author: Mr. Justice Harris Mr. Justice Higbee

text:
    James Meehan et al., Appellants, v. George Parsons et al., Appellees.
    1. Equity, § 313

      —when sworn answer evidence. Statements in a sworn answer to a chancery bill which waive answer on oath are to he taken as true where no replication is filed.
    2. Municipal cobpobations, § 1149

      —when expenses of mayor's lobbying trip payable from contingent fund. Expenses of a successful voluntary trip of the mayor of a city to lobby before congress for an appropriation for the repair of city levees, which had been damaged by a flood, do not fall within the class of contingent expenses which may he paid from the contingent fund.
    3. Municipal cobpobations, § 1149

      —when expenses of mayor's lobbying trip payable from particular fund. The expenses of a successful voluntary trip of the mayor of a city to lobby before congress for an appropriation for the repair of city levees, which had been damaged by a flood, are not payable from a fund raised by the city to build, raise or repair levees.
    4. Municipal corporations, § 1149

      —when expenses of mayor’s lobbying trip payable from particular fund. Expenses incurred by the mayor of a city on a successful voluntary trip to lobby before Congress for an appropriation for the repair of city levees, which had been damaged by a flood, are not payable under section 3, art. VII, ch. 24, Rev. St. (J. & A. 1362), relating to payments for improvements necessitated by any casualty or accident arising after the making of an annual appropriation bill.
    5. Municipal corporations, § 164

      —validity of contract to pay expenses of mayor’s lobbying trip. The agreement of a city to reimburse its mayor for expenses incurred by him on a successful voluntary trip to lobby before congress for an appropriation for the repair of city levees damaged by a flood, is against public policy and void.
    Higbee, J., dissenting.
    Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion originally filed November 10, 1913.
    Rehearing granted and opinion filed May 1, 1915.
    C. S. Miller, for .appellants.
    Angus Leek and Gilbert & Gilbert, for appellees.

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

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

   Mr. Justice Harris

delivered the opinion of the court.

Appellants as citizens and taxpayers of the city of Cairo presented and filed in the Circuit Court of Alexander county their bill in chancery for temporary and permanent injunction. The material allegations of the bill are as follows :

That about the 1st day of June, 1912, one George Parsons of said city of Cairo, county of Alexander and State of Illinois, went to attend meetings of Congress in the city of Washington, there to lobby for and obtain if possible an appropriation of government money for the levees and embankments in and about the city of Cairo and in and about the drainage district adjacent thereto in said county and State. That the said George Parsons was at the time and still is the duly elected and qualified mayor of said city and was at that time and still is in receipt of the duly authorized salary of $1,000 per year for his services as such mayor. That said George Parsons went to the said city of Washington, D. C., and did work there, on behalf of an appropriation for the levees in Cairo and said drainage district adjacent, and it is alleged that such work was done on behalf of the Cairo Drainage District, a municipal corporation lying outside of the city of Cairo, and on behalf of railroads, other corporations and himself as well as on behalf of said city of Cairo. That said George Parsons has, since his return from said city of Washington, filed with the city council of said city of Cairo his bill for services rendered and expenses incurred in connection with said lobbying trip to said city of Washington, D. C., amounting to the sum of $1,500, thereby alleging that said city of Cairo is indebted to him, the said George Parsons, in addition to his annual salary of $1,000. That said bill for services and expenses so filed was by said city council duly referred to the finance committee of said city council and was by said finance committee duly recommended for allowance. That said bill so recommended is about to and will be presented to said city council at its next regular meeting to be held August 13, 1912, at eight o’clock p. m., in said city of Cairo. That the city council at said meeting will duly allow and order paid to said George Parsons the amount of said bill so filed as aforesaid and that Eobert A. Hatcher, the city clerk of said city of Cairo, will immediately upon the allowance of said bill, issue an order for the amount thereof to said George Parsons, and that James Quinn, the city treasurer • of said city of Cairo, threatens and appellants believe will pay to said George Parsons the amount of his said illegal charge against said city, unless the said Robert A. Hatcher and said James Quinn, who are made parties defendant to said bill, are restrained therefrom. That the purported services and expenditures rendered by said George Parsons were not rendered or made for corporate purposes for and on behalf of the said city of Cairo and were not authorized by law, and is not a lawful claim against said city. That said city council of the city of Cairo has not by any appropriation ordinance duly appropriated any money or moneys or set aside any fund for such purpose or purposes, as aforesaid, and that such payment for money aforesaid is illegal and unauthorized by the statute of the State of Illinois.

The prayer of said bill is the usual form, calling for an answer of defendants and waiving answer under oath; that said Robert A. Hatcher, city clerk, James Quinn, treasurer, and George Parsons be enjoined from issuing warrant, paying same out of treasury of city of Cairo the said $1,500, or any other amount for the purposes aforesaid to the said George Parsons. Prayer for writ of injunction and summons. Affidavits in usual form giving court jurisdiction. Order issuing temporary injunction on the 13th day of August, 1912, returnable to the 1st day of October term, 1912, of said Circuit Court.

The appellees to this bill file their joint and several answer to said bill, under oath. The material averments of which are:

After the formal averments they admit complainants are residents and taxpayers of the city of Cairo. They further admit that the said George Parsons went to attend the meetings of congress in the city of Washington and to lobby and obtain, if possible, an appropriation of government money for the levees and embankments in and about Cairo and in and about the drainage district adjacent thereto in the county of Alexander. That said George Parsons was at that time and still is the duly qualified mayor of the city of Cairo, and duly authorized and drawing the salary of $1,000 per year for his services as mayor. They further admit that George Parsons on his trips to Washington did work on behalf of an appropriation for the levees in Cairo and said drainage district adjacent. They deny that he, said Parsons, did the work for himself or any drainage district corporation or person, except the city of Cairo. They aver that the work was done at the instance of said city and for its special benefit and not otherwise. They deny that the Cairo Drainage District lies outside of Cairo, but one of the main levees, known as “Cross Levee,” protecting from inundation that portion of the city of Cairo which lies south of said cross levee, is situate within and also constitutes one of the levees of said drainage district as well as one of the levees of said city. They aver that the work to be complete must embrace the levees of said drainage district as well as levees of the city; that it took all to protect the city, and the money expended on either or both were for the benefit of the city of Cairo. They deny that any bill was filed by said George Parsons for services presented or referred to finance committee or ordered paid or that any was about to be allowed or paid for any services by him rendered to or for said city in the matter of securing appropriation, and deny that he makes any claim therefor. They deny that the city council has not by appropriation ordinance set aside a fund out of which this bill may be paid for the purpose aforesaid. They deny the claim was illegal and unauthorized by statute. They deny that the services rendered and expenditures were not made for corporate purposes and is not a lawful claim against said city in so far as any of the allegations of said bill have application to the matter of actual expenses incurred and paid by said George Parsons and the refunding of same to him by said city.

They aver by reason of a flood in the Ohio and Mississippi rivers, which occurred after the passage of the annual appropriation ordinance, an emergency arose: First, that the city, without assistance, was unable to furnish the means to strengthen its levees, and second, that the city would suffer materially if it was not done before the next spring rise; that as a result of the trips and efforts of George Parsons congress appropriated $250,000 for said emergency work on condition that the city of Cairo would expend a like amount.

They aver that the expenses of the said Parsons were reasonable, necessary and suitable expenses, and that he did pay out in excess of the sum of $1,500 as expenses on said trips; that on August 6, 1912, on his return he, the said Parsons, called the attention of the city council to the matter of his said expenses, the matter was referred to finance committee and after-wards on the 13th day of August, 1912, reported back and the sum' of $1,500 to reimburse him for his expenses aforesaid was allowed.

They further aver that the Cities and Villages Act chapter 24, art. V, par. 62, secs. 1, 3, 32, Hurd’s Eev. St. 1913 (J. & A. 1334, §§ 1, 2, 32) grants to city council power: First. To control finances of city. Second. To appropriate money for corporate purposes provided for payment of debts and expenses. Third. To erect and keep in repair levees.

They then aver the passage of an ordinance for annual appropriations passed January 25, 1912, and make the same Exhibit “A” to the answer. It is averred this, ordinance contained an item to pay contingent expenses, $4,500, and that on the 13th day of August, 1912, this fund had a balance of $1,877.28, out of which said sum of $1,500 could have been legally paid to said George Parsons for the purpose of reimbursing him for the expenses so incurred in connection with his trips to Washington, D. C. They further-answer by setting out an act of the legislature to enable cities, villages and towns threatened with overflow to levy taxes by vote of electors and issue anticipation warrants, etc. Approved June 11,1897. And aver that under the act and a vote of the people, ordinance number 86 was passed levying a tax, etc., ordinance number 86 attached to answer and marked Exhibit “B,” under and by which said statute and ordinances a fund had accumulated, having a balance August 13, 1912, of $4,500, out of which the sum of $1,500 could have legally been paid to George Parsons for the expense aforesaid.

It is further averred that under the Cities and Villages Act, ch. 24, art. VII, sec. 3 (J. & A. jf 1362), and the proviso of said section, that the city council had the power by a two-thirds vote to authorize any improvement the necessity of which is caused by casualty or accident happening after the annual appropriation is passed; that by a like vote the city council may authorize the mayor or finance committee to borrow money to make the necessary improvement. They aver the flood in the spring of 1912 brought about this condition and brought such expenditures within the provision of said section 3. The joint answer concludes with the formal averments, followed by the signatures of appellees and the affidavit of each to the answer.

The answer and exhibits are followed by the affidavits of Ernest Nordman and Robert A. Hatcher, city comptroller and city clerk, respectively, the first as to the financial condition of the treasury and the second that the Exhibits are true and correct copies of ordinances of said city. This was followed by Exhibit “O”: A report of finance committee recommending payment of $1,500 to George Parsons. Then follows publication of official proceedings of city council of August 13, 1912, marked Exhibit “D”. Upon the foregoing the appellees moved to dissolve the injunction. A hearing upon the motion resulted in a decree finding the allegations of the answer true and ordering dissolution of injunction. After suggestion and allowance of damages the court found that the bill filed was exclusively for injunction, and the injunction, having been dissolved, the bill was dismissed at appellant’s costs, exceptions and this appeal. . *

The usual errors to protect appellants in their contention under this decree are assigned, all of them are argued, and will be determined by the main question in the case: Was the city council vested with the authority to appropriate $1,500 of the corporate funds of said city to the payment of George Parsons’ expenses on his trips to Washington, D. C., for the purpose of lobbying for an appropriation by congress for the improvement of the levees in and around the city of Cairo.

In answering this proposition from the pleadings, evidence and affidavits introduced on the hearing, it will not be necessary to make a further statement of fact than to state the facts that are not in dispute. The statements in an answer under oath, -where the oath has been waived and where no replication is filed, are to be taken as true. Farrell v. McKee, 36 Ill. 225. The competency of some of the evidence becomes immaterial because appellants and appellees by their statements in and out of pleading admit:

First. That appellants are competent parties to maintain bill.

Second. That appellees are officials of the city of Cairo as by the bill designated.

Third. That George Parsons as the mayor was drawing a salary of $1,000 per year.

Fourth. That in the summer of 1912 the said George Parsons made three trips to Washington, D. C., to persuade congress to make an appropriation for the improvement of the levees in and about the city of Cairo.

Fifth. That he, said Parsons, spent upon said trips of his own funds more than the sum of $1,500.

That on the 6th -day of August, 1912, he presented to the city council his bill for such expenses, which was by the council referred to the finance committee, and that the finance committee recommended payment of the same; that the council on the recommendation of said committee allowed said claim and ordered the same paid.

The concluding statement in argument of appellees is that only one point is discussed by appellants on which authorities are cited, and this point is not covered by any allegations in complainant’s bill. This statement of appellees is not supported by an examination of the bill. The bill alleges that the bill for expenses was not within the corporate powers of the city to pay, was in violation of the statute, and was not included in the annual appropriation ordinance. This may be considered as pleading conclusions, and pleading the law. The decree was based upon such statements in bill and answer, and the admitted facts raise only a question of law.

Appellees in their answer have called the attention of the court to the statutes of the State of Illinois, granting powers to the city: “To control the finances of the City;” and while they insist on a liberal construction of this statute they do recognize that this power has certain limitations and restrictions: “Municipal authorities are merely trustees, and can only hold and apply the fund to the legitimate purposes of the trust. ’ ’

“Courts of chancery will interfere to restrain such authorities from a misuse of the fund entrusted to them or its appropriation to a purpose not warranted by law.”

Where the suit is brought by taxpayers, who were not parties to the contract, the fact the contract had become executed by the other party would not affect the right of the taxpayers to maintain the suit. Litz v. Village of West Hammond, 230 Ill. 310.

Appellees recognizing that the payment of these expenses must be justified by showing that it was for corporate purposes and within the law, their first contention is that under the head of contingent expenses it was included in the annual appropriation ordinance. This is done to meet section 91, ch. 24, Hurd’s Rev. St. (J. & A. 1363), which provides that the corporate expenditures for appropriations of the city or village in any one year cannot exceed the amount provided for in the annual appropriation bill of that year, and no contract can be legally made or expense incurred unless the object of the contract or expenditure shall have been included in said appropriation bill, except in an emergency. There was no fund for improvement of levees included in this appropriation bill.

It is by answer submitted to the court that the flood in the spring of 1912 brought about the contingency which justified the expenditure of money. If the money was paid out for the rebuilding of levees that were at that time destroyed and which it was necessary to repair, the argument would ■ be in line with the meaning of the word ‘ ‘ contingent, ’ ’ something uncertain and liable to happen, but to say because the authorities found after this flood that their levees were insufficient and their funds inadequate to make them sufficient, the mayor might of his own volition go soliciting funds from other sources for the benefit of the city and upon ‘his return call upon the city to be reimbursed to the amount claimed by him to have been expended, does not fall within what we regard as contingent expenses for corporate purposes. This under the head of contingent expenses would lead to favoritism, corruption, private bargain and the exercise of improper influence. Money held by the trustees of said fund for contingent expenses must be applied directly to that purpose and not indirectly. The indirect route takes it out from under the head of contingent expenses. As to the second contention of appellees, that the appropriation for expenses aforesaid were legal, our attention is called to an act to enable cities and villages threatened with overflow and inundation to levy taxes by vote of electors in excess of the two per cent, to strengthen, build, raise or repair the levees around the same and issue anticipation warrants on such taxes. Hurd’s Bev. St. 1903, page 543. That in pursuance of said act the city of Cairo passed ordinance No. 86 October 13, 1897, making the levy authorized by vote October 1, 1897, under ordinance No. 81, and that in pursuance of the levy aforesaid the city acquired a large sum of money known and designated as the “Levee Fund,” and that there remains in said fund so levied and collected the sum of $4,500, out of which said expenses could be lawfully paid. The act under which this fund was levied and collected had been declared unconstitutional. Hodges v. Crowley, 186 Ill. 305.

It is not necessary in this proceeding to determine for whom or for what this fund is to be held or used, but to determine whether or not as against the objection of a taxpayer any part of it may be used for paying these expenses. George Parsons had no express contract with the city to repair, rebuild or strengthen any levees or to furnish anything, money or material, for that purpose. He could not claim any part of this fund for any other purpose, and the city council could not speculate with this money to raise more money for the same purpose.

Appellees, as the third ground, insist that the allowance of this bill was lawful because section 3 of art. VII of chapter 24, Rev. St. (J. & A. ¶ 1362) gives the city council the power to order an improvement, the necessity of which is caused by any casualty, or accident, after the annual appropriation bill has been made, by a two-thirds vote.

There is no way of reasoning by which the payment of this bill is an act of the city council ordering an improvement, which was necessary to come under this statute. That it was not an accidental expense, as it was deliberately and voluntarily made without any action of the city council making it necessary.

This disposes of the three contentions of appellees justifying the expenditure of this $1,500, and in considering these propositions we have taken the statements of fact in the answer as true: That appellee, Parsons, acted voluntarily and for what he believed was for the best interest of the city of Cairo. However, upon the face of the pleadings, here is a contract and the appropriation of funds for a purpose not within the law. Whenever and wherever the illegality appears, the disclosure is fatal and the court will not proceed to judgment even though both parties assented thereto. In this case we have as parties more than individuals, officials or a city on the one side and the taxpayers on the other.

Appellee Parsons says his expenses were not paid back to him under the contract that he should secure an appropriation from congress. He admits that if he had an agreement express or implied for reimbursing him to the amount of his expenses contingent upon obtaining this legislation, it would be void as against public policy. If he went to Washington as mayor without an express agreement to have his expenses paid and congress had failed to make this appropriation, would it be contended that the city was legally obligated to pay his- expenses upon presentation? We think not, first, as an official of the city he had no right to create any such expense, and second, the expenses were for a purpose for which the law and the ordinance made no provision. The only claim made by appellee Parsons to give the city power to make this payment is that he had an implied contract with the city to go to Washington, D. C., and by lobbying secure for the city of Cairo this appropriation, which he did, and in doing so brought about what would be an improvement of the levees.

This contention brings the payment of this money within the line of authorities that makes money paid contingent upon obtaining legislation unlawful. Hazelton v. Sheckels, 202 U. S. 71. Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466.

This was an unauthorized diversion of the public funds of the city and a subject for injunction. City of Chicago v. Nichols, 177 Ill. 97.

Appellee George Parsons having no legal claim against said city, and no claim that the law would permit said city to pay, cannot obtain relief in a court of equity. The decree and judgment of the Circuit Court is therefore reversed and the cause remanded with directions to the Circuit Court to set aside said decree, and enter a decree overruling motion to dissolve injunction and the making of the temporary injunction permanent.

Reversed and remanded with directions.

Mr. Justice Higbee

dissents from the conclusions reached by the majority of the court in this cause, his views in regard to the matters in controversy being fully expressed in the original opinion filed herein.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Florence Bowler Cash, Defendant in Error, v. Elgin T. Cash, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of St. Clair county; the Hon. William H. Gkeeit, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by Florence Bowler Cash against her husband, Elgin T. Cash, for separate maintenance, in which the court entered a decree that she was entitled to the relief prayed for, and ordered her husband to pay her $75 a month for alimony, and a further sum of $600 for her support and maintenance from July, 1912, to June 30, 1913; also that he pay her $350 as solicit- or’s fees and expenses of suit, with the additional provision that if the decree was appealed from or writ of error sued out upon the same, that he pay her the further sum of $100 for solicitor’s fees in the Appellate Court. It was also decreed that defendant in error should have and hold as her own, certain household furniture and personal property. From which decree the husband prosecutes a writ of error.
    This case was previously before the court on- appeal (See 180 Ill. App. 31).
    The evidence showed that plaintiff in error was engaged in the commission business, buying and Selling live stock; that his books showed that he sold hogs of the value of $3,000,000 for each year, and for the five months of 1913 preceding the trial, the amount of credits received by him aggregated more than $2,000,-000; that during the five months previous to the last trial he bought and sold more than 100,000 hogs; that at the time of the second trial he was paying to one of his office employees, who was his uncle, $150 a month, to another employee $90 a month, and two others $75 a month; that his rent was $20 a month, and his telegraph and telephone bills something like $200 a month. In addition to this there was evidence of personal expenses to a considerable amount incurred by him. It also appeared that he was the owner of real estate valued at several thousand dollars and owned an automobile valued at some $2,000. As to the standard of living to which his wife had been accustomed, it appeared that it had cost plaintiff in error about $150 a month when they were living together to keep his house.
    Abstract of the Decision.
    1. Husband and wife, § 243*—when allowance of alimony for separate maintenance not excessive. An allowance of $75 a month to a wife as alimony in a proceeding for separate maintenance, held not excessive under the evidence.
    2. Husband and wife, § 249*—when allowance of solicitor’s fees in separate maintenance suit not excessive. The allowance of $350 to a wife for expenses and solicitor’s fees in an action for separate maintenance, together with an additional sum of $100 in the event of an appeal, held not excessive under the evidence.
    3. Husband and wife, § 242*—when household goods awarded wife in separate maintenance suit. A wife should, not be awarded the ownership of household furniture and goods in a separate maintenance proceeding, since to do so would amount to the allowance of alimony in gross.
    D. J. Sullivan, for plaintiff in error.
    Kramer, Kramer & Campbell, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    St. Louis, Iron Mountain & Southern Railway Company, Appellant, v. H. H. Hall Construction Company, Appellee.
    (Not to he reported in full.)
    Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by the St. Louis, Iron Mountain & Southern Railway Company to recover from the H. H. Hall Construction Company for freight and advanced charges on a car of cast-iron pipe, claimed to have been shipped from Chattanooga, Tennessee, and delivered to defendant on plaintiff’s track at Herrin, Illinois, where defendant was engaged in installing a city water plant. From a judgment against plaintiff for costs, the latter appeals.
    It appeared from the proofs that defendant had erected a derrick for the purpose of unloading the cars of pipe which were received for use in connection with the water system; that during the summer and fall of 1912 some thirty or forty carloads of material were delivered on this side track by plaintiff and unloaded by defendant.
    The only question presented was whether a earmarked “I. C. No. 118461,” was delivered to defendant on such side track. Plaintiff introduced witnesses who testified that the car in question was “spotted” on the house track at defendant’s derrick on September 4, 1912, and defendant’s superintendent notified that the car was there. Defendant produced witnesses who testified that it was never placed upon such track nor received by it. Defendant’s superintendent in charge of its work stated that he received a bill of lading for the car in question about the latter part of August and was on the lookout for it but that he did not get it, and he denied that he was ever notified that this particular car had been received. He also stated that while some thirty to forty cars of pipe were received by defendant, that the notice given it was always in general terms. The president of defendant, Mr. Hall, testified that he received the bill of lading about September 1, 1912, and that he made inquiry from time to time of defendant’s agent at Herrin regarding the car and was informed that it had not yet come. A letter was also introduced in evidence over defendant’s objection, addressed to Mr. Hall, dated January 10, 1912, and signed by E. M. Swisher, defendant’s agent at Herrin, saying: “Referring to yours 9th beg to advise we have not as yet rec’d. M. & 0.118461 car and 6 in. pipe yet.” Swisher testified that there was but one car in dispute and that was the I. C. No. 118461, and that was the one he referred to in this letter. It also appeared that the expense bill for the car was not rendered defendant until September 30, 1912, and that it was customary to render the same at the time of the delivery of the car. The jury were instructed that plaintiff had sued for freight charges on a car of pipe, which it claimed was delivered to defendant, and that it was incumbent upon plaintiff to prove, by a preponderance or greater weight of the evidence, that the car of pipe was delivered to defendant before it could recover. Other instructions told the jury that it was sufficient to entitle plaintiff to recover, if it placed the car on its delivery track at the usual and customary place for the delivery of such cars of pipe to defendant, and had not received payment for transportation thereof.
    H. L. Browning and L. O. Whitnel, for appellant; E. G. Merriam, of counsel.
    Dan McGlynn, for appellee.

      Abstract of the Decision.
    1. Carriers, § 211*—what evidence admissible in action for freight charges. In an action by a carrier to recover freight and advanced charges on freight shipped in an I. C. car No. 118461, a letter written by the carrier’s agent to the consignee with reference to M. & O. ear No. 118461, held admissible, where the agent testified that but one car was in dispute which was referred to in his letter.
    2. Carriers, § 211*—burden of proof in action for freight charges. In order to recover freight and advanced charges on a car of iron pipe, a carrier has the burden of showing that it was delivered to the defendant by being placed on a track where he customarily unloaded cars consigned to him.
    3. Appeal and error, § 1411*—when verdict on conflicting evidence not disturbed. Where the evidence is conflicting as to whether a carrier delivered a car of iron pipe to the defendant, a verdict in favor of the latter, in an action to recover the freight and advanced charges, will not be disturbed on appeal.
    4. Appeal and error, § 1489*—when unresponsive question not ground for reversal. An unresponsive answer to a question constitutes harmless error where the subject to which it relates is fully covered by other portions of the witness’ testimony.
    5. Carriers, § 211*—what evidence admissible in action for freight charges. An expense bill for freight and advanced charges submitted by a carrier to the defendant is admissible in evidence in an action to recover the' identical charge mentioned in the bill.
    6. Carriers, § 211*—instructions in action for freight charges. An instruction in an action to recover freight and advanced charges on a carload of iron pipe, to the effect that the carrier could recover only by proving a delivery of the car to the defendant, held not erroneous, where other instructions given the jury permitted the plaintiff to recover if the car was placed on a track where the defendant customarily unloaded cars consigned to him.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Anna E. Page, Defendant in Error, v. W. R. Wright, Plaintiff in Error.
    (Hot to he reported in full.)
    Error to the Circuit Court oí Fayette county; the Hon. Jambs C. McBride, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed,
    Opinion filed May 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Anna E. Page, the owner of a livery stock including an automobile, a gasoline engine and lighting outfit, and some other articles, sold the same to C. E. Wilson for $2,000, he giving in part payment his note for $1,025 due April 1,1913, secured by a chattel mortgage on the livery outfit. On March 29, 1913, Wilson took up this note by executing a judgment note to Mrs. Page for $1,045.95 due ninety days after date, and also secured such note by chattel mortgage on the livery stock, which mortgage was duly acknowledged and recorded on April 5, 1913. On April 2, 1913, C. N. Cruse, a brother-in-law of Wilson, signed a note with him as his surety for $250, payable to the Ramsey Bank, and Wilson gave him a second mortgage on the livery stock for $600 to protect him. When the renewal mortgage matured, there being then due and unpaid upon it the sum of $1,060, Mrs. Page obtained a bill of sale from Wilson for the property named in the mortgage; and an arrangement was made that Wilson should hold the property for her use and keep account of the business done by him. It was also arranged that Wilson might sell the property if he could do so, and if anything was left after paying Page’s indebtedness, he was to have it. Shortly afterwards, Wilson secured W. R. Wright to assist him in trying to dispose of the stock, and through this action Wright became acquainted with the manner in which Wilson was holding the stock; and on learning that the bill of sale was not recorded, informed Wilson that the lien was invalid, and offered to buy the property of him. Cruse, with Wilson’s consent, turned over the $600 mortgage to Wright who then paid off Wilson’s note to the bank for $250, upon which Cruse was surety, and certain other notes owed by Wilson, amounting in all to $855; and thereupon Wilson gave him possession of the mortgaged property. Afterwards Wright sold the automobile for $150, and the livfery stock proper to Lee and Gilbert for $1,000, leaving the gasoline engine, lighting plant and oil tank, valued at $300, on hand.
    Abstract of the Decision.
    Fraudulent conveyances, § 308

      —when ptirchaser in violation of Bulk Sales Law liable to personal judgment. Where the plaintiff sold a livery stock taking back a chattel mortgage thereon, which was duly recorded, the purchaser then giving a creditor a second mortgage, and at the maturity of the first mortgage gave the plaintiff a bill of sale of the property and agreed to sell it for the plaintiff's benefit, but later conspired with the defendant, who had learned that the bill of sale was void because not recorded, and sold him the property without complying with the Bulk Sales Law, and the latter paid off the second mortgage and then sold the property to a third person, held that the sale to the defendant was void for noncompliance with the Bulk Sales Law, and that in a chancery suit against him a personal decree could be rendered in favor of the plaintiff for the amount due him under his bill of sale.

      Mrs. Page contended that the sale from Wilson to Wright was not in accordance with the provisions of the statute in regard to sales in bulk.
    A decree was entered against Wright in favor of Mrs. Page for $1,060, with interest at the rate of five per cent, per annum from the 1st day of October, 1913, and the costs of suit, from which the defendant appeals.
    F. M. Guinn and E. B. Spurgeon, for plaintiff in error; Prettyman, Velde & Prettyman, of counsel.
    Albert & Albert, for defendant in error.

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

   Mr. Justice Higbee

delivered the opinion of the court.

McBbide, J., having tried this case in the court below, took no part on the hearing in this court.


text:
    A. Pixley, Appellant, v. John Swail, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lawrence county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action by A. Pixley, the assignee of two notes purporting to have been signed by the defendant, John Swail, who denied the execution thereof. From a judgment in favor of the defendant, the plaintiff appeals.
    The evidence as to the execution of the notes was conflicting. That of the plaintiff was to the effect that they were signed by the defendant, and that his signature was subsequently acknowledged before witnesses, who testified to that fact. The defendant-testified that he did not sign the notes and denied that he ever acknowledged his signatures or requested any person to witness them. He also introduced the testimony of seven witnesses, six of them bank officials, who testified that they were familiar with the defendant’s handwriting, and that the names attached to the notes were not his signatures.

      Abstract of the Decision.
    1. Bills and notes, g 408*—burden of proving execution of note. In an action on a note where the defendant files a sworn plea denying its execution, the burden is on the plaintiff either to prove that the defendant signed the note, or acknowledged before witnesses that the signature was his.
    2. Appeal and error, § 1411*—when verdict on conflicting evidence not disturbed. The verdict of a jury based on conflicting evidence will not be disturbed although not in favor of the party producing the greatest number of witnesses.
    3. Bills and notes, § 441*—sufficiency of evidence as to signature of matter. A verdict in favor of the defendant in an action on a note will not be disturbed where the evidence pertaining to the genuineness of his signature is conflicting.
    4. Bills and notes, § 431*—what instruments may be used for comparison of disputed signature. The fact that a motion and affidavit filed in a cause and bearing the signature of the defendant were shown expert witnesses who testified in relation to the genuineness of his signature to a note, held not erroneous.
    S. J. Gee, for appellant.
    B. O. Sumner and McGaughey & Tohill, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Joseph H. O’Hare et al., Appellees, v. Helen E. Johnston and Mary B. Johnston, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Fayette county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Rehearing denied July 14, 1915.
    Statement of the Case.
    Bill filed by Joseph H. O’Hare and others for the construction of the fourth clause of the will of Benjamin F. Johnston, deceased. From a decree sustaining the validity of the instrument,. Helen E. Johnston and Mary B. Johnston appeal.
    The fourth clause of the will directs the executors to deliver or pay to a certain trust company two hundred shares of the stock of a designated corporation, or other securities of equal value, to be held in trust for thirty years, the income to be paid semi-annually to the testator’s two children, William M. Johnston and Hazel D. Johnston. At the expiration of that period the principal was directed to be divided between them. It was further provided that in the event of the death before the testator of either of the children without issue, that the trust fund should be held for the use of the survivor; and in the event of the death before or after the testator of either of his said children leaving issue, that the income from the principal given to their parents should be paid to such issue, and the principal given them at the expiration of the thirty years. The will directed that the residue of the estate should be converted into money and divided equally between the testator’s widow and his said two children.
    The will was executed July 2, 1904, when the testator was fifty-five years old. His immediate family at the time was his wife and his two children, William M. Johnston, twenty-one years old, and Hazel D. Johnston, about eighteen years old. The testator died February 2, 1905. His daughter married Joseph H. O’Hare July 18, 1905, and two years later Mary Hazel O’Hare was bom. William M. Johnston died January 20, 1913, intestate, leaving as his only heirs at law, his wife Helen E. Johnston, his mother Mary B. Johnston, and his sister Hazel D. O’Hare, who died May 15, 1913. Mrs. Johnston was appointed administratrix of her deceased husband’s estate, while Joseph H. O’Hare was appointed administrator of his wife’s estate. Shortly after the death of Mrs. O’Hare a bill was filed by Joseph IT. O’Hare, individually, and as administrator of his deceased wife’s estate, and by her child, Mary Hazel O’Hare, against the widow of the testator and Helen E. Johnston.
    The main contention of the defendants is that the fourth clause of the will of Benjamin F. Johnston is obnoxious to the rule against perpetuities.
    At-the trial the following amounts were allowed to the solicitors representing the various parties: To the solicitor^ for the complainant, Joseph H. O’Hare, $4,500. To the guardian ad litem of the infant complainant, Mary Hazel O’Hare, $2,250. To the solicitors for the trustee, $2,250; and to the solicitors for the defendants, Mary B. Johnston and Helen E. Johnston, $3,000, all of which together with the costs of the suit were ordered paid by the trustee from the trust fund.
    Albert M. Kales, William D. Bangs and Arthur Bob, for appellants.
    Hugh V. Murray, John J. Brown, M. P. Murray, George E. Murray and Aloys B. Lager, for appellees Joseph O’Hare and others.

      Abstract of the Decision.
    1. Perpetuities, § 7*—when bequest violates rule against. A bequest of personalty in trust, the income to be paid to the testator’s two children during the period of thirty years, when the corpus was to be divided between them, and providing that if either child should die without issue before or after the testator that the survivor should take the other’s share, and in the event of the death of either child with issue before or after the testator that the issue should take the parent’s share, held, where both children died within eight years after the testator, that the bequest was in violation of the rule against perpetuities, and void.
    2. Winns, § 369*—when bequest of income carries title to corpus. The rule that the gift of the whole of the interest or income from a legacy vests the principal at the death of the testator does not apply to a bequest by which the corpus is expressly payable at a fixed future day providing the legatee be then alive.
    3. Winns, § 493*—when invalidity of trust does not invalidate entire will. The invalidity of a clause of a will creating a trust because in violation of the rule against perpetuities, held not to vitiate the remainder of the instrument.
    4. Winns, § 435*—when allowance of solicitor’s fees not excessive in action to construe will. The allowance of solicitors’ fees from a trust estate in an action to determine the validity of a testamentary trust, held, with the exception of that allowed the complainant, not to be excessive.
    J. G. Burnside and Stewart, Bryan & Williams, for appellees J. GL Burnside and St. Louis Union Trust Company.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    H. J. Hopple, Appellant, v. E. I. DuPont DeNemours Powder Company, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lawrence county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action in assumpsit by H. J. Hopple against E. I. DuPont DeNemours Powder Company to recover for work and labor performed in cleaning out an oil well after it had been shot by the defendant. From a judgment in favor of the defendant, the plaintiff appeals.
    The evidence showed that the plaintiff, the president of the Morrison Oil Company, was employed by it to drill and deepen an oil well; that after the well was down from 1,625 to 1,675 feet, oil was found, and defendant was employed to shoot it, and in doing so put in a shot consisting of 120 quarts of nitro glycerine in six tin containers, each seven feet and two inches long. On the bottom of the first shell was placed an anchor twelve inches in length, so that the six containers, when placed in order, extended a distance of forty-four feet from the bottom of the well; that when the shot was discharged there was a noise in the well and the casing jumped five or six inches; that after this the casing was pulled up and found to have been shot off about ninety-two feet above the bottom of the well, or forty-nine feet from the top of the shot.
    Plaintiff claimed that he refused to clean out the well until ordered to do so; that the next day one Meeker, defendant’s agent, examined the pipe and considered the question of cleaning out the well, and said to an employee of plaintiff in charge of his tools at the well: “The job is on us, go ahead and do as Mr. Hopple says, as lie knows more about it than I do,” which was communicated to plaintiff, who then put his men to work cleaning out the well, and that they were employed in the work some twenty-four days. There was also evidence tending to show that Meeker told persons on different occasions that he had employed plaintiff to clean out the well.
    Mr. Meeker and others on the part of defendant denied these statements, and it was shown by the testimony of defendant’s witnesses that plaintiff presented a bill for services on the well to defendant in February, 1912, which was not paid; that afterwards on March 7, 1912, plaintiff met defendant’s general manager and Meeker, and had a conversation about the well and the bill rendered by plaintiff to defendant; that in the course of such conversation it was agreed that when the weather became warmer, plaintiff should go ahead with the work of cleaning out the well, and if it should be ascertained that the shot put up in the well by defendant had been exploded, that the defendant should owe nothing to plaintiff for his work; but if, on the contrary, it was found that the shot had not been exploded, defendant would settle with plaintiff for cleaning out the well; and it was further agreed that when work was resumed on the well, defendant should be notified, and that one of its employees could be present during the continuance thereof. Subsequently the work on the well was resumed, defendant notified and an employee was sent to represent it at the well. After some work had been done however, and before the well was sufficiently cleared out for it to be determined whether or not the shot had been exploded, plaintiff abandoned the work without the knowledge of defendant and brought this suit.
    S. J. Gee, for appellant.
    McGaughey & Tohill, for appellee.

      Abstract of the Decision.
    1. Appeal and error, § 1411

      —when verdict on conflicting evidence not disturbed. A verdict for the defendant in an action for cleaning out an oil well after it had been shot will not be disturbed on appeal when depending on conflicting evidence as to the existence of an agreement for compensation.
    2. Evidence, § 101

      —when evidence rendered admissible by admission of other testimony. In an action to recover for cleaning out an oil well after the alleged failure of the defendant to shoot it, the latter may introduce evidence as to the manner of shooting wells, and also as to whether the well was in fact shot, where the plaintiff gave evidence tending to show that it was not.
    3. Evidence, § 101

      —when evidence rendered admissible by admission of other testimony. Where the plaintiff, in an action to recover for cleaning out an oil well under an alleged contract with the defendant, introduced testimony to show that the latter’s agent made an appointment with him to settle the matter, the defendant may show that the purpose of the meeting was to settle an account due the latter from a corporation of which the plaintiff was president.
    4. Instructions, § 120

      —refusal of instructions not based on evidence. A requested instruction as to the binding force of a custom was properly refused where there was no proof of the existence of a custom.
    5. Instructions, § 120

      —refusal of instructions not based on evidence. A requested instruction in general terms was properly refused when not applicable to the facts proven.

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

   Mr. Justice Higbee

delivered the opinion of the" court.


text:
    Toledo Computing Scale Company, Appellant, v. A. C. Johnson, Trustee, Appellee.
    1. Judgment, § 11

      —when presumed to have been entered. Where there is no proof as to when a judgment was in fact entered, it will be deemed to have been entered before execution upon it is issued.
    2. Judgment, § 373

      —when imports verity. A judgment entered before the execution thereon imports a verity, and, in the absence of fraud, cannot properly be attacked by parol evidence, especially in a collateral proceeding.
    3. Execution, § 183

      —when cannot he questioned collaterally. Where all" the steps taken in connection with an execution and levy appear to be regular, they cannot be questioned in a collateral proceeding.
    4. Execution, 64

      —when lien prior to that of conditional vendor. The lien of an execution creditor secured by levy of execution upon goods sold under conditional contract, title to remain in vendor until purchase price is fully paid, takes priority over that of the conditional vendor.
    5. Bankruptcy, § 8

      —when trustee entitled to possession as against conditional vendor. Under the Federal Bankruptcy Act, sec. 67, providing that "claims which for want of record or other reasons would not have been valid liens as against the claims of the creditors of the bankrupt, shall not be liens against his estate,” and subrogating the trustee in bankruptcy to the rights of the creditor for the benefit of the estate, the trustee is entitled to possession of personal property sold under conditional contract, title being retained in vendor until the purchase price was fully paid, where the 'goods are taken under execution by an execution creditor, as against the claim of such conditional vendor.
    6. Sales, § 432

      —when vendor on conditional sale entitled to possession. One who sells goods under conditional contract, title to be retained in vendor until purchase price is fully paid, has a right to take possession of the property upon default as against the claim of the vendee.
    7. Bankruptcy, § 8

      —when vendor on conditional sale entitled to possession as against trustee. A conditional vendor of personal property is entitled, upon default, to the possession of the property as against the trustee in bankruptcy of the vendee, as such trustee acquires no greater rights therein than the bankrupt.

      Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Rehearing denied July 7, 1915.
    N. C. Lyrla, for appellant.
    W. L. Coley, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment in a replevin suit wherein appellant sought to obtain possession of two sets of computing scales. The court which heard the case, without a jury, found appellee was entitled to possession of the scales and awarded him a writ of retorno habendo and gave judgment against appellant for costs. Appellant here seeks to reverse the judgment of the city court of East St. Louis, which tried the' case, on the ground that the evidence showed appellant’s right to recover the goods.

There was no controversy in the proofs which disclosed the following facts: In January, 1912, the W. J. Kane Grocery Company, a partnership composed of W. J. Kane and Kichard Gither, doing business in East St. Louis, purchased of appellant two sets of computing scales for $170, the same to be paid for in instalments, according to the terms of a written contract then entered into between the parties to the sale, which also provided that the title to such scales should remain in appellant until the purchase price or judgment for the same should be paid in full; and that upon default in payment of any instalment, the remaining instalments should at once become due and payable and that appellant’s agents might take possession of and remove said scale without legal process, and that all payments theretofore made should be kept by appellant and deemed as having been made for the use of the scale during the time it remained in the possession of said grocery company. On December 19, 1912, Armour & Company obtained a judgment before a justice of the peace against the members of the grocery firm for $100.77. Affidavit was made for an immediate execution which was issued to P. F. Erwin, a constable, who on the same day levied on a portion of the stock of the company. While it does not appear in the list of goods on the back of the execution, yet it was shown that the constable, in addition to the things therein mentioned, took possession of one set of said computing scales. On the following day the grocery partnership made an assignment to A. C. Johnson for the benefit of its creditors, and among other property taken possession of by the assignee was the other set of scales. On December 23, 1912, appellant prepared a notice addressed to Armour & Company, P. F. Erwin, constable, A. C. Johnson, trustee, and W. J. Kane Grocery Company, demanding that they deliver up to it or its attorney both of said computing scales. At that time there had been paid on the scales by the grocery company the sum of $112, leaving a balance of $58, and default had been made in payments due for that amount. Appellant failed to get the scales demanded, and on December 26th sued out a writ of replevin before a justice of the peace and the case subsequently went by appeal to the Circuit Court, with the result above mentioned. On January 16, 1913, the grocery partnership filed a voluntary petition in bankruptcy, and on that day appellee .was appointed trustee in bankruptcy of the estate of the bankrupts. Thereafter, appellee filed a petition addressed to the referee in bankruptcy setting forth the suit, execution and levy, that the constable was threat-' ening to sell under said execution and asking for an order restraining the sale and for the turning over of said property to him, and that he be subrogated to the rights of Armour & Company under the execution. In compliance with the petition, the referee ordered “that the above named Armour & Company, and P. F. Erwin, constable, be and they are hereby directed to surrender the property seized under the execution mentioned in said petition to A. C. Johnson, trustee of said estate to be by him administered in this cause, according to law, and that Armour & Company are hereby directed to file their claims against said estate in this cause for allowance and payment according to law.” Thereafter, appellee and Armour & Company submitted to the referee in bankruptcy the question as to whether the trustee or Armour & Company had priority of claim as to the goods taken by Armour & Company under execution against the grocery company, and it was held that by reason of the judgment and levy having been made within four months prior to the time of the filing of the petition in bankruptcy, that any lien procured by Armour & Company under the facts presented in the stipulation of the parties presented to the referee should be discharged. In the meantime, appellee Johnson had taken an appeal to the Circuit Court of St. Clair county, from which a supersedeas was issued on January 31,1913, to the justice who tried the case and the suit was subsequently, on change of venue by agreement of the parties, tried in the City Court of East St. Louis.

The facts in the case having been undisputed, the question on the trial was as to the rights of the respective parties to said computing scale under the law as applicable to such facts. Seven propositions of law were submitted by appellant to be held by the court, five of which were refused and two given. The two which were given held: First, that under the contract introduced in evidence, appellant had the right to retake the property in question upon default being made in the terms of said contract, proper demand having been made of the defendants. We assume that this proposition of law referred to the right of appellant to retake its property from the grocery company and that the word “defendant” used in the proposition referred to members of the grocery firm. Second, that the purported assignment executed by the grocery company to Johnson conferred no title to the property in controversy and did not defeat or extinguish the title of the plaintiff in said property, but that said assignment for the benefit of creditors to said Johnson was inferior and subject to the right and claim of appellant to the property in controversy. This proposition of law referred to the assignment made by the grocery company to Johnson for the benefit of the creditors of the firm and not to the assignment in bankruptcy, and the sustaining by the court of both these propositions was correct. The propositions refused set out the contentions of appellant as relied upon here by it for the reversal of the case. They are: That the execution was void and conferred no lien for the reason that there was no valid existing judgment at the time of the issuing of the execution; that no valid levy was made upon the property in question; that there was no evidence in the record to show that the person who held the execution and attempted to levy it was an officer de jure; that there was no evidence that the amount called for in the execution was due and unpaid, and that the property in controversy was taken in pursuance of the execution. In regard to the first proposition, the testimony of appellant’s attorney was admitted to show that he had examined the docket of the justice of the peace on the day the replevin writ was issued and that he found no judgment written up in the Armour suit against the grocery company. The docket of the justice, however, was introduced on the trial of this ease and showed the judgment in favor of Armour & Company against the members of the firm of the grocery company, duly entered on December 17th, for $100.77 and costs of suit. There was no proof as to when this judgment was in fact entered, and we must assume that it was entered before the execution upon it was issued. A judgment so entered imports a verity, and in the absence of fraud cannot properly be attacked by parol evidence, nor can it properly be attacked in a collateral proceeding such as this. West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288; Roche v. Beldam, 119 Ill. 320; MacVeagh v. Locke, 23 Ill. App. 606; Richardson v. Beldam, 18 Ill. App. 527. While the above authorities relate to judgments of courts of record, we see no reason why they should not apply with the same force to judgments of justices of the peace where no fraud is charged or appears and the attack is collateral as in this case. Nor do we think the other contentions of appellant in relation to the execution and the levy of the same are well founded, as so far as the proofs here are concerned, all the steps taken in connection therewith appear to have been regular and cannot be questioned in this collateral proceeding.

In Gilbert v. National Cash Register Co., 176 Ill. 288, it is said, the doctrine laid down being quoted from Harkness v. Russell, 118 U. S. 678: “In Illinois ‘if a person agrees to sell to another a chattel on condition that the price should be paid within a certain time, retaining the title in himself in the meantime, and delivers the chattel to the vendee so as to clothe him with an apparent ownership, a bona fide purchaser or execution creditor of the latter is entitled to protection as against the claim of the original vendor.’ ” It is also there said: “Whatever may be the rule in other jurisdictions, it is well settled in this State that the owner of personal property will not be permitted to sell it, either absolutely or conditionally, and still continue in possession of it. The party in possession of personal property is presumed to be the owner of it, possession being one of the strongest evidences of title to personal property.” The levy of the execution of Armour & Company therefore constituted a superior lien upon the cash register taken in possession by the constable to that claimed by appellant. Section 67 of the Federal Bankruptcy Act provides that “claims which for want of record or for other reasons would not have been valid liens as against the claims of the creditors of the bankrupt, shall not be liens against his estate.” By the authority conferred by the same section of the Bankruptcy Act, the trustee in bankruptcy succeeded to all the benefits of the Armour execution. By virtue of the levy under the Armour execution, the constable was entitled to possession of the computing scale taken by him, and by virtue of the bankruptcy proceeding appellee, as trustee, succeeded to that right and was entitled to retain possession of said scale, and the finding of the court below so far as that scale was concerned was correct. As regards the scale held by the assignee under the assignment, which had never been taken into possession under the Armour execution, an entirely different situation appears to be presented. As against the grocery company, appellant had a right to take possession of the scale for default in its contract. Hooven, Owens & Rentschler Co. v. Burdette, 153 Ill. 672.

Under section 70 of the Bankruptcy- Act, the trustee succeeded to the property rights of the bankrupt grocery partnership, and no preference having been made as to creditors and nothing having been done to effect the rights of appellant, the trustee could have no greater rights or claims to the property as against appellant than the creditor, that is the grocery firm itself., While the constable might have levied on this scale also, he did not do so but left it in possession of the grocery company. Appellant therefore had the right to the possession of the scale under its contract, as against its debtor and also as against the trustee, and the court below should have sustained appellant’s claim to the possession of the scale last mentioned.

For the error above indicated as having been committed in regard to the holding concerning the right of possession to the computing scale not levied upon under the execution of Armour & Company, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Farmers’ League & Community Telephone Association, Appellee, v. Ohio & Mississippi Valley Telephone Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action in assumpsit by the Farmers’ League & Community Telephone Association, a corporation, against the Ohio & Mississippi Valley Telephone Company to recover damages for a breach of contract. From a judgment for plaintiff, defendant appeals.
    The contract sued on provided that defendant in consideration of the rental and toll derived from subscribers to the Carbondale and Marion, Illinois, exchange service of plaintiff, and certain additional considerations later set forth in the contract, would operate plaintiff’s telephone exchange plant then in operation in Carbondale and Marion for a term of fifteen years from May 1, 1909; that by the term “exchange plant” in each of said cities was meant “all outside exchange poles, cables, wires, cross arms, fixtures and appurtenances and the central office equipment including switch boards, cables, protectors, distributing racks, office furniture, fixtures and appurtenances;” that defendant would furnish free of charge through its exchanges, two telephones to the city of Carbondale and one to the city of Marion as required by the franchise granted by said cities respectively, said phones being located where the several city councils should designate; that defendant would also furnish the free use of all its lines to the bona fide subscribers to the system service over all lines owned or controlled by plaintiff, and in addition would give to subscribers in Jackson county connected with plaintiff’s Carbondale exchange free use of all lines owned or controlled by defendant in said county, and in like manner would give free use to plaintiff’s subscribers of the local lines owned or controlled by defendant in Williamson county connected with defendant’s Marion exchange. It was further agreed that plaintiff’s lines not ringing direct to the Carbondale switchboard should have free use of defendant’s local lines in Jackson county or lines connected therewith; and that those in Williamson county not running direct with the switchboard at Marion should have free use of defendant’s local lines and connections in that county; that in like manner plaintiff’s subscribers in Union county should have free use of defendant’s lines and connections in that county not calling through the switchboard at Anna, but that such free use above provided for should not extend beyond the county lines. It was further agreed that when five or more of plaintiff’s subscribers should build a line with five or more telephones connected therewith to the corporate limits of either of the three cities above named, defendant would connect said line with the central office of the city so connected with free of charge, and that the rate to be paid defendant by said subscribers for each of the telephones so connected would be fifty cents per month; that defendant would connect all lines then existing within the corporate limits of Carbondale and within the corporate limits of Marion and make all connections with the telephone of plaintiff’s bona fide subscribers and make all reports to the local exchange plants in said cities, meaning thereby all outside exchange poles, cables, wires, cross arms, poles, fixtures and appurtenances, the central office equipment, including switchboards, cables, cable protectors, distributing racks, office furniture and fixtures and appurtenances, sq as to keep the same in good condition, but that nothing in the agreement should be construed as an obligation on the part of the defendant to clear trouble on or maintain any part of the plants outside of the corporate limits of said cities; that when a bona fide subscriber of plaintiff for a period of one year should move from the country to Carbondale or Marion he should become as the other subscribers within the corporate limits of said cities and receive the same benefits; that defendant should furnish plaintiff’s subscribers service during the life of the contract at the same rate that was enforced at the time the contract was entered into and of the same standard of quality, and that defendant should pay the taxes on said telephone property of plaintiff now located in the corporate limits of said cities of Carbondale and Marion. It was further agreed that in case defendant failed to carry out any of the covenants of the agreement, plaintiff might enter upon and take possession of the property covered thereby, and that plaintiff should not sell any additional shares of stock in Carbondale and Marion; also that the agreement so far as it applied to Carbondale and Marion included only the present bona fide subscribers therein and did not admit of any additional local subscribers being .connected and enjoying the benefits provided for by the agreement.
    The declaration averred that plaintiff had well and truly performed and fulfilled all its part of the agreement mentioned in said contract to be done and performed by it but that defendant had not performed its part of the contract, the breaches assigned being that it had neglected and refused to furnish subscribers of plaintiff service of the same standard of quality as that furnished subscribers of defendant; that it discriminated against subscribers of plaintiff; that it had failed to connect five subscribers of plaintiff who had constructed a line to the corporate limits of the city of Anna; that it neglected and refused to give subscribers of plaintiff free service to all subscribers in Jackson county not ringing direct to the Carbondale switchboard, and the same averment was made with reference to subscribers in Williamson and Union counties not ringing directly to the Marion and Anna switchboards; that it failed to connect with all lines of plaintiff existing at the date of the contract within the corporate limits of Carbondale and thereby deprived subscribers of plaintiff with connections from within the city of Carbondale to Makanda and elsewhere; that it had refused and neglected to make reports of the exchanges and plants of plaintiff within the cities of Carbondale and Marion and had allowed plaintiff’s poles and wires to become out of repair, rot and decay, thereby depriving plaintiff and its subscribers of telephone connections from the city of Carbondale to other points in Jackson county, and that defendant had otherwise failed to keep and observe its contract; that by reason of the neglect aforesaid on the part of defendant, the property and good-will of plaintiff had been damaged and it had been hindered and prevented from getting new subscribers and from selling its shares of stock outside of the cities of Carbondale and Marion.
    Defendant pleaded the general issue and four additional pleas. The first additional plea alleged that one of the principal considerations leading defendant to enter into the contract was that plaintiff agreed to make defendant a valid lease of its telephone exchange plant in the city of Carbondale which it had failed to do. The second averred that the ordinances of said city, granting the franchise to plaintiff for its telephone plant, provided that the same could only be, transferred by the payment of $5,000 to the city; that plaintiff did not pay said sum and therefore said contract was void. 'The third stated that plaintiff represented it was the owner of the telephone exchange plant in the city of Marion, mentioned in the contract, and had full right to lease the same to defendant, and would defend the same against all incumbrances and liens, and warrants peaceable possession thereof; but that the switchboard at such place had been seized by the sheriff of the county by virtue of an execution against plaintiff, since which time such switchboard had not been in the possession of defendant; that a large number of other articles and equipment comprising said exchange had also been seized under execution and that defendant had been forced to pay the sum of $500 to settle liens and incumbrances against said property. The fourth was a plea of nul tiel corporation. To each of these additional pleas a demurrer was filed by plaintiff, which was sustained by the court and defendant thereupon elected to abide by its pleas.
    Abstract of the Decision.
    1. Corporations, § 59

      —when third person estopped to deny corporate existence. One who enters into a contract with a corporation and transacts business with it in that capacity will not be heard to deny its corporate existence in an action involving an alleged breach of the contract.
    2. Contracts, § 360

      —lohen plea not demurrable. Pleas which set up as partial defense to an action for damages for breach of contract, facts which have arisen since the contract was entered into and show failure to keep material provisions of the contract, are not demurrable.

      Martin & Glenn and Schwartz & Hays, for appellant.
    W. W. Barr and C. E. Feirich, 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 tonic and section number.

   Mr. Justice Higbee

delivered the opinion of the court.

3. Instbuctions, § 129 —what are requisites of instruction directing a verdict. If an instruction in an action of assumpsit for damages for breach of a contract directs a verdict for either party or amounts to such a direction in case the jury shall find certain facts, it must necessarily contain all the facts which will authorize the verdict directed, and it is immaterial that it does not undertake to instruct the jury as to the whole case but only as to particular parts of the contract.

4. Set-off and becoupment, § 8 —when damages may 6e set off. Damages incurred by the payment of liens upon a telephone exchange and equipment which had been seized under execution, may properly be set off in an action of assumpsit for damages for the breach of a contract to lease the telephone system.


text:
    James Biggs, Appellee, v. Carbondale Building, Loan & Homestead Association, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Jackson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action in assumpsit by James Biggs against the Carbondale Building, Loan & Homestead Association to recover damages for breach of an agreement to procure fire insurance on plaintiff’s property, whereby plaintiff incurred loss. From a judgment for plaintiff, defendant appeals.
    The declaration filed by plaintiff, James Biggs, was in assumpsit, and contained the common counts and one special count. The latter set out that defendant, the Carbondale Building, Loan & Homestead Association, was a corporation, under the laws of Hlinois, relating to building, loan and homestead associations; that on January 22, 1910, eighteen shares of stock in said association were issued to him and on that day he borrowed of said association the sum of $1,800; that to secure said loan he and his wife executed a note and mortgage to the association on certain real estate and also assigned to it an insurance policy in the “Sun Insurance Office of London” for $1,500, dated August 19, 1908, for a period of three years; that at the time of making said loan defendant had adopted the following by-law, pertaining to insurance -policies, which was then in force and a part of the contract between defendant and plaintiff, to wit: “In all cases where fire insurance policies have been transferred to the association as collateral security for loans, and the same are about to expire, the secretary shall notify the borrower; and should he or she neglect or refuse to renew the same, the secretary shall, without delay, cause a new policy to be issued and shall charge the same to the borrower with his or her next monthly dues, and for each neglect of duty as herein specified, the secretary shall be fined five dollars”: that in addition to said by-law, defendant had adopted the following rules and regulations upon the same subject:, “Borrowers will please keep insurance in force and policy in hands of secretary, as provided in mortgages. Policy renewed and in agent’s hands will not suffice, as secretary has no time to hunt up policies, but will hereafter, after giving notice of . expiration, cause property to be insured in company of his selection and charge premium to borrower. Failure to pay insurance is cause for foreclosure;” that defendant required said policy should be deposited with it, and by its agent agreed with and promised plaintiff that at the expiration of the policy on August 19, 1911, defendant would renew and effect insurance on the dwelling house on the mortgaged lot for $1,500; that defendant failed to renew the same or notify plaintiff of the expiration thereof, and on October 31, 1913, the house was wholly destroyed by fire without fault of plaintiff; that at the time of the loss of said house, plaintiff owed a balance to defendant on said note and mortgage of $1,186.78; that on account of defendant’s failure to reinsure the property as it had promised and agreed to do, it had become indebted to plaintiff in the sum of $1,500, less the amount of $1,186.76 due on said note and mortgage as aforesaid, and the cost of procuring said insurance, which would have been $12, leaving a balance due of $301.22, for which amount suit was brought. Three pleas were filed by defendant to the declaration,—the general issue, Statute of Frauds and ultra .vires.

    On the trial it was shown by the proofs that the stock was issued and the loan perfected, as stated in the declaration, by the assignment of stock and insurance policy and execution of said note and mortgage; that the by-laws contained the above provision and that the rules and regulations above set out were printed in the pass book issued to plaintiff; that the property was destroyed at the time stated and that its value was much more than $1,500; that plaintiff still owed defendant $1,186.78 after deducting the value of his stock; that defendant had not notified plaintiff of the expiration of the policy assigned to it, nor had it caused another policy to be issued; that the secretary of the association was ill at the time defendant gave the note and mortgage above referred to, and that the business was transacted on the part of defendant by one E. E. Eenfro, who acted as secretary of defendant with its knowledge and consent.
    Plaintiff testified that when the loan was made, Eenfro promised to look after the insurance and not to let it expire; that Eenfro said that he would take care of it. Eenfro testified that he did talk with plaintiff about having this old policy cancelled and a new one written, but that he did not remember having the conversation detailed by plaintiff or that he said anything about renewing plaintiff’s policy.
    Abstract of the Decision.
    1. Building and loan associations, § 12

      —when contract not ultra vires. The plea of ultra vires is not available as a defense to an action. in assumpsit for damages for breach of an agreement to procure fire insurance upon the expiration of a policy by a member of" a building and loan association against the company, where the company has the authority to make loans and provide for the security of the same upon real estate, improved and unimproved, as the obtaining of insurance is but an incident to such powers.
    2. Fkauds, Statute of, § 24

      —when not a defense. The Statute of Frauds is not a valid defense to an action for damages by a member of a building and loan association against the association for failure to procure fire insurance upon the member’s property which had been mortgaged to the association, because of the fact that the policy was not to be received for more than a year after a verbal agreement for reinsurance was made, where the rights of the member were not based solely upon such verbal agreement but upon by-laws, rules and regulations of the association, providing for a transfer of fire insurance policies as collateral security and making it the duty of the treasurer to notify the member before the policy would expire, and upon his failure to do so, to renew the policy and charge the premium to the borrower.
    W. W. Barr and C. E. Feirich, for appellant.
    John M. Herbert, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.