behalf of such member during the full period of Ms fife expectancy. The provisions of tMs law shall operate, and be held and construed as a waiver on the part of such member, and his beneficiaries, named and legal, of any and all statutes or laws of any State or country to the contrary; provided, however, that in case such membér is the holder of a term certificate or policy, the Order shall not be liable for any benefits under the same, or the membership of such member in the Order, unless proof of the actual death of such member, in the manner and form required by the laws of the Order in other cases, is made, unassisted by and independent of any presumption arising by reason of such absence or disappearance, if the expiration of the term provided in said certificate or policy shall occur before the expiration of the term of his fife expectancy.”

Counsel for the respective parties have in the briefs filed herein discussed several questions as to which there does not seem to be much doubt concerning the law. It may be conceded that the common-law rule of presumption of death from seven years’ absence prevails in Illinois and is applicable in certain cases where recoveries are sought against fraternal benefit associations under certificates of insurance issued by such associations.

The benefit certificate in question was issued by the defendant association upon the express condition that the insured would comply with the laws, rules and regulations of the defendant, including such laws and rules as might be enacted after the issuance of the certificate. The by-law of May, 1913, adopted by the defendant was one which it had a legal right to adopt. In Apitz v. Knights of Honor, 274 Ill. 196, the court said:

“We have held that the beneficiary has no vested interest in the certificate, and where the contract between the member and the society reserves the right to the society to amend or change the by-laws, and the member agrees to be bound thereby and accepts the certificate under those conditions, subsequently enacted by-laws are binding upon him. (Royal Arcanum v. McKnight, 238 Ill. 349, and cases there cited.) ‘A party cannot claim the right to have a contract remain unaltered when the contract itself provides that it may be changed. ’ ”

It is too late at this time to question the validity of the provision of the certificate in question which provided that Reynolds, the insured, was to be bound by any by-laws enacted by the defendant society subsequent to the admission of the insured as a member. That question has been definitely disposed of by the Supreme Court of this State.

It is urged, however, that the by-law in question must be held to be inoperative as against the plaintiffs in this case for two reasons: First, that it is in contravention of the common-law rule that where an individual disappears and has not been heard from for more than seven years the presumption arises that he is dead; and second, that under the facts and circumstances of the instant case the by-law should be held to' be inoperative as against the plaintiffs on the ground of unreasonableness.

In support of their contention that the by-law in question precludes a recovery in favor of plaintiffs, counsel for defendant rely upon the case of Apitz v. Knights of Honor, supra; Kelly v. Catholic Mut. Ben. Ass’n, 46 N. Y. App. Div. 79, and McGovern v. Brotherhood of Firemen & Engineers, 21 Ohio Cir. Ct. 243.

. In the Apits case, supra, the by-law under consideration provided that in case the disappearance of a member continued for one year such member should stand suspended from the society as in casé of suspension for the nonpayment of dues and assessments.

In the Kelly case, supra, the by-law of the society provided that: “No time of absence or disappearance on the part of the member without proof of actual death should entitle his beneficiary to recover upon his membership certificate.”

In both of these cases it was held that the by-laws referred to were not unreasonable and that they were not void as against public policy. “The parties, as we have seen, had a legal right to enter into an agreement of this character, and it cannot be said to be illegal, unreasonable, inconsistent with the objects and purposes of the corporation, or repugnant to the law, to public policy or to good morals. ’ ’ Kelly case, supra. The by-law under consideration in the Apits case, supra, was quite different in its terms and effect upon the rights of a member or his beneficiaries from the one under consideration here; the effect of the by-law in that case was to automatically suspend the membership of the insured after a disappearance for a period of one year. The McGovern case, supra, is more directly in point, and seems to be in support of the contention made by the defendant.

In National Union v. Sawyer, 42 App. Cas. (D. C.) 475, the insured disappeared on June 5, 1905, and on October 1, 1906, a by-law was adopted by the society substantially the same as the one under consideration here. In deciding the case the court said: “A general authority to make by-laws or amendments does not authorize the passage of one that contravenes the law of the land. The statute declares the general policy of the law and the by-law or regulation contravening the statute is necessarily without effect.”

In Samberg v. Knights of the Modern Maccabees, 158 Mich. 568, the insured disappeared on October 16, 1900, and in June, 1904, the defendant adopted a bylaw which provided in substance that no benefits should be paid under the certificate of membership until the death of the insured had been satisfactorily proven, “aside from any presumption that might arise by reason of his absence.” The court said:

“We have already quoted the statute in relation to the presumption arising from a seven years’ absence without intelligence concerning the person. It was undoubtedly enacted to meet a necessity growing out of the experiences of men. This rule has also been recognized in the absence of a statute. * * * It cannot be said that the insured in subscribing to his application contemplated the adoption of a by-law that would have the effect to render the provisions of a wholesale statute nugatory, and to have the further effect of making it practically impossible to make proofs of death in cases within the occasional experience of men.”

Our attention has been called to cases involving the effect of the passage of by-laws by associations such as the defendant in this case, wherein it was provided by such by-laws that members were required, under penalty of suspension, to give notice to the association of change of residence, and that failure to report such change of residence or failure to attend upon meetings for certain periods of time would result in a suspension of the membership of the insured. We do not think that such cases aid greatly in determining the question to be disposed of here. In those cases no great hardship or injustice can be said to have been imposed upon a member or bis beneficiary by the adoption of such by-laws after the issuance of a certificate of membership. In the case at bar, the necessary effect of the by-law in question, under the circumstances of the case, was to relieve the defendant of practically all liability under the certificate which it had issued to the insured, and under which he or his beneficiaries had paid dues and assessments for a period of about sixteen years. The by-law referred to here was adopted about three months before the expiration of the period of time which, in the absence of the by-law and under the law of the State of Illinois, would have permitted the plaintiffs to have made legal proof of the death of the insured. The evidence discloses that the defendant was promptly notified of the disappearance of the insured in August, 1906. It made efforts to discover his whereabouts, and it continued to receive dues and assessments from his beneficiaries up to May, 1913, when the by-law in question was adopted, and thereafter until August, 1913, when the plaintiffs would, in the absence of the by-law, be entitled to recover under the certificate of membership.

There is not much harmony in the decisions with reference to the question of whether a by-law such as this can be said to be void as being against public policy or as being in contravention of public law, but whatever may be held as to this question, we are inclined to the view that under the facts and circumstances of this case the by-law in question must be held to be unreasonable and inoperative against the plaintiffs. We do not believe that the insured when he agreed to abide by any future enacted by-law of the defendant intended to give defendant the right, without his consent or the consent of his beneficiaries, to so materially modify the contract of insurance as to practically deprive the beneficiaries of all right to any benefit from the dues and assessments which had been paid for sixteen years to the defendant. Even if it he assumed that the by-law was not per se illegal, or that it is not against public policy or in contravention of the law of the State, we are still of the opinion that it must be held in the circumstances of this case to be unreasonable.

The common-law rule relating to presumption of death after an absence of seven years has been held by the Supreme Court of this State to be a rule of evidence. This common-law rule, however, was a material part of the contract of insurance entered into between the insured and the defendant. The right and power of the defendant association to modify this contract may be conceded, but in the exercise of this right or power the law insists that the defendant must act reasonably and with some regard for the rights of the insured and his beneficiaries. It may well be held that under other circumstances a by-law such as the one in question would not be invalid. Here, however, it makes such a change in the essential rights of the parties as that its effect was not merely to modify the contract, but practically to relieve the defendant from any liability under it. Contracts of insurance are generally entered into by persons who desire to protect those depending upon them in the event of death before the end of the period of life expectancy as fixed by the standard tables of mortality.' The modification of the contract of insurance entered into in this particular case would necessarily have compelled the beneficiaries to continue the payment of dues for a period of twenty-four years following the year 1913. It is conceded that the insured was in ill health at the time he disappeared. If his death in fact occurred within a short time after such disappearance, then his beneficiaries or some one for them have been paying dues and assessments under the policy for a number of years after his death had actually taken place. The adoption of the by-law in question at the end of this seven-year period, and extending such payments for another period of twenty-four years, under the factso of this case is so opposed to one’s sense of justice as, we believe, to authorize the holding that the by-law was unreasonable as against the claim of plaintiffs in this case.

In Convery v. Brotherhood of Railroad Trainmen, 190 Ill. App. 479, it was insisted by the fraternal benefit organization that “as section 70 leaves it wholly within the discretion of the beneficiary board whether they will pay any disability claims or not, and provides that said section may be pleaded in any suit brought on said certificate, and that no appeal shall be allowed from the action of said board and that said board having rejected the claim of appellee, he has no remedy. ’ ’ In deciding the case the court said:

“These provisions are clearly contrary to public policy. In the case of Brotherhood of Railway Trainmen v. Greaser, 108 Ill. App. 598, the court in passing upon this section states in its "opinion: ‘The trend of judicial authority is so decidedly against the propriety of allowing one of the parties or its special representatives, to be judge or arbitrator in its own case, that even a strained interpretation will be resorted to, if necessary to avoid such a result. If a different construction is fairly admissible it should be adopted. ’ ”

While the question under consideration in the instant case is not the same as that in the case last referred to, the reasoning of that case may well be adopted in this. Modificatidns of contracts of insurance should be made in good faith. We think there is ample evidence in this record for the belief that the by-law in question was not adopted in good faith; at all events, its effect was to do a substantial injustice to the plaintiffs.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    August Behrns, Administrator, Appellee, v. Adolph W. Roth, Appellant.
    Gen. No. 22,711.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 185

      —when evidence sufficient to show that death of swimmer in natatorium is not due to drowning. In an action to recover damages for death alleged to have been from drowning while the deceased was swimming in a natatorium, evidence held' sufficient to show that death was not due to drowning but to organic disease, notwithstanding the verdict of the coroner’s jury recited that the death was caused by drowning, the uncontradicted medical evidence being to the effect that a post-mortem examination showed no water was found in the lungs, chest or bronchial tubes or stomach and that there was a large thymus gland and greatly enlarged spleen, mesentery glands, and intestinal and lymphatic structures, and that death while swimming is common to persons in such physical condition, and that the death in this case was due to the organic disease found.

      Appeal from, the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed March 12, 1917.
    Statement of the Case.
    Action by August Behrns, administrator of the estate of Edward Behrns, deceased, plaintiff, against Adolph W. Both, defendant, to recover damages for the death of the intestate while swimming in the defendant’s natatorium. From a judgment for plaintiff for five hundred dollars, defendant appeals.
    Zimmerman & Garrett, for appellant.
    Theron Durham, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Negligence, § 28 —when oumer is not guilty of negligence in maintenance and operation of natatorium. In an action to recover damages for death while deceased was swimming in defendant’s natatorium, evidence held to show there was no negligence on the part of the defendant in the equipment or operation of his natatorium, notwithstanding there was much noise and shouting going on just before and at the time deceased met his death from thirty-five boys swimming in the place; signs as to the depths of the water and warning signs as to safety being placed in the tank, and two life guards being stationed there, and efforts being promptly made by them to recover the deceased from the water and to resuscitate him with the aid of a pulmotor.

3. Death, § 67*—when verdict for damages for is inadequate. A verdict of five hundred dollars, in an action to recover damages for death, held to he so wholly inadequate as compensation as to indicate that the jury were not guided by any principle of law or justice applicable to the facts, but by sympathy.