author: Mr. Justice Shurtleff

text:
    Springfield Marine Bank, Appellant, v. Benjamin F. Marbold et al., Appellees.
    Gen. No. 8,530.

      Opinion filed November 4, 1931.
    Rehearing denied and opinion modified and refiled February 12, 1932.
    Frank E. Blane and Hoff & Hoff, for appellant; Alonzo Hoff and Lawrence Hoff, of counsel.
    A. M. Fitzgerald and Edw. H. Golden, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Menard county, dismissing for want of equity appellant’s hill to foreclose a certain mortgage held by it. A decree was entered after a hearing upon a master’s report of evidence, the cause having been referred to the master to take evidence and report the same without his conclusions.

The bill of complaint charges that on March 9, 1927, Benjamin F. Marbold and wife, being indebted to one Joseph C. Bernard in the sqm of $45,000, made and delivered their note for $45,000, together with six interest or coupon notes, to secure the payment of which they at the same time, by their mortgage deed, conveyed the premises in question; that on March 14,1927, the said mortgage and notes were duly assigned to the complainant; that said Benjamin F. Marbold and wife have not paid the said $45,000 or any of the interest notes and in accordance with the terms of said mortgage the complainant has elected to declare the entire mortgage indebtedness due and to foreclose said mortgage. The bill also asks for the appointment of a receiver, as provided by the mortgage, and that the premises be sold, etc.

The answer of the defendant Benjamin F. Marbold admits the execution of the mortgage and notes and the subsequent assignment thereof to the complainant; admits that the mortgage provided for a receiver and foreclosure proceedings, and that the $45,000 and interest has not been paid, but denies the complainant has the right to foreclose said mortgage but has forfeited any rights it may have acquired by virtue of said mortgage deed. It further charges that the said Marbold was not indebted to said Joseph G. Bernard but that the latter was merely the agent of the complainant and the mortgage here in question was given for the sole purpose of securing a prior indebtedness of $100,000 owed the complainant. It further alleged that the mortgage in question was executed upon the representation that the complainant would co-operate with said Marbold in forming a trust for the benefit of all of his creditors of which he had a great number, and that if all of his creditors would join in said trust agreement the complainant would release its mortgage and share pro' rata with the other creditors; that Henry E. Pond, by virtue of a trust agreement entered into March 23, 1927, with said Marbold, became vested in all of said Marbold’s property; that said Henry E. Pond entered into the execution of said trust and that all of said Marbold’s creditors, including complainant, acquiesced in said trust agreement; that the complainant has therefore waived its rights under said mortgage deed and is estopped from maintaining its bill for foreclosure.

The answer of Henry E. Pond as trustee is virtually the same as that of the defendant Marbold, so far as the issues presented are concerned.

The appellant filed a general replication to both answers.

The evidence reported by the master disclosed the following facts: Appellee B. F. Marbold, who lived at G-reenview in Menard county, was president and ran the Marbold State Bank of Greenview and was also possessed of large real estate holdings consisting of some 2,630 acres of farm land and also some city property located in the counties of Menard, Sangamon, Mason and Logan. On March 7, 1927, the Marbold State Bank was closed by the auditor of public accounts of the State of Illinois, and it became apparent that Marbold’s affairs were in an involved condition. Sometime prior to this date Marbold had become indebted to the appellant, Springfield Marine Bank, in the amount of $100,000, which sum was for money loaned him upon his unsecured notes. For a considerable time prior to the closing of the Marbold State Bank, Marbold had had an application pending with one Joseph C. Bernard for a loan upon the property involved; and it was the understanding that the appellant was either, to be paid or to receive mortgages as security, but the loan was not made until two days after the failure of the Marbold State Bank or on March 9, 1927, and when finally made was made at appellant’s request. At that time the mortgage in question for $45,000 and another for $55,000 were given by Marbold and wife to Bernard and later, on March 14, 1927, were assigned to the appellant. At the time these mortgages were executed a verbal agreement was entered into between J. H. Holbrook, vice president of the appellant bank, and B. F. Marbold that the appellant would co-operate with Marbold in forming- a trust for the benefit of his creditors, and that if Mar-bold was successful in forming this trust and if all his creditors joined in it without preference in approximately 90 days, then the Marine Bank would release its mortgages and share pro rata with the other creditors.

Pursuant to this agreement and with the help of appellant, on March 23, 1927, a trust agreement was entered into between Marbold and appellee Henry E. Pond, who was made trustee of all of Marbold’s property for the benefit of his creditors. This agreement, which is appellee Pond’s Exhibit 1, among other things provided that Pond was to apply the money received by him in liquidating Marbold’s affairs: “. . . pro rata and without preference to each and every creditor of the said first party who shall within ninety days after the execution and delivery of these presents file with the said second party a statement, duly verified by affidavit, of the debt due and owing by said first party, and who shall within ninety days after the execution and delivery of these presents, agree in writing to accept the terms and conditions thereof, or within such time as may be granted. ’ ’

On March 31, 1927, Pond held a meeting of Mar-bold’s creditors at Greenview, at which meeting and with the approval of the complainant Pond told th| creditors that if all of the creditors would come in uni der the agreement, that they (Springfield Marine Bank) would waive their mortgages and that the Marbold State Bank would waive its preference under its mort| gage and share pro rata with the common creditors.

At this meeting a number of the creditors signed the trust agreement. The part of the instrument signed by the creditors provided:

“For value received and on account of each other agreeing to a composition of settlement of indebtedness the undersigned hereby consent and agree to the appointment of Henry E. Pond as a Trustee by Benjamin F. Marbold, for the purpose of converting his property, real, personal and mixed, into money for distribution to his creditors . . . and we agree that we will accept our pro rata part of assets as a compromise in full to be distributed by such trust agreement hereto attached. ...”

It further provided that Mrs. Marbold was to receive 25 per cent in lieu of dower, and contained a covenant not to sue the debtor or his estate.

The witness Holbrook was vice president of and represented appellant, the Springfield Marine Bank, in all of these proceedings. There is a sharp conflict in the testimony given between the statements of the witness Holbrook and appellee Pond, trustee. It was shown that at the time of the giving of these mortgages and before, Marbold had conversations with Holbrook in which Holbrook agreed with him that if the creditors would sign up and enter into a trusteeship agreement without preference, that the bank would join. Upon these conditions the mortgage was made. Holbrook testified: “He (Marbold) did not want to get into trouble with his other creditors and he wanted it; he was afraid that they would precipitate trouble.” Holbrook was here referring to the execution of the mortgages in question. “On those conditions he made the mortgages.” Those conditions as stated by Holbrook in full are as follows: “He spoke of trusteeship, that he thought of making a trusteeship and asked us if we would go in on that trusteeship if he made it and release the mortgages. We told him that if everyone would sign and everyone would enter into it without preference, that we would join in the agreement provided it was done in a reasonable length of time, approximately ninety days. Those were the conditions we laid down as to whether or not we would join in' that trusteeship, and that is the agreement made with Mr. Marbold and on those conditions he made the mortgages.” At that time Holbrook knew of the trouble at the bank.

Following the execution of the two mortgages for the appellant, various efforts were made to secure a trustee to whom all of Marbold’s property would be transferred, — one who would be satisfactory to the creditors. Little progress was made. E. B. Waldmire made such an effort and failed. After his failure Waldmire called upon Henry E. Pond, appellee, and requested him to go to Springfield and confer with officers of the appellant bank. This he did. Pond called at appellant’s bank and Holbrook, its vice president, stated to Mm that the thing to do to effect a fair settlement of the indebtedness of Mr. Marbold was to consummate a trust, and Pond complained that appellant already had a preference in the shape of the two mortgages and Holbrook replied: “If we get a trust agreement signed by all creditors the Marine Bank would waive their apparent preference undei those two mortgages_.and come in and share with the creditors pro rata. ’ ’ (As a result of the conferences hacj by Pond with representatives of the Marine Bank, the trust agreement was prepared by the attorney and officers of the Springfield Marine Bank. Prior to its execution no one, so far as the evidence shows, but the Marine Bank, through its officers and attorneys, B. F. Marbold and his wife and their attorney, Judge F. E. Blane, and the defendant Pond, had seen or approved this trust agreement. None of the creditors had seen it. Mr. Hoff drew up the trust agreement. He is one of the attorneys for the Springfield Marine Bank and also a director of that bank. No statement or charge for the preparation of the trust agreement was ever rendered by Hoff to Pond. The trust agreement was dated March 23, 1927.

Following the execution of the trust agreement deeds were executed and delivered by Marbold and his wife conveying his real property to the defendant Pond.

On March 31, 1927, a first meeting of the creditors of Marbold was held. Notice had been sent out to the creditors by Pond. At that meeting Pond advised the creditors that if they would sign up and agree to the trust agreement which had been prepared and would permit him to handle the property for the best interests of all of the creditors, upon a pro rata basis, that the Marine Bank would also abide by such agreement and participate pro rata with them, and would waive any preference under these mortgages. He further stated that he had authority from Holbrook, vice president of the Marine Bank, to make this statement.

Many of the creditors signed up, but not all, and a second meeting was called for April 12, 1927. In substance the same assurances were given to those attending the second meeting which had been given at the first meeting.

Prior to the time of the execution of the trust agreement and the conferences which were held between Pond and officers of the Marine Bank, there had been general knowledge of B. F. Marbold’s financial troubles, and it was known that the Marine Bank had the mortgage sued upon, and the first mortgage of $55,000. Creditors prior to the first meeting of March 31 had interviewed their attorneys with reference to instituting involuntary bankruptcy proceedings against B. F. Marbold. At the time of Pond’s conference with Holbrook about the preparation and execution of the trust agreement between Marbold and Pond, Pond told Holbrook that there was danger of immediate application for involuntary bankruptcy by creditors of B. F. Marbold and also of attachment proceedings. The possibility of bankruptcy proceedings against Marbold was discussed at the first meeting of creditors.

Between the first meeting with Holbrook and the meeting of the creditors on April 12, Pond had five or six conferences with different officers of the Marine Bank, who understood just what he was doing.

At the second meeting, which was held at the time specified in notices sent to the creditors, additional creditors signed the written agreement, but not all of them, and on April 15, five or six had not joined. Pond then took this agreement to Holbrook together with the signatures. He told Holbrook that it looked like he could not get all of the creditors to sign; that he knew of some, whose names he mentioned, who would not sign. He fully discussed the situation with reference to those who had signed, naming names and giving reasons for those who had not signed and exhibited frankly to Holbrook all that had been done prior thereto. Pond testified that he asked Holbrook what he should do in view of the facts and that Holbrook said, after studying quite awhile, “Gro ahead, there is nothing else to do.” Pond further testified that in substance Holbrook said that the bank will go along with you. In this meeting with Holbrook, Holbrook said nothing to Pond about abandoning the trust plan because he had not been able and would not be able to have all of the creditors sign the trust agreement. Holbrook’s version of this conversation was that he said the only thing for him to do was to do all he could to get the signatures in before the time limit was up.

Following this meeting with Holbrook, Pond conferred with Holbrook in regard to the preparation of deeds for the purpose of having conveyed Marbold’s lands, and about once a week or at least once every ten days throughout the summer of 1927 Pond conferred with Holbrook about the management of Marbold’s properties. He took up with him the matter of disposing of and selling large amounts of implements, cattle, horses and other chattels, and advised with him generally concerning the handling of Marbold’s property. He deposited money in and opened an account with the Marine Bank at the suggestion of Holbrook because of Holbrook’s statement that it was the largest interested creditor. These conferences in regard to the management and handling of Marbold’s property by the appellee Pond continued throughout the year 1927 and throughout 1928. Pond had repeated conversations with Holbrook as to moneys he was collecting from sales made by him and the expenses he was incurring and which were necessary; they discussed the place of deposit of said money and all this was subsequent to the conversation had between Holbrook and Pond when Pond informed Holbrook he would be unable to secure all of the signatures of the creditors, and when Holbrook told him to go ahead and that they would go along with him.

During the years 1927, 1928 and more than one-half' of 1929, the Marine Bank at no time, by word or manner, indicated that it was not abiding by and was one of the parties to the trust agreement. On the contrary, all of its acts, conferences and conduct were the acts and conduct and statements of one directly affected by the trust agreement and participating therein. In July or August, 1929, the first intimation was given by the Marine Bank to Pond that the bank intended to attempt to enforce its rights under the mortgage. More than two years and three months elapsed between the initiation of this creditors’ plan and the time when the Marine Bank first indicated that it expected to rely upon the mortgages in this case. Holbrook testifies that his conversation with Pond in which he intimated that the bank was not going along with the trust, occurred in November, 1928. Immediately upon the closing of the bank the auditor of public accounts, through his representative, Weber, took charge of it.

Before the first meeting of the creditors, as Pond testifies, although Holbrook places it after the second meeting of creditors on about April 15, 1927, Pond discussed with Holbrook "a bank balance of Frank Marbold’s with the Marbold State Bank of about $11,000 and $6,500 worth of C. I. P. S. Company stock, which had been taken charge of by the auditor of public accounts, and at the same time he also discussed with Holbrook the deed which had been made by Marbold to the Marbold State Bank for the bank building in Green-view. The trust deed was executed March 11,1927. The Marbold Bank had closed March 7, 1927, when the auditor of public accounts took possession. He claimed and took the deposit of B. F. Marbold and this C. I. P. S. Company stock. Whether the stock was up as collateral or not is not shown. These facts the Marine Bank knew before Pond entered the matter.

Appellant states that the Marbold Bank secured three preferences: first, a trust deed given to Harry Matthews for its benefit for $100,000. While such a trust deed was executed prior to the time of the execution of the trust agreement and the Marine Bank knew all about it, Matthews said he does not know the purpose of it and that no notes were ever received by him or by the G-reenview State Bank or the Marbold State Bank. At first he was not certain whether he ever saw the notes secured by this trust deed to him but thought that at one time the note was in the hands of Mr. Waldmire. Later, however, he said he was not sure whether he ever saw the note. At that time the indebtedness of Marbold to appellant bank was approximately $60,000 and no credit or record v?;as ever made on the books of the bank, either the Marbold State Bank or the Greenview State Bank, with reference to this $100,000 trust deed.

The second preference mentioned by appellant is that a deed was made by Marbold to the Greenview State Bank for the bank building and property at Greenview, and his account in that bank credited with $25,000. This deed was recorded in Menard county March 24, 1927, and was not produced in evidence. The entire situation with reference to the transfer of this property to the bank by Marbold was fully discussed with Holbrook, the vice president of appellant, and by Mr. Pond about April 15, 1927. It was also explained to the creditors at their first meeting and they were informed of the deed which had been made by Marbold to the Marbold State Bank. It was thoroughly discussed by the various creditors who believéd that it was the best thing to do under the circumstances.

Holbrook’s complaint was that it was a violation of the gentlemen’s agreement between the Marbold Bank and his bank. Pond told Holbrook that in his opinion it was advantageous to the creditors because Mrs. Marbold had released her dower interest in the building. In such discussions it was said that the allowance of credit of $25,000 by the Marbold Bank was advantageous to the other creditors because the building would not sell for more than $5,000 if the trustee had to sell it, and that Mrs. Marbold would have, in addition to that, her dower right. After Pond had told Holbrook his views ip this connection, which was a day or two before the first meeting of the creditors, he at first was disgruntled. Nevertheless, he then told Pond to go ahead and he would go along with him, saying that he did not believe that the Mar-bold Bank had treated the Marine Bank fairly.

The third point of preference was the appropriation of the bank balance of some $11,000 and the C. I. P. S. Company stock by the auditor of public accounts.

On April 23, 1927, as soon as the deeds to the- property of Marbold and the bills of sale for his personal property had been executed, and after the Marine Bank had been fully advised that all of the creditors of Marbold had not and would not sign the prepared trust arrangement, the appellee Pond, purporting to act as such trustee for the benefit of all of the creditors of Marbold, took possession of his properties and has been in possession, making leases, harvesting and marketing crops, selling implements and machinery, fertilizing the soil and selling horses and cattle belonging to B. F. Marbold. In all respects since that date until the present time he has dealt with these properties upon the theory that he was the trustee for the benefit of all of the creditors, upon a pro rata basis, excepting those creditors other than the Marine Bank and the Marbold State Bank, who held mortgages executed before March 7, 1927, upon the properties.

The total indebtedness of Marbold amounted to about $444,000. There were from 65 to 70 creditors. Not counting appellant’s indebtedness, over 80 per cent of the indebtedness was represented in the trust. Of those not signing the trust agreement, outside of appellant, there were only five or six creditors of whom it appears without dispute, that one William Austin is not yet definitely known to be a creditor; another, Bert Chamberlain, preferred to look to the surety on his note rather than to the trust estate of Marbold, and another, McLaughlin, denied she was a creditor of Marbold but claimed to be a creditor of the bank. The testimony shows that not one of the nonsigning creditors have ever interfered in any way with the trust. One Edwin S. Waldmire of Petersburg was very active in suggesting and attempting to first organize the trust. He consulted among the creditors but found they would not agree to select him as trustee. It is charged that he was acting for the appellant bank. Waldmire solicited Pond to go to Springfield and talk the matter out with Holbrook, which Pond did. Wald-mire told Pond the bank (appellant) wanted to see him. „ Pond testifies that Holbrook at that meeting urged him very strongly to undertake the organization of the trust and gave him the incentive to go into it. At the various creditors’ meetings the subject of attempting to throw Marbold’s estate into bankruptcy was discussed and in view of appellant’s mortgages for $100,000 they were only restrained by Pond’s inducement to form the trust, and the pledge that appellant’s bank would abandon its mortgages and come in and share pro rata with the creditors, which Pond was authorized by Holbrook to give to the creditors.

The appellant bank knew of the four months’ provision of the bankruptcy law. It knew that the question of attempting to have B. F. Marbold declared a bankrupt was discussed among the creditors. It knew that because of the representations of Pond this discussion stopped and no efforts were made by the creditors to have B. F. Marbold declared a bankrupt. It authorized Pond to make those representations, which were that it would not rely upon the mortgage sued upon, nor the $55,000 companion first mortgage executed at the same time, and if continued in that attitude of assurance to the creditors and to Pond until after rights of the creditors to have those mortgages declared preferential payments and set aside under the bankrupt law had been lost to them. It continued in this attitude for nearly two years after the expiration of that time.

There was a hearing before the master, who reported the evidence without his conclusions, and a hearing before the court upon the proofs taken and the court dismissed the bill for want of equity and complainant has appealed.

It is not disputed in this case but that appellant urged the organization of the trust and agreed to become a part of it if all the creditors signed, and the same was done within a reasonable time — about 90 days. There is a conflict in the testimony as to whether or not the bank, appellant, did not agree to go along with the trust anyway when Pond notified Holbrook that there were a few creditors whose signatures could not be obtained. The number not signing is so insignificant and it is so doubtful whether there were any bona fide creditors who did not sign the trust agreement, that taken together with the acts and conduct of the parties, renders the proof preponderating very strongly in favor of appellees that the trust agreement was agreed to by all of the creditors of Marbold, as contemplated in the conversations between Pond and Holbrook, and we so find.

Appellant contends that preferences were shown, as herein set out, which invalidates the trust, if it is shown that appellant agreed to go into it. As to the $100,000 mortgage made by Marbold to Matthews, the proofs do not show how or for what purpose this mortgage was made. There is no testimony in this record tending to show that it was ever delivered to any person. The only disposition of it is indicated by the witness Harry J. Wernsing, president of the new, reorganized Greenview State Bank. He testifies: “I have not seen the notes but I am told they are in the State’s Auditor’s office. I could not tell you how long they have been there. I was told by Mr. Sorling that prior to that time they were in safekeeping at the Marine Bank (appellant). Mr. Sorling is trust officer of the Marine Bank. They were never in the possession of the Marine Bank.” Appellant has not seen fit to give the court the history of the connection of its trust department with these securities. As to the bank building and its conveyance to the newly organized bank in Greenview at a consideration of $25,000 allowed upon Marbold’s indebtedness to the bank, which was $60,000, it is nowhere shown in this record that this arrangement was a preference or other than a profit to the creditors. Under the trust agreement, Mrs. Marbold was entitled to one-fourth interest in this real estate as dower, and from this record it is impossible to determine that the transaction was not of financial profit to the creditors. As to the item of Marbold’s deposit in the old bank of $11,000 and the C. I. P. S. Company stock, as a part of the Marbold Bank, of course when the bank closed its doors there was no deposit belonging to Marbold and it all became a part of the bank’s assets and was taken in charge by the State auditor to secure the depositors. Nothing as to the settlement of the affairs of the Marbold State Bank and the reorganization of the Greenview State Bank has been brought into this record and we are unable to determine anything as to these transactions. It is sufficient to say that no preference is shown in this transaction and no preferences are shown in connection with this trust.

Appellant argues that this transaction constitutes a novation and the burden of proof is upon appellees, which must be clear and convincing. Novation is a mode of extinguishing one obligation by another. 20 R. C. L. 259, sec. 1, note 1. Parsons defines novation as a transaction whereby a debtor is discharged from his liability to his original creditor by contracting a new obligation in favor of a new creditor by order of his original creditor. 1 Parsons on Contracts, 5th ed., 217. No novation is disclosed by the evidence in this case and no contention is made by appellee that there was novation, for the following reasons: (1) The existing indebtedness of Marbold was not satisfied but still exists; (2) The creditor’s agreement was discussed by Marbold with the Marine Bank prior to and at the time of the execution of the notes executed at the bank’s suggestion; (3) The creditor’s agreement is merely the carrying out of the agreement between Marbold and the bank that such an arrangement should be made; (4) The bank did not release its debt, but for a valuable consideration merely agreed to waive the purported security given by the mortgage lien. But appellant insists its mortgage is a valid and subsisting lien because it never signed the trust agreement. Where one has been induced to act or to refrain from action by the course of conduct of another, so that he will be substantially injured if such other be allowed to repudiate such course of conduct, an estoppel arises. (Adam v. Columbian Nat. Life Ins. Co., 218 Ill. App. 54; Hawley v. Florsheim, 44 Ill. App. 320.)

The position of the creditors, .other than the Marine Bank, is materially changed and their recovery materially lessened through the failure to file involuntary bankruptcy proceedings against Marbold or through Marbold’s failure to voluntarily go into bankruptcy, in the event that the Marine Bank is permitted to foreclose its mortgage. So, in reliance upon the participation by the Marine Bank, upon a basis equally with them, their rights would be lost if the bank were j permitted to assert its lien under the mortgage and! under such circumstances, in view of the facts in this case, an estoppel will arise against the Marine Bank. (Powers v. Wells, 244 Ill. 558; DeProft v. Heydecker, 297 Ill. 541; Walls v. Ritter, 180 Ill. 616; Burke v. Grant, 116 Ill. 124; Ball v. Hooten, 85 Ill. 159; Colwell v. Brower, 75 Ill. 516; Kinnear v. Mackey, 85 Ill. 96.) Estoppel may arise from silence as well as from words.

(Oliver v. Ross, 289 Ill. 624; Lloyd v. Lee, 45 Ill. 277; Vail v. Northwestern Mut. Life Ins. Co., 192 Ill. 567.) One who has actively co-operated with others in a par- ¡ ticular manner, will not thereafter be heard to assert an inconsistent right. (Oliver v. Oliver, 179 Ill. 9.) A creditor who has full knowledge of the making of an assignment for the benefit of all creditors and acquiesces therein, is bound by the assignment and cannot attack it. (Scheltes v. Hunter, 195 Ill. App. 213; Imperial Woolen Co. v. Longbottom, 143 Fed. 483; 5 C, J., 1065, sec. 41; sec. 42, par. 4.)

In Oliver v. Oliver, supra, the court held: “Even if the decree was erroneous appellant could not be heard to complain, inasmuch as it was an error that he asked the court to commit. In his answer and intervening petition he alleged it was a trust estate or fund in the hands of the court, and could not be divided by bill for partition. When this view so urged upon the court was adopted and the sale ordered appellant changed his position, and now assigns for error here that the court did not proceed in accordance with the Partition Act. This he cannot be permitted to do. Smith v. Kimball, 128 Ill. 583; Cronk v. Trumble, 66 id. 428.” In Oliver v. Ross, supra, it was held: “The party who challenges the title of his adversary to real property must be diligent in discovering that which will avoid the title and render it invalid and diligent in his application for relief. Unreasonable delay in explaining by equitable circumstances has always been declared evidence of acquiescence and will bar relief. (Howe v. South Park Com’rs, 119 Ill. 101.) While the chancellor erred in holding that this deed was a forgery, yet he did not err in holding that Flora Oliver was estopped from asserting her rights in this land.”

In DeProft v. Heydecker, supra, the court held: “It is only when the delay is accompanied by some act done or permitted, some change of relations or conditions, or some other element rendering it inequitable to permit the owner to assert his title, that laches will bar his right within the statutory period. Compton v. Johnson, 240 Ill. 621; Hutson, v. Wood, 263 id. 376; Lynn v. Worthington, 266 id. 414; Stowell v. Lynch, 269 id. 437.” In Corpus Juris, supra, vol. 5, page 1065, it is held: “It seems that any act, conduct, or declaration on the part of a creditor, indicating that he has consented to the assignment made for his benefit, 'will constitute a sufficient acceptance. (Beach v. Bestor, 45 Ill. 341); and it has been "repeatedly held that it is not necessary that he should sign the instrument of assignment, or that his consent should appear upon the face of the assignment.”

By appellant’s conduct and express agreements, the creditors of Marbold were prevented from presenting to a bankruptcy court the issue of the preference of appellant’s mortgage and at a time when appellant believed Marbold was insolvent, about which there can be no question.

For- the reasons stated, the decree of the circuit court is affirmed.

Affirmed.

Upon Petition for Rehearing

It is not a novation because no new obligation was made, but all creditors agreed to be satisfied with the application of the debtors * estate to their present claims. Potter v. Fitchburg Steam Engine Co., 110 Ill. App. 430, is cited, but in that case numerous bondholders under the mortgage were not notified and had no knowledge of the transaction. It is objected that Pond’s trust deed, made March 27, 1927, of the debtors’ estate, is made subject to appellant’s mortgage of March 9, 1927, both of the instruments having been executed after the bank failed and Marbold became insolvent. The mortgages were not made to appellant, but were made to one Bernard for no consideration. There had been negotiations with Bernard about a loan. It was not completed when Marbold failed. Appellant made use of the same instruments in an attempt to secure its own debt after it was known that Marbold was insolvent. Appellant’s attorneys drew Pond’s trust deed for him on March 27 following, in the attempt to form the trust and at its inception it was discussed that the mortgages might become a deterrent to Marbold’s bankruptcy. Appellant now seeks to argue upon some facts presented that Mar-bold and his estate were not subject to the bankruptcy court. Those facts and that question are not before this court at this time. The record shows that many of the creditors feared Marbold or some of his creditors would press bankruptcy in the spring of 1927.

There were some contradictions between Pond and Holbrook as to just what took place between them, but nothing, in our view of this case, that would furnish a ground for rehearing or affect the merits of the case. Accordingly, the opinion is modified and petition for rehearing denied.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Flora D. Mosby, Appellee, v. Clarence M. Kimball, Trading as Kimball Auto Sales, Appellant.
    Opinion filed January 19, 1931.
    Wham & Wham, for appellant.
    June C. Smith, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Flora D. Mosby, appellee and plaintiff in this suit, recovered a judgment in the circuit court of Marion county against appellant for the sum of $3,500, in an action of trespass on the case for damages received in consequence of a collision between an automobile in which she was' riding and a Dodge truck owned by appellant,' and alleged to have been controlled and operated by his agent or servant.

Appellant was engaged in the sale of new and used automobiles at Centralia. He had in his employ as a salesman one George D. Ryerson. On January 6,1930, Mrs. Sarah Cleveland operated a grocery store in an outlying part of the city and called appellant on the telephone to make inquiry about a truck appellant had advertised for sale. In response.to the call and about 3 o’clock in the afternoon of that same day, Eyerson drove the truck to the Cleveland store for Mrs. Cleveland’s inspection. Eyerson suggested that he demonstrate thé truck, but it was rainy and Mrs. Cleveland did not care to go out herself, so she called her brother-in-law, Charles Adams, who lived next door. Adams drove away in the truck with Eyerson and they were gone for a short while, during which time Adams was taught to operate the truck. After their return Mrs. Cleveland again inspected the truck, but was not ready to purchase. Eyerson suggested leaving the truck over night for her to try out. Adams testifies that Eyerson also told him he wished to leave the truck over night for “us boys” to try out, which is denied by Eyerson. Just then Glenn Minor, a delivery boy, employed by Mrs. Cleveland, arrived. While Mrs. Cleveland and Eyerson were still discussing the truck Adams and Minor took the truck and started to drive away and Eyerson immediately left on foot. After driving the truck a short time Adams and Minor overtook Eyerson walking back to his hotel and they picked him up and took him as far as the hotel. Adams and Minor testify that during this trip Eyerson told them to “try her out” and he would come back the next morning. After leaving Eyerson, Adams drove the truck to Salem, Illinois, a distance of about 16 miles, called at his brother’s home there, picked him up and took him to the C. & E. I. depot in Salem, where they stopped a few minutes and then returned the brother to Ms home. Adams then drove to the bake shop of one A. H. Garbe in Salem and stayed about 10 minutes. Garbe was an old friend of Adams and testified that during the course of their conversation Adams asked him if he would sell his bake oven, which was denied by Adams. They then started back to Centralia and at a point on the highway about a mile east of Sandoval, they ran out of gas, and stopped the truck on the hard road slab, because the weather was rainy and the shoulder adjoining the cement slab was muddy. After stopping they discovered, for the first time, that the tail light of the truck was not burning. Minor was sent to a gasoline station for gas and Adams posted himself about 10 feet in the rear of the truck to protect it from passing automobiles. Shortly after, appellee and her husband approached from the east and collided with the rear of the truck. The collision occurred between 5 and 6 o ’clock in the evening and after it had become quite dark. Mr. Mosby was driving his car and testifies he could not stop his car before the collision. In the accident Mrs. Mosby received the injuries for which this suit is brought.

While there are some disputed facts in the testimony, the serious question in the case is the one, of liability. Appellant contends, with a good deal of force, that the evidence fails to prove that the person or persons in control of the motor truck, at the time of the collision, were agents or servants of the appellant. The Illinois cases cited in support of this contention are all cases where the driver was using the car on an independent mission of his own and not in the furtherance of the master’s business. In the case of Flaherty v. Helfont, 123 Me. 134, urged by counsel as presenting an identical situation, the prospective purchaser had taken the truck for a two-day trial and the accident occurred while the truck was being driven back to a garage for mechanical inspection by an employee of the garage and not by the prospective purchaser. While Byers on denies the statements we believe the testimony fairly shows that he did instruct and request Adams to try out the truck, believing it would further the chance of selling to Mrs. Cleveland. While Adams’ relation to appellant does seem somewhat remote and the question is not without doubt, we are inclined to apply the rule of law in this case that Eyerson, as the agent of appellant, conceived the idea that to leave the truck with Mrs. Cleveland over night and to let Adams try it out was a good way to demonstrate the quality of the car. It was an act performed in furtherance of his employment and therefore the acts of Adams became the acts of Eyerson and appellant was responsible for the negligent acts of Eyerson. Katz v. Wolff & Reinheimer, 221 N. Y. S. 476, 54 A. L. R. 852.

The appellant further urges that the evidence does not disclose a breach of any duty set forth in each count of the declaration, i. e., the failure to display one lighted lamp, so situated as to throw a red light visible in the reverse direction, during the period from one hour after sunset to sunrise. We believe it is a fair inference from the testimony in this case that the proof supports the declaration in this respect. We do not regard the defense of imputed negligence raised by appellant as serious in this case, and the disposal of this question and the main question in the case obviates any discussion of the instructions offered by appellant and refused by the court.

No reversible error having been committed in the trial court, the judgment is affirmed.

. Affirmed.


author: Mr. Presiding Justice Barry

text:
    Zenobia Burns, Appellee, v. O. K. Kaylor, Appellant.

      Opinion filed February 1, 1932.
    Whitnel & Browning and J. R. McMurdo, for appellant.
    Philip Gr. Listeman and Harold J. Bandy, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee sued to recover $3,000 for damages alleged to have been caused by malpractice. At the trial appellee asked leave to amend her declaration by increasing the ad damnum to $25,000. Appellant objected to the granting of leave hut the objection was overruled. The amendment was never actually made. The trial resulted in a. verdict for $10,000. Appellant, in his motion for a hew trial, called attention to the fact that the verdict was larger than the amount claimed in the declaration. The motion also presented other grounds for a new trial. The' motion was overruled and the court rendered judgment for $10,000.

One of the errors assigned is that the verdict and judgment are larger than the amount of the damages claimed in the declaration. Appellee was entitled to amend her declaration by increasing the ad damnum at any time before the entry of judgment. Tomlinson v. Earnshaw, 112 Ill. 311. When her attention was called to the matter by the motion for a new trial she should have amended her declaration in accordance with the leave previously granted. She failed to do so.

Leave to amend a pleading, ordinarily, cannot be treated as an amendment where the amendment is not, in fact, made. Wisconsin Cent. R. Co. v. Wieczorek, 151 Ill. 579; Sinsheimer v. Skinner Mfg. Co., 165 Ill. 116; Condon v. Schoenfeld, 214 Ill. 226. It is reversible error to enter a judgment for a greater sum than the plaintiff claims in his declaration. Jones v. Lloyd, Serrill & Oakford, 1 Breese (Ill.) 225; Kelley v. Third Nat. Bank of Chicago, 64 Ill. 541; Foreman v. Sawyer, 73 Ill. 484. There are many other cases to the same effect.

Appellee contends that where a motion to amend has been granted, but no amendment has been made, the granting of leave will be treated, on appeal, as if the amendment were actually made and she cites Hinchliffe v. Wenig Teaming Co., 274 Ill. 417; Bildhauer v. Slovenska Narodna Podporna Jednota, 234 Ill. App. 350; Boynton v. Alwart, 137 Ill. App. 227. In the Hinchliffe case, supra, leave was granted to amend the declaration by changing it from tort to assumpsit and the amendment was presented but was never actually filed. After leave was granted to amend, the defendant filed the general issue in assumpsit and the trial proceeded as if the amendment had been actually filed. For that reason the court held that the failure to file the amendment should not cause a reversal of the judgment. The court distinguished that case from Wisconsin Cent. R. Co. v. Wieczorek, supra, but did not criticise or overrule the latter case. In the Bildhauer case, supra, leave was granted to amend the declaration and the defendant pleaded as if the amendment had been made, although it had not been. The Minchliffe case was followed. In the Boynton case, supra, the suit was simply discontinued as to one of the defendants.

In the case at bar appellant did nothing that would warrant us in holding that he had waived his right to make the objection now urged. He objected to the granting of leave to amend and upon his motion for a new trial he pointed out that the verdict was greater than the amount claimed in the declaration and he assigned error in this court on that point.

We are of the opinion that there jvas sufficient evidence to make negligence and contributory negligence questions of fact for the jury. As appellee recovered a verdict and judgment for a larger amount than she claimed in her declaration, the judgment must be reversed unless she files a remittitur of $7,000 with the clerk of this court within 15 days from the filing of this opinion. If the remittitur is filed the judgment will be affirmed for $3,000, in which case appellee will pay two-thirds of the costs in this court and appellant one-third of the costs. If no remittitur is filed the judgment will be reversed and the cause remanded.

Affirmed on filing remittitur of $7,000; otherwise reversed and remanded.


text:
    Elsie Clements et al., Appellees, v. Western Fire Insurance Company, Appellant.
    Opinion filed February 1, 1932.
    Felsen & Kane, Grebnsfelder & Grand and Glen Mohler, for appellant.

      Louis Beasley and Edward C. Zulley, for appellees^
   Mr. Presiding Justice Barry

delivered the opinion of the court.

■ Appellées sued on a fire insurance policy to recover for the loss of a garage building. The policy required that proof of loss be furnished within 60 days after the fire and that the amount of the loss was not payable until 60 days after such proof was furnished. A special plea averred that proof of loss was not furnished within the time required. Appellees replied that such proof was furnished within the time. There was a verdict and judgment for $1,637.50.

Appellees are husband and wife, but the husband was not a witness. Mrs. Clements testified the garage was destroyed by fire on May 25,1929; that a few days later a Mr. Humphreys gave her four sheets of paper containing an itemized statement of the loss; that two of the sheets were carbon copies of the other two; that about June 6, 1929, she and her husband gave the two original sheets and an affidavit to Mr. Suprunowski, who was in the office of Mr. Schiele, appellant’s local agent at East St. Louis; that the affidavit was signed and sworn to before a notary but she could not recall the date thereof or the name of the notary; that they made but one affidavit and at no time had more than two itemized statements of the loss. She retained the carbon copies of the two original sheets and produced them at the trial. Mr. Humphreys denied that he gave either of appellees any sheets of paper. He was not in the employ of appellant. Mr. Suprunowski was not an agent of appellant but solicited insurance for Mr. Schiele on a commissibn basis. He denied that the sheets and affidavit were delivered to him. Mr. Schiele said that he never received them. Both Suprunowski and Schiele testified that Mrs. Clements told them she had employed Mr. Leman to adjust the loss. She denied that she made the statement to Mr. Schiele but did not contradict Suprunowski.

Mrs. Clements testified that she did not know whether her husband had employed Mr. Leman to adjust the loss. When asked if she didn’t deliver the two sheets and affidavit to Mr. Leman to be filed with appellant, she replied: “I don’t remember.” She was then asked: “You think you might have done that?” and she answered: “No, I don’t.” Mr. Leman is a public insurance adjuster and has an office in St. Louis, Missouri, and was not in the employ of appellant. Paul Bierman is appellant’s adjuster and has an office in the same city.

Mr. Leman wrote Mr. Bierman on July 24, 1929, stating that he enclosed proof of loss under the policy sued on, but the letter was not placed in the mail until July 25, 1929, more than 60 days after the fire. The proof, of loss contained therein consisted of the two original sheets of which the two retained by Mrs. Clements are carbons, and an affidavit signed and sworn to by appellees before Harry F. Motz, a notary public, on July 20, 1929. Mrs. Clements testified that the signatures to the affidavit were the genuine signatures of appellees; that she did not know the notary and did not remember that he had anything to do with the matter; that her husband was not in East St. Louis on July 20, 1929, that he is in the federal prison at Leavenworth for stealing interstate freight. It was stipulated that the husband was not incarcerated until October 26, 1929. Counsel for appellees say that the proof of loss that was sent by Mr. Leman to Mr. Bier-man is the identical proof which Mrs. Clements claims she delivered to Suprunowski except that somebody changed the affidavit and attached one purporting to have been made before the notary, Motz. The affidavit shows no evidence of a change and Mrs. Clements testified that it bears the genuine signatures of appellees. It is evident that there was no change in the affidavit and that no other affidavit was attached.

The law is so settled that the certificate of a notary public showing that a deed was executed and acknowledged cannot be impeached by the testimony of the grantor, alone. Jaworski v. Sujewicz, 334 Ill. 19. It seems to us that this rule would also apply to an affidavit. An affidavit in due form cannot be impeached on the sole testimony of the affiant. When Mr. Bier-man received the proof of loss sent by Mr. Leman, he sent Mr. Clements and Mr. Leman notices through the mail to the effect that the proof was not satisfactory because it had not been furnished within 60 days after the fire. The notice to Mr. Clements was returned unopened, but the one to Mr. Leman never came back. The only reasonable conclusion to be drawn from the evidence is that one or both of appellees employed Mr. Leman to adjust the loss and to furnish appellant with proof of loss.

Under the evidence it is clear that proof of loss was not delivered to Suprunowski about June 6, 1929, or at any other time. The affidavit was not made until July 20, 1929, and there is no question but that the proof of loss which Mrs. Clements says she delivered to Suprunowski is the identical proof of loss which was sent to Bierman by Mr. Leman on July 25, 1929'. The testimony of a witness may be so absurd as not to be relied upon even though it is uncontradicted. Worcester Nat. Bank v. Cheeney, 87 Ill. 602. The testimony of Mrs. Clements as to the alleged delivery of proof of loss by her, in view of the undisputed evidence, cannot be said to be evidence fairly tending to prove the issue. The court erred in refusing to direct a verdict for appellant.

In our view of the case it is unnecessary to consider the other questions urged by appellant. Appellees insist that the judgment should be affirmed for want of a proper abstract. The question as to whether proof of loss was furnished within 60 days after the fire was properly preserved and shown in the abstract by the motions for a directed verdict, the court’s rulings thereon and the exceptions thereto. Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589. It is unnecessary to determine whether the abstract would be sufficient to present any other question. The judgment is reversed with a finding of facts.

Reversed with a finding of facts.

The clerk will insert in the judgment the following: “The court finds that the policy required appellees to furnish proof of loss within 60 days after the fire and the loss was not payable until that was done; that , proof of loss was not furnished within the time required.”


text:
    Art Craft Re-Roofing Company, Plaintiff in Error, v. William Williams, Defendant in Error.

      Opinion filed February 1, 1932.
    J. B. Harris, for plaintiff in error.
    Harry Faulkner, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The parties entered into a written contract by the terms of which plaintiff in error agreed to put a new roof on a building for defendant in error for the sum of $315 which included the taking off of the - old shingles. The old roof consisted of asphalt shingles and the new roof was of the same general character. The original estimate for the new roof was $390 and plaintiff in error expected to remove the old shingles and to realize therefrom the sum of $75 and the price was reduced accordingly. Plaintiff in error undertook to remove the old shingles but found that it could not be done without breaking practically all of them. Instead of taking the matter up with defendant in error, a new roof was placed upon the old roof and defendant in error refused to pay for the same. Suit was brought and the trial resulted in a verdict and judgment for defendant in error.

We are of the opinion that the removal of the old shingles was a substantial part of the contract. An intentional departure from a substantial provision of a building contract will bar a recovery regardless of the presence or absence of an intent to gain some advantage thereby. Smedley v. Walden, 246 Mass. 393, 141 N. E. 281. If plaintiff in error had fully performed the contract, it would be entitled to the contract price. If a substantial performance were shown it could only recover the contract price after deducting the sum required to remedy the omissions which, when remedied, would make performance complete.

Substantial performance is performance except as to unsubstantial omissions, with compensation therefor. When the omission is slight and unintentional, in order to prevent a hardship of a failure to recover even for that which was well done, compensation is substituted pro tanto for performance. The contractor cannot recover the entire contract price when defects or omissions appear; for he must show, not only that they were unsubstantial and unintentional, but also the amount needed to make them good, so that it can be deducted from the contract price, and a recovery had for the balance only. This is an essential part of substantial performance, and hence the proof should be furnished by the one who claims substantial performance. Where there are deviations of so essential a character that they cannot be remedied without partially reconstructing the building, they do not come within the rule of substantial performance. Spence v. Ham, 163 N. Y. 220, 51 L. R. A. 238.

A contractor suing to recover for substantial performance of his contract must furnish the evidence properly to measure the deductions necessary to remedy the defects and omissions. Atkinson v. Jackson Bros. (Tex. Com. App.), 270 S. W. 848, 38 A. L. R. 1377. In the case at bar there was an intentional departure from a substantial provision of the contract and that would bar a recovery. The old shingles could not be removed without removing the new shingles and there was no evidence as to what it would cost to make those removals and replace the new shingles. If the judgment can be said to be a hardship upon plaintiff in error it is quite evident that it brought it upon itself. Before laying the shingles on the old roof it should have taken the matter up with defendant in error and procured his consent. No reversible error having been pointed out, the judgment is affirmed.

Affirmed.


text:
    F. H. Simpson et al., Appellants, v. Sarah Shadwell et al., Appellees.

      Opinion filed February 1, 1932.
    Creighton & Thomas, for appellants.
    Smith & Smith and McGaughey & McGaughey, for certain appellees.
    H. D. McCollum, for certain other appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

In 1907, several persons entered into a written contract by which they formed a partnership under the name of the Bank of Flora for the purpose of conducting a banking business in the City of Flora. The contract provided for the issuance of stock certificates to the members, the selection of a board of directors, the election of a president and vice president and for the employment of a cashier, assistant cashiers, clerks, etc. A law was enacted which prohibited private banks after a certain time. On July 7,1919, the stockholders voted to cease doing a banking business and to sell the business and good-will to a bank then being organized as the Flora National Bank. On October 27, 1919, the directors sold and transferred the good-will and most all of the available assets to the Flora National Bank which paid for the same by assuming certain indebtedness of the partnership. The Bank of Flora then ceased to do business and its former cashier was appointed to liquidate the remaining assets. He proceeded with the liquidation until July or August, 1921, at which time F. H. Simpson, one of the appellants, demanded and took over the remaining assets and proceeded with the liquidation. In 1928, appellants filed a bill to settle the partnership and for an accounting. A decree for an accounting was entered and at a subsequent term the cause was heard in open court and the bill was dismissed for want of equity.

The answers denied most of the averments of the bill and relied upon the statute of limitations and laches. When the stockholders voted to quit business and to sell out to the Flora National Bank and the sale was completed on October 27, 1919, the Bank of Flora then ceased to do business and its former cashier was appointed to liquidate the remaining assets and liabilities. Under those circumstances there was a dissolution of the partnership by mutual consent of the partners.

When partners by resolution determine to cease doing business and wind up the same, and appoint one of their number to take charge of the property and ac-' counts, and to dispose of the property and collect their accounts, this will amount to a dissolution of the partnership. Bank of Montreal v. Page, 98 Ill. 109. The bill in this case was filed about nine years after the dissolution. That being true, the statute of limitations is a bar to the action. Quayle v. Guild, 91 Ill. 378; Bonney v. Stoughton, 122 Ill. 536.

The bill avers that at the time the Bank of Flora ceased to do business, its affairs and business were so involved, and the accounts thereof so intricate and complicated, that it was impossible at that time to determine the respective rights, obligations and liabilities of said bank to its creditors and the persons indebted to it, and the rights of the said stockholders therein as between themselves. Appellants did not undertake to show by their bill, or their evidence, the financial condition of the bank at the time it quit business or at any time thereafter. So far as the record shows it is just as impossible at this time to state an account as it was at the time the bank quit business and at the time the bill was filed. If the evidence in a proceeding for partnership accounting, in which a cross-bill has been filed, leaves the account in such doubt and uncertainty that a court is unable to say whether anything is due from either partner and how much, the only course open is to dismiss the bill for want of equity. Donaldson v. Donaldson, 237 Ill. 318; Fineman v. Goldberg, 329 Ill. 507.

The bank books were not offered in evidence. No auditor examined them and no statement was furnished showing the financial condition of the bank. The evidence offered by appellants simply showed that there were certain unpaid debts, most of which had been incurred by the liquidators subsequent to October 27, 1919. Two or three debts were shown to have existed prior to that time but the liquidators had given notes therefor which were renewed from time to time. "While the dissolution did not revoke the authority to liquidate, settle and pay debts already created, it operated as a revocation of all authority for making'new contracts, and since the giving of a promissory note is the making of a new contract, although it may be for a prior debt, a partner after dissolution cannot thus bind the firm. Bank of Montreal v. Page, 98 Ill. 109. The decree for an accounting was interlocutory and on final hearing the court had the power and authority to dismiss the bill for want of equity. Quayle v. Guild, 91 Ill. 378.

In the state of the record we cannot say that the court erred in dismissing the bill. The decree is affirmed.

Affirmed.


text:
    Louis Popp, Appellee, v. E. S. Barger, Appellant.
    Opinion filed February 1, 1932.
    Philip Gt. Listeman and Harold J. Bandy, for appellant; A. R. Miller, of counsel.
    Kramer, Campbell, Costello & Wiechert, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee, eight years old, recovered a verdict and judgment for $750 for minor injuries received in an automobile collision. He was riding in a car driven by his father. Appellant was driving east on St. Clair avenue, a continuation of Route 12, in East St. Louis. Appellee’s father was driving north on 25th street and entered upon St. Clair avenue without stopping. He says he saw appellant’s car when it was 75 feet from his car and that he paid no more attention to it as he thought appellant would stop; that he went on at 13 to 15. miles per hour looking straight ahead and didn’t again see appellant’s car until it struck his car at about center on the left side. On the south side of St. Clair avenue and west of 25th street, there is a sign “Stop, police orders.” There is no stop sign on 25th street south of St. Clair avenue. No claim is made that appellant was operating his car at a high rate of speed but it is argued that he was negligent because he didn’t stop before entering 25th street.

Appellee’s father knew that St. Clair avenue is a continuation of Route 12 and he must be presumed to know the law. He had no right to cross that avenue until he stopped and ascertained that the way was clear. Cahill’s St. ch. 95a, ft 34. His duty was plainly prescribed therein and the statute did not tell him that he need not stop at such an intersection if there was no stop sign erected. The failure of the department of public works and buildings to place a stop sign at that point did not relieve him from the observance of his statutory duty. It is apparent that if he had stopped before entering the intersection, the collision would not have occurred.

The same statute gave appellant the right of way and did not require him to stop before entering 25th street. So far as the record shows the stop sign on Route 12 just, west of 25th street was placed there without authority of law and appellant cannot be said to be guilty of negligence in failing to observe and obey it. It is unfortunate that the department of public works and buildings failed to place a stop sign on 25th street. Appellee was not injured by reason of any negligence on the part of appellant and the judgment is reversed with a finding of facts.

Reversed with a finding of facts.

The clerk will insert in the.judgment the following: “The court finds that there is no evidence tending to prove negligence on the part of appellant.”


author: Mb. Presiding Justice Barry

text:
    Mary C. Harney, Appellee, v. State Farm Mutual Automobile Insurance Company, Appellant.
    Opinion filed February 1, 1932.
    Fletcher B. Coleman and George B. White, for appellant.
    D. L. Duty, for appellee.
   Mb. Presiding Justice Barry

delivered the opinion of the court.

Appellee sued to recover for damages to her car alleged to have been caused by a collision with a quail. She carried insurance with appellant which insured her against accidental collision with any animal, vehicle, or the rolling stock of a public carrier. Appellant filed the general issue and the trial resulted in a verdict and judgment for $285.

Appellee testified that on August 20, 1930, she left her home in Marion and drove her car on the hard road to Harrisburg on her way to see a Mr. Brown who lived north of Carmi. Her father' was with her. She says that before they reached Harrisburg she noticed that her brakes were not working properly, but when she reached Harrisburg she did not have them examined. She says that when they were about a mile and a half south of Carmi she was driving at about 30 to 35 miles per hour when a quail flew from the left side of the road and hit the top of the radiator, or hood of her car; that she threw up her hands, put her foot on the brake and grabbed the steering wheel; that the brakes locked and she could not move the steering gear; that the car turned across the road, hitting the railings on the side of the road and when she came to the car was on the fence headed south. She had been driving north. On cross-examination she said she did not know whether the quail hit the car.

The accident occurred near the home of Mr. and Mrs. Adams. Appellee went to that home a very short time after the accident and talked to appellant’s agent over the phone. Mrs. Adams says that appellee said, while talking on the phone, that something went wrong with her brakes or steering gear, but she said nothing about a quail flying against the car. Mrs. Adams also testified that in talking with appellee a few minutes later, appellee told her that she guessed she was driving too fast and lost control of the car. Mr. Adams took appellee to her home in Marion on the day of the accident and while doing so he testified that appellee told him that one of three things might have happened: That her brakes might have locked, or something went wrong with the steering wheel, or she lost control of the car; that she said nothing about a quail striking the car. Mr. Kizner was driving south and came upon the scene of the accident. He testified that he asked appellee what caused the accident and she replied that she guessed the steering wheel or brakes locked, and that she said nothing about a quail coming in contact with her car. Mr. Weirauch, a maintenance patrolman on the hard road, came to the scene of the accident and talked with appellee. He testified that appellee told him she lost control of her car, set her brakes, and turned the car into the guard fence and that she said nothing about a quail flying against her car. Mr. Perry, appellant’s agent at Marion, testified that appellee told him the cause of the accident was the steering wheel or brakes; that her car did not collide with anything and that she said nothing about a quail having hit her car.

Appellee did not deny any of the conversations aforesaid except the statement of Mrs. Adams that appellee told her she was running too fast and lost control of the car, and that she did not tell Mr. Perry that she did not collide with anything. It clearly appears that the verdict is manifestly against the weight of the evidence and the court erred in overruling a motion for a new trial. The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Edwards

text:
    A. J. Smothers et al., Trustees of Pleasant Grove Methodist Episcopal Church of Williamson County, Illinois, Defendants in Error, v. Cosgrove-Meehan Coal Company of Illinois, Plaintiff in Error.

      Opinion filed February 1, 1932.
    William H. Warder and Hosea Y. Ferrell, for plaintiff in error.
    E. M. Spiller and D. L. Duty, for defendants in error.
   Mr. Justice Edwards

delivered the opinion of the court.

Defendants in error, hereafter referred to as plaintiffs, in 1929 were trustees of the Pleasant Grove Methodist Episcopal Church, in Williamson county. The church property consisted of about five acres of land, on which was situated a church building and a cemetery. The land was underlaid with coal. Plaintiff in error, hereafter designated as defendant, at the same time was the owner of a coal mine adjacent to the church premises, and in the course of its mining operations, entered the vein of coal beneath plaintiffs ’ property and mined therefrom a considerable quantity of coal. The trespass and taking of the coal are admitted, the only controverted question being the amount of damages thereby sustained.

Plaintiffs brought suit in trespass. The declaration consisted of six counts. The first charged a simple trespass by force and arms; other counts charged that defendant, through negligence, entered the coal vein of plaintiffs and took the coal; the remaining counts averred that the trespass was wilfully and wantonly committed. Issue was joined upon proper pleadings, and upon a trial a jury found defendant guilty and assessed, by general verdict, damages in the sum of $11,035.

Three special interrogatories were submitted to the jury: first, to determine the number of tons mined and taken away, which the jury found to be 7,701 tons; second, to ascertain the market value of the coal taken, when loaded upon railroad cars at the mouth of the pit, which was by the jury answered as being $1.97 per ton; third, the cost of loading such coal into the pit cars, conveying same to the shaft, and then hoisting and dumping same into the railroad cars; this the jury found to be 97 cents per ton. Motions for new trial, and to set aside the verdicts, both general and special, were made and overruled, and judgment entered for the amount of the general verdict, to review which this writ of. error was sued out.

It will be noted that, based upon the foregoing special findings, the compensatory damages were assessed at $7,701, and that the remainder of the general verdict, or $3,334.00, was awarded by way of punishment.

Defendant contends there was no proof to justify the special verdict, that 7,701 tons were taken, and urges that the proper amount was 6,404 tons. The evidence as to the larger amount is a written statement furnished to plaintiffs by a Mr. Woods, who, as representative of defendant, was negotiating with plaintiffs’ attorney with a view to adjusting the controversy, and which statement had been prepared by the chief engineer of defendant. Defendant objected to the introduction of such statement in evidence, on the ground that it was furnished during an effort to settle the dispute, and hence was privileged; also, that Woods had no authority to bind defendant, and that he had no personal knowledge of the matters set forth in the statement. The trial court admitted the statement, and the ruling is assigned as error.

The trespass and the taking of plaintiffs’ coal by defendant were not denied, but on the contrary were admitted, and the negotiations were entered into solely for the purpose of determining and settling the amount of damages. Where liability is disputed, the rule is elementary that ■ offers of compromise are not admissible. Where, • however, the liability is admitted, or is not denied, and the only question discussed is the amount to be paid, the rule of exclusion does not apply. 22 Corpus Juris, 313, citing numerous authorities.

• In Teasley v. Bradley, 110 Ga. 497, 35 S. E. 782, the Supreme Court of Georgia stated: “There is a distinction between an offer or proposition to compromise a, doubtful or disputed claim, and an offer to settle upon certain terms a claim that is unquestioned. An admission made in an offer of the latter character will be admissible.” To the same effect are: McKinzie v. Stretch, 53 Ill. App. 184; Hood v. Tyner, 3 Ind. App. 51, 28 N. E. 1033; Person v. Bowe, 79 Minn. 238, 82 N. W. 480; Finn v. New England Telephone & Telegraph Co., 101 Me. 279, 64 Atl. 490.

Here, both parties proceeded to negotiate for a compromise upon the basis of an admitted liability, and with a view only to adjusting the damages. The statement referred to was therefore not obnoxious to the general rule. Woods was the agent of defendant, authorized to negotiate for a settlement of the damages, and the offer made by him, through his written statement, was binding upon his principal. We are of opinion that the court’s ruling was correct.

It is further insisted that there was no evidence upon which the jury could base its second special finding, that the market value of the coal was $1.97 per ton. The proof is that during 1928, defendant’s mine sold, at the mouth of the pit, 458,000 tons of mine-run coal. Of this amount, 263 tons were sold to miners and others at a retail price of $2.50 per ton; the remainder, in cars at the mouth of the pit, on a mine-run basis, was worth $1,717 per ton. This was a large producing mine, selling in great quantities, and where such is the case, the market price of small amounts, sold at retail, is not the standard. The market value is the price when sold in large quantities. Wendnagel v. Houston, 155 Ill. App. 664, 667. We think the jury’s finding on this interrogatory should have been $1,717 per ton.

As to special finding number three, it seems to be conceded, and the authorities hold, that the amount of deduction from the value of the coal at the mouth of the pit, to which defendant is entitled, is the cost of loading and hauling to the foot of the shaft, and the hoisting and dumping it into the car at the top. McGuire v. Boyd Coal & Coke Co., 236 Ill. 69, 72.

Sidney Jenkins, manager of this particular mine, testified that the cost of loading coal into the pit cars was 71 cents per ton; transporting to the bottom of the shaft, 8 or 9 cents per ton; hoisting and dumping into the cars for shipment, 18.8 cents per ton, making a total of about 97 cents per ton. True, this witness subsequently stated that the total cost of such operations was $1,277 per ton, but such estimate was not itemized and we cannot know what he had in mind in making same. We are of opinion that the jury were warranted in their finding on the third special verdict. .

The proof shows that five per cent of the coal taken from this mine, at the time in question, was impure, and under the rule stated in McGuire v. Boyd Coal & Coke Co., supra, was a proper deduction on behalf of defendant.

The jury were warranted in finding the gross tonnage of coal taken, to be 7,701 tons, but should have deducted five per cent for impurities, leaving a net amount of 7,326 tons, and should have fixed the market price at $1,717, less the deduction of 97 cents per ton as found by them thus making the net price $.747' per ton. By computation of these figures, the plaintiffs were only entitled to recover, as compensatory damages, the sum of $5,471.52.

A substantial part of the verdict was for exemplary damages. The point is made that, under the proof, the jury were not warranted in making such award. Defendant contends, and plaintiffs admit, that the wilful and wanton counts of the declaration charge a crime, and that, where this is the case, the same must be proven beyond a reasonable doubt. This rule is well established. McInturff v. Insurance Co. of North America, 248 Ill. 92, 99.

Though the proof shows that defendant was guilty of negligence in operating under plaintiffs’ property, yet to justify an award for punitive damages,' it must appear that defendant acted wilfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Consolidated Coal Co. of St. Louis v. Haenni, 146 Ill. 614, 628.

Jenkins, the mine boss, testified that he believed the coal was the property of defendant, until informed to the contrary by William Mitchell, engineer for defendant, who ordered the work to stop. Homer White-side, another boss, stated he did not know to whom the coal belonged. Mitchell’s testimony is that if he knew the entries would go under plaintiffs’ premises, he went on in ignorance or without a thought of it. The testimony of certain miners was introduced to show that' Jenkins and Whiteside were asked whether the work was not under the church property, and that they either ignored the question or made evasive replies.

It may well be, as stated by Jenkins, that even though they had reason to know they were on plaintiffs ’ premises, they believed defendant was the owner of the coal, and that their conduct was devoid of evil intention, though unquestionably negligent.

Plaintiffs, under the wanton counts of the declaration, as the same charged a crime, assumed the burden of proving such beyond a reasonable doubt. McInturff v. Insurance Co. of North America, supra. This degree of proof has not been established, and the jury were not warranted in making an award for punitive damages.

If plaintiffs will file a remittitur, in the sum of $5,563.48, within 15 days, in the office of the clerk of this court, the judgment will be affirmed for the balance; otherwise reversed and remanded.

Affirmed upon remittitur; otherwise reversed and remanded.


text:
    Letah Scott, Appellee, v. John Vurdulas, Appellant.

      Opinion filed February 1, 1932.
    Virgil W. Mills and W. T. Bonham, for appellant.
    Creighton & Thomas, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Appellee brought suit in the circuit court of Wayne county against appellant to recover damages for injuries sustained through an automobile accident on the evening of July 3, 1930. Upon the trial there was a jury verdict for appellee in the sum of $1,300. Motion for a new trial was overruled, and judgment rendered on the verdict. Appellant by this appeal seeks a reversal of such judgment.

On the night in question, at about the hour of nine o’clock, appellee was riding in an auto, driven by her husband, upon a paved State highway in the City of Fairfield. At the intersection of .such highway with East Sixth street, the car in which appellee was riding collided with another car driven by appellant, as a result of which she sustained some severe injuries. It appears that this State highway, which runs in a generally easterly and westerly direction, curves slightly before it intersects East Sixth street, which extends north and south.

At the time appellant’s car was coming easterly along the State highway, and the car in which appellee was riding was traveling westerly upon said highway, at its intersection with East Sixth street, appellant, after giving a signal of his intention, turned to go north on East Sixth street, when the cars collided.

The testimony tends to show that appellant’s car, before it reached the intersection, was traveling about 15 miles per hour, and that the speed of the other car was estimated by the various witnesses as being from 15 to 35 miles per hour. The testimony on the part of appellee tended to show that her car had entered the intersection, and was about 15 or 20 feet from the car of appellant, when he started to make the turn. The evidence of Verdulas was to the effect that the Scott car, at the time he turned north, was some distance from the east side of the intersection. Both cars had their lights burning at the time, and the pavement was dry.

One of the principal questions in the case was in relation to which car had the right of way at the time of the accident. The court, at the instance of appellee, gave to the jury the following instruction:

“You are instructed that upon state paved roads having two traffic lanes, the person on the right-hand side of the center line óf said pavement has the right of way on that traffic lane. ’ ’

Appellee insists that this is in the language of the statute, and hence was a correct and proper instruction.

The section of the statute upon which it is based, Cahill’s St. ch. 121, 1f 161(2) (sec. 161-B,- ch. 121, Smith-Hurd Statutes, 1931), provides that upon such State paved roads having two traffic lanes, every person driving a vehicle shall, whenever practicable, keep to the right of the center line of the paved portion, and shall have the right of way on that traffic lane. It further requires that no such vehicle shall be stopped on such hard surfaced highway, or be allowed to stand in such position that there is not ample room for two vehicles to pass upon the road; nor that any person should unload his cargo or transfer it from one vehicle to another upon such highway, except in case of emergency.

This section does not attempt to define or prescribe the right of way at highway intersections. Its application is to other situations. The instruction, based thereon, had no proper place in the case, and should have been refused. Moreover, even if the purpose of the statute was to define the right of way at intersections, the authorities hold that the giving of such an instruction in the statutory language, without qualification as to circumstances, distance or speed, is error. Riddle v. Mansager, 254 Ill. App. 68, and cases cited.

Appellant asked the court to give the following instruction :

“The court instructs you that if you believe from the evidence in this case that the defendant, at and prior to the accident in question, acted as a reasonable and prudent man would have done and acted under the circumstances, and did nothing and omitted nothing which a reasonable and prudent man would have done or omitted under like circumstances, then the defendant is not guilty of negligence and you should find him not guilty.”

We think this instruction stated a correct principle of law, which was not embodied in any given instruction, and that the court erred in refusing same.

The testimony in the case was conflicting upon the essential elements of right of way and the negligence of appellant. It was therefore important that the jury be correctly instructed as to the law of the case bearing upon such questions.

For the errors in the giving and refusal of such instructions, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Elmer H. Squibb, Appellant, v. Alice Holstlaw Catching et al., Appellees.

      Opinion filed February 1, 1932.
    John L. Kagy, for appellant.
    Smith & Smith, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

On Thanksgiving day, November 29, 1917, Omar Squibb, a widower, and Mary Holstlaw, a spinster, were married. Both parties were then of the age of about 73 years, and each was well to do, owning both farm land and personal property.

Omar Squibb died on January 23, 1926, leaving as his only heirs at law, his son, Elmer H. Squibb, appellant, and Mary Holstlaw Squibb, his widow. On January 28, 1926, the widow and son entered into a written agreement, by the terms of which the widow agreed to receive, in personal property, the sum of $6,620, in full of all marital rights in his estate, and to convey to said son all interest in the real estate of her deceased husband. The estate, at the time of his death, amounted to about $27,000. This agreement was carried out according to its terms, and on April 30, 1930, Mary Holstlaw Squibb died intestate, leaving a considerable estate.

Appellant, a few months later, filed his bill of complaint alleging that Omar Squibb and Mary Holstlaw, before their wedding, entered into a verbal antenuptial settlement, in contemplation of the marriage, by which each waived all rights of inheritance in the estate of the other; that following the death of said Omar Squibb, his widow, in violation of said agreement, made claim to a share of his estate; that she falsely and fraudulently concealed from appellant the fact of such contract, and in consequence of same secured said personalty of the value of $6,620; that she took same impressed with a trust in favor of appellant, which trust continued against her heirs, and prayed that the court would by its decree impress the estate of Mary Holstlaw Squibb with such trust in favor of appellant, and order appellees, who are her heirs, and administrator, to pay same to him, together with interest from the time it came into her possession.

Appellees jointly answered the bill, denying that the antenuptial agreement was entered into, as alleged in the bill; denying that Mrs. Squibb fraudulently claimed any share in the estate of her deceased husband; that she fraudulently concealed from appellant any facts relative to such alleged agreement, or that she received any property from the estate of Omar Squibb, deceased, in violation of any such agreement; but averred that she took same as his surviving widow and heir under the statute of descent of the State, and in no other way. Hpon a hearing the chancellor decreed that the complainant had not proven the allegations of his bill, and dismissed same for want of equity.

It is manifest that if the agreement between Mary Holstlaw Squibb and Elmer Squibb, entered into on January 28, 1926, was executed voluntarily, and was free from any fraud, that it is a bar to the relief which appellant seeks in this suit.

Appellant contends that the widow was a party to a confidential relationship; that a duty devolved upon her to disclose all the facts to him, and that fraud was impressed upon any contract made between such parties.

Whether Mary Holstlaw Squibb stood in a confidential or fiduciary relation to Elmer H. Squibb depends upon the character of the alleged antenuptial agreement. If such agreement was entered into after Omar Squibb and Mary Holstlaw became engaged, their relation to such antenuptial settlement would be fiduciary in its character; if it was previous to the engagement, then it would not create any confidential relation. Martin v. Collison, 266 Ill. 172, 179; Mann v. Mann, 270 Ill. 83.

In this case the bill does not allege whether such engagement to marry was entered into before or after the making of such alleged antenuptial agreement; nor does the testimony show such fact. The only evidence on the subject, before the marriage, is the alleged statement of Mrs. Squibb that she and Omar Squibb were to be married that day, and that they had settled their-property rights. No mention was made as to whether they became engaged before or after making the marriage settlement, nor in any statements by either of the parties after their marriage did they say whether the engagement preceded or followed the antenuptial agreement; hence, under the rule announced in the cases cited, no confidential or fiduciary relation was proven between Omar Squibb and Mary Holstlaw Squibb in respect to such alleged antenuptial settlement. It therefore follows that no such relation was proven to have existed between the widow and the son.

Appellant alleges that he entered into the agreement, for the division of his father’s estate, in ignorance of the alleged antenuptial agreement, and that his stepmother fraudulently concealed from him information relative thereto. As no confidential relation was shown, it was incumbent upon him to prove his allegations of fraudulent concealment (Martin v. Collison, supra), and to prove such fact by clear and convincing evidence, such as leaves the mind well satisfied that such allegations are true. Council v. Bernard, 319 Ill. 392, 402.

From a careful consideration of all the testimony offered by appellant, we find no evidence of such concealment on the part of Mrs. Squibb. It appears, at the time of the agreement, she was a woman 81 years of age, possessed of ample private estate, of religious character, a strong supporter of and contributor to her church. In addition, it is shown, by the witnesses for appellant, that both prior to and after her marriage to Omar Squibb, she freely told of such marriage settlement, giving its essential features, and at times going into its details; that she talked same over with the tenants on her farm, with a lumberman, with her washerwoman, and with a strangse man who came to her home. Her character, as shown by the proof, and her declarations, all proven by the witnesses called by appellant, tend.to show that instead of desiring to conceal the fact of her antenuptial agreement, she was willing to discuss it with almost anyone who cared to listen.

Appellant, by his averments, assumed the burden of proving the fact of fraudulent concealment; he has not done so. There was a failure of proof that Mrs. Squibb concealed fraudulently from appellant the fact of her antenuptial agreement with his father, and the chancellor rightly held the allegations of the bill had not been proven.

The decree will be affirmed.

Decree affirmed.


text:
    Anthony Wiehardt, a Minor, by His Father and Next Friend, George Wiehardt, Appellee, v. Krey Packing Company, Appellant.
    Opinion filed February 1, 1932.
    M. R. Sullivan, for appellant."
    A. Austin Lewis and Harold J. Bandy, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Appellee, Anthony Wiehardt, a minor, by his father and next friend, sued in the city court of Granite city, in an action of case, to recover of appellant damages claimed to have resulted from eating diseased frankfurters purchased of one Hatscher, a retail dealer, who had been supplied with the meat by appellant. Plea of general issue was filed, the cause tried by jury; verdict, and judgment for appellee in the sum of $2,250, to review which judgment this appeal is prosecuted.

On May 17, 1930, appellee, a boy about 11 years of age, was living with his parents, and seven brothers and sisters, in Granite City. In the afternoon of that day his mother sent another son to the grocery and market of Frank Hatscher to purchase some supplies. This son bought certain groceries; also two pounds of sausage, of the kind known as frankfurters, paying for same 50 cents. Upon the return of this boy, the mother placed the frankfurters in hot water and boiled them until the casings on a portion of them burst, after which appellee, his mother and three brothers, ate of the sausage. Appellee and a brother, in the evening, attended a show. The brother testified neither of them ate anything while absent from home. Upon his return, appellee complained of stomach pains. He was ill the following day, and continued to grow worse until May 24, when a physician was called, who diagnosed the malady as trichinosis, a disease usually caused by eating raw pork which is infected with a parasite known as trichinae. Appellee was ill for several weeks. Another son was likewise afflicted- with stomach pains the same evening after having eaten the sausage,.but the other members of the family, who had partaken of it, do not appear to have been affected.

The mother testified that no other meat was served in the home on May 17, and that only bacon had been purchased during the preceding week, and that she did not know what kind of meat they had the following day, which was Sunday. Hatscher testified that the frankfurters in question (which came in a six-pound paper box), were purchased of appellant; that he sold the remainder of the contents of the carton, and that no one else complained of them.

Appellee, though in court, did not testify, and there is no evidence in the record as to whether he did or did not, before the supper hour of May 17, eat meat at any place other than his home.

It is appellant’s contention that the proof does not show that the meat eaten by Anthony Wiehardt was diseased, or that it caused his illness. The process of manufacture at the plant of the Krey Packing Company, during the month of May, 1930, was shown to be that frankfurters are composed of about one-fourth pork and three-fourths beef, chopped and mixed, stuffed into casings and linked; then put into a smokehouse for about an hour, where heat is applied to them from 140 to 175 degrees, after which they are removed and placed in a steam box, where .they remain for a period of about 15 minutes, during which time they are sprayed with hot water, the temperature of which runs from 160 to 175 degrees, and which raises the temperature of the meat inside the sausage link to about 150 degrees, without bursting the casing, the purpose being to destroy any trichinae germs which may be in the pork, and which, the undisputed proof shows, are killed by the application, for a few minutes, of heat of the temperature of 137 degrees, all the heat degrees referred to- being on the Fahrenheit scale.

At the steam box is a thermometer, with a three-inch dial, which can be read at a distance of 10 feet, and which registers the heat within the steam box, and in addition, a government inspector, before the meat is removed, generally makes a further test by inserting, in some of the pieces, an elongated, pencil-shaped and pointed thermometer, which penetrates the sausage link and discloses the temperature of the frankfurter ; furthermore, that the meat is not removed until it has reached the required heat standard of 137 degrees, after which it is subjected to a cooling process, and packed for market.

The testimony of the government inspector in charge during May, 1930, as well as the employees of appellant, shows that such practice was adhered to, and all such sausage remained in the steam box until every part had been heated to the degree which kills the trichinae parasite.

It is undisputed that the mother of appellee, before serving the frankfurters, boiled them in hot water, until some of the casings burst, and that water boils at 212 degrees Fahrenheit. As has been seen, the sausage, in its process of manufacture, was heated in the steam box until the inside of the link reached a temperature of 150 degrees, without causing the casings to burst. It is therefore evident that boiling in hot water, until the casings were broken, would heat the meat to a temperature much in excess of the 137 degrees, which, admittedly, destroys any trichinae germ in the pork content of the frankfurters.

Having averred the diseased state of the meat, at the time he ate of same, the appellee assumed the obligation of proving such fact by a preponderance of the evidence. The only proof in this record, bearing upon the condition of the frankfurters at the time they were eaten, tended to show that they had previously been subjected to such processes as would kill any trichinae parasites they might have contained. We do not think appellee has sustained the burden of proof upon this essential element.

The verdict, in our opinion, is contrary to the manifest weight of the evidence, and the trial court should have sustained appellant’s motion for a new trial. Belden v. Innis, 84 Ill. 78.

The judgment is reversed, and the cause remanded.

Reversed and remanded.