author: Mr. Presiding Justice O’Connor

text:
    Hannah Delee, Executrix of the Estate of Julia Hartnett, Deceased, Appellant, v. Edward D. Leahy and Catherine Leahy, Appellees.
    Gen. No. 37,629.
    Opinion filed December 24, 1934.
    William J. Gleason and ..Thomas M. Daly, both of Chicago, for appellant.
    Crahen, Sullivan, O ’Toole & Sullivan, of Chicago, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

November 29, 1933, plaintiff, as executrix of the payee of a promissory note, brought suit against the defendants, makers of the note. There was a trial before the court without a jury, and a finding and judgment in defendants ’ favor and plaintiff appeals.

The record discloses that on March 4, 1920, Julia Hartnett lent the defendants, Edward D. Leahy and Catherine Leahy, his wife, $1,500 and on that date they executed their principal promissory note for $1,500, due five years after date with interest at five per cent per annum. Julia Hartnett, the payee, died March 2, 1933, and her executrix is the plaintiff. The defendants filed an affidavit of merits in which they set up that on March 11, 1929, the payee, Julia Hartnett, orally agreed with the defendants “to cancel the note . . . upon the payment of Five Hundred Dollars, which said sum was then and there paid, the only further obligation upon the defendants being that they should pay her the sum of Seventy Five ($75) Dollars per year, the interest on said principal note, until the time of her death, and that the principal sum due under the note was entirely cancelled.”

On the trial the plaintiff offered the note and rested. The defendants called Maurice Leahy, a brother of defendant Edward D. Leahy. He testified that he knew Julia Hartnett from 1907 until she died; that on March 11, 1929, he was at defendants’ home; that at that time defendants Mr. and Mrs. Leahy and the payee of the note, Julia Hartnett, and himself were present; that there were no other persons present; that Julia Hartnett said “she needed some money. And she was there that night for the purpose of settling this note that we speak of here for $500 and an annuity of $75 a year after that.....For her lifetime”; that the defendant Edward D. Leahy then paid Julia Hartnett $500 in cash; that thereupon Julia Hartnett gaye . Edward D. Leahy a receipt signed by her, as follows: “March 11, 1929 .Received From Edward D. .Leahy Five Hundred Dollars Julia Hart-nett.” On cross-examination the witness testified that the note in suit, which is a printed blank form of note, was filled out by the witness in his handwriting and signed by the two defendants; that “I made up that note at the time that my brother got that money”; that he did not know whether his brother owed any other money to Julia Hartnett and that the $500 in question was paid on March 11, 1929, and applied to the payment of the note; that it was understood that the note would be delivered up and canceled. The witness further testified that he graduated in the law; that at the time of the execution of the receipt for $500 it was understood that the note would be delivered up and canceled; that Julia Hartnett was an old friend of his brother’s folks; “We had no idea she would forget about it. It was understood she would cancel the note and tear it up. ’ ’ The witness further testified that about 10 days before March 11, 1929, when the $500 was paid, he heard that the payee, Julia Hartnett, needed money; that “she had some bills to pay or something. She was going to buy a house or something. I don’t know. I haven’t the slightest idea. She needed the $500 anyhow”; that he was maybe a fourth or fifth cousin of Julia Hartnett. The witness was then asked: “Q. How did you happen to be there this evening? A. My brother told me ten days before she had made this suggestion. I went up there. Something you start you might as well finish. I went there in the same capacity, to be sure my brother was all right on the thing.” He further testified that no money was paid after the $500, no annual payment of $75 was made.

Hannah Delee, the executrix, testified in rebuttal and her testimony is to the effect that in 1915 or 1916 there was apparently another note for $500 signed by the defendants and given to Julia Hartnett, although the evidence in this respect is unsatisfactory.

The trial court held that the payment of the $500 together with the promise of payment of $75 a year during the lifetime of Julia Hartnett was sufficient consideration to pay the note, and we think this holding was correct; but we are of opinion that the evidence does not warrant the finding that any such agreement was made. The evidence on this phase is too uncertain and unsatisfactory, when taken in consideration with all the evidence in the case. Maurice Leahy, on whose testimony the ease was decided, testified that he was graduated in the law; that he drew the note in 1920; that in 1929, when it is claimed $500 was paid to Julia Hartnett, he was present, having learned some 10 days before that the meeting was to be held, so that he could see that his brother was protected; and yet there is not a word in the receipt that would indicate the $500 was to be applied on the $1,500 note, nor is there anything to indicate that the note was to be canceled or destroyed or returned to the makers; there is no reference whatever to such note. The note was produced on the trial. It bears no indorsement. It is admitted that $1,500 was lent by Julia Hartnett to the defendants in 1920, the time the note was made. It would have been a simple matter to have stated something in the receipt that would show that the $500 and the $75 annually was to be in full payment of the note; especially is this so when the witness was a graduate of the law and went to his brother’s home for the express purpose of seeing that the brother was taken care of in the settlement.

It has long been well settled that courts lend a very unwilling car to statements of witnesses as to what dead people have said. We had occasion to consider this question in Jamison v. Boxderfer, 268 Ill. App. 614, not reported,'where defendant was claiming a $7,500 mortgage as a gift from the deceased, and in passing on the question of the testimony of a witness as to what the deceased had said, we said: “It is also the law that courts lend a very unwilling car to statements of what dead men have said. Lea v. Polk County Copper Co., 62 U. S. 493. In that case the court said (p. 504): ‘In 1856, when these depositions were taken, John Davis was dead, and courts of justice lend a very unwilling ear to statements of what dead men have said. ’ And in 22 C. J., p. 291, in discussing the testimony of witnesses as to statements made by a deceased person, it is said that ‘it is impossible, in most cases, to convict the witness of perjury if his testimony is wilfully false, testimony as to the oral statements of deceased persons, which is therefore regarded as the weakest kind of evidence and subjected to the closest scrutiny. ’ And our own Supreme Court in the case of Laurence v. Laurence, 164 Ill. 367, in discussing this question said (p. 377): ‘Evidence of admissions made by a person since dead should be carefully scrutinized, and the circumstances under which they were alleged to have been made carefully considered with all the evidence in the case. Such evidence is liable to abuse. ’

We think the finding of the court to the effect that an oral agreement was made between Julia Hartnett and the defendants is against the manifest weight of the evidence, and the judgment of the municipal court of Chicago is reversed and the cause remanded.

Judgment reversed and cause remanded.

McSurely and Hatchett, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Katherine Adkins, Appellee, v. Strathmore Company and Carl Svoboda. Strathmore Company, Appellant.
    Gen. No. 37,640.
    Opinion filed December 24, 1934.
    Moses, Kennedy, Stein & Bachraoh, of Chicago, for appellant.
    John ft. McSweeney, of Chicago, fob appellee; Ben Copple, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendants to recover damages for personal injuries claimed to have been sustained by her in an automobile collision, as a result of the combined negligence of defendants. There was a trial before the court without a jury and a finding and judgment in plaintiff’s favor for $750 against both defendants. The defendant Strathmore Company alone appeals.

The record discloses that about 2:30 in the afternoon of November 22, 1932, plaintiff was riding in the rear seat of an automobile which was being driven northeasterly at about 25 miles an hour in the southerly lane of Ogden avenue in the southwest part of the city. Ogden avenue, which has four lanes of traffic, extends northeast, and at this point was well paved. A Chevrolet truck belonging to defendant Strathmore Company was a short distance behind the automobile, traveling in the same direction in the same lane at a speed of about 30 miles an hour. As it was overtaking the automobile in which plaintiff was riding it pulled out toward the left and into the second lane. At this time there was other traffic in each of the four lanes. Defendant Svoboda was driving southwesterly in the second lane from the northerly side of the street. There was an automobile ahead of this car, and in passing it Svoboda pulled his car to the left, south of the center line and into the lane of traffic in which the Chevrolet was approaching. The two cars collided and the Chevrolet was pushed or thrown to the south against the automobile in which plaintiff was a passenger, injuring her. The evidence is to the effect that Svoboda was traveling about 30 miles an hour.

All the evidence is that the Chevrolet truck was traveling in the second lane from the south (the proper one), and that it never crossed the center line of the pavement. And all the evidence also shows that the automobile driven by defendant Svoboda came into the lane in which the Chevrolet was traveling. The contention of plaintiff is that the negligence of the driver of the Chevrolet was that it was traveling too fast. We think this contention cannot be sustained. As stated, the evidence is to the effect that the Chevrolet was traveling about 30 miles an hour and was being driven in the proper traffic lane. We think the sole cause of plaintiff’s injury was that Svoboda drove his automobile across the center line of the pavement into the wrong lane of traffic. There being no negligence shown on the part of the driver of the Chevrolet, the judgment must be reversed. But the reversing of the judgment as to defendant Strathmore Company, a corporation, does not affect the judgment against defendant Svoboda. (Sec. 92, Civil Practice Act, ch. 110, ¶ 220, Cahill’s 1933 Statutes.)

The judgment of the superior court of Cook county as to defendant Strathmore Company, a corporation, is reversed.

Judgment reversed.

MoSurely and Hatchett, JJ., concur.


text:
    In re Estate of Wilhelm Hels, Deceased. Louisa Vocht, Sometimes Known as Louisa Voght, Appellant, v. Frank Rechenmacher et al., Appellees.
    Gen. No. 37,713.
    Opinion filed December 24, 1934.

      William A. Bogan, of Chicago, for appellant; William C. Burns and James A. Carlson, both of Chicago, of counsel.
    Max Murdock, of Chicago, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

It seems to be conceded that Anna Hels and Wilhelm Hels, husband and wife, died September 2nd or 3rd, 1922. More than 12 years thereafter, July 21, 1933, the probate court of Cook county entered an order finding that Anna Hels and Wilhelm Hels, husband and wife, died simultaneously September 2nd or 3rd, 1922; that Anna Hels was not an heir of Wilhelm Hels, her husband; that Wilhelm Hels left him surviving no wife or children or no adopted child or children ; that he left him surviving as his only heirs at law and next of kin 4 sisters, 3 brothers and 3 nieces, and that Anna Hels, the deceased wife, left her surviving 2 brothers, 3 sisters, 5 nephews and 5 nieces; that upon appeal to the circuit court of Cook county there was a hearing before the court without a jury and an order was entered finding* the heirs to be the same as those found by the probate court.

Louisa Vocht who was found to be a sister of Wilhelm Hels,, deceased, prosecutes this appeal. She sought to have it adjudicated that Anna Hels died before her husband, Wilhelm Hels, so that Wilhelm would be the heir of his deceased wife, and there being no heirs except those found by the court, she would probably receive an inheritance from the estate of Anna Hels, deceased.

The case went to trial in the circuit court May 3,

1934, more than 12 years after the death of Wilhelm and Anna Hels, and the evidence as to when they died or what caused their death is most meager, uncertain and unsatisfactory. Bnt the trial seems to have been on the theory that the parties came to their death by being asphyxiated in their home on or about September 2, 1922. The bodies of the two were discovered apparently in the basement of their, home at that time.

Elmer J. Decker, the undertaker who embalmed the bodies, called by Louisa Vocht (who will be referred to as plaintiff), testified that since February, 1933, he was employed as a salesman for the Dodge Chemical Company; that prior to that time he had been an embalmer since 1909; that he received his training at the Chicago Graduate College of Embalming; that shortly before noon on September 3, 1922, he and his assistant were called by an undertaker to embalm the bodies of Wilhelm and Anna Hels; that the weather was warm; that he went to the deceaseds’ residence Avith his assistant and went to the basement of the small house in which the parties had lived, and there saw the two bodies. They were both lying on their backs on the basement floor; that there was no odor of gas; that the bodies had been moved; that they took the bodies for the purpose of having the coroner’s physician make an examination; that Anna’s body was badly discolored and decomposition was progressing; ‘ she had already developed skin slip and tissue gas ’ ’; that the body of Wilhelm was discolored but not so much as Anna’s body; that there was “no tissue gas or skin slip”; that he had embalmed approximately 2,500 or 3,000 bodies, of which quite a number died by carbon monoxide gas; that in his opinion where skin slip Avas prevalent on the body the person had been dead longer than where this did not appear; that he was of opinion that Anna Hels died first; that in his opinion she died 4 or 5 hours before her husband died. On cross-examination he testified that he took a six months’ course at the Chicago College of Embalming before his graduation; that he did not study toxicology or make any study of the decomposition of bodies; that in his course he studied bacteriology, chemical and sanitary sciences, and disinfection; that he had no way of knowing how long it would take ‘ ‘ tissue gas or skin slip to develop”; that he was present “when Dr. G-oltra posted this body.”

Edward Trunk, called by plaintiff, testified that he was a police officer; that he was called to the residence of Wilhelm and Anna Hels September 3, 1922, and found two bodies lying in the basement of the home; that he did not examine the bodies other than to find that the.persons were both dead; that he found that Anna’s body was cold and stiff; that Wilhelm’s body was still warm and limber; that Serg’eant Berger “and a nephew of the deceased” were with him and that he found the bodies about 9 or 10 o’clock on the morning of September 3; that there was no odor of gas when he went to the basement of the building; the windows were not open; that he did not determine where the gas came from; that there was a,live dog in an unconscious condition on the floor; that the dog died a few days later.

Dr. William D. McNally, called by the other side, testified that he was a toxicologist, chemist, physician, Associate Professor of Medicine at the Rush Medical College doing experimental work in pathology and research in toxicology; that he was licensed to practice medicine in Illinois in 1920; that he had made a special study for 21 years of carbon monoxide poison —gas; had written articles on it for medical journals and textbooks; that he was a chemist from 1913 to 1929, and Chief Coroner’s Physician from 1925 to 1929; that he had examined many hundreds of bodies of persons who were asphyxiated by carbon monoxide. He then described the bodies 6f persons who died of carbon monoxide gas; that the body will have a pink discoloration; that he had never seen the body of a person who died from carbon monoxide having “skin slip” for the reason that carbon monoxide is a poison and acts as a bactericide causing preservation of the body. He then answered a hypothetical question purporting to cover the condition of the two bodies in question and said that in his opinion neither of the bodies should have “gas tissue”; that persons who die from carbon monoxide gas take 24 hours and possibly 36 before there would be any appreciable change in the bodies.

This is substantially all the evidence in the record. In Illinois the common law rule prevails that where two persons perish in a common disaster, there is no presumption of survival. Wall v. Pfanschmidt, 265 Ill. 180. In that case the court said (p. 182): “The law is that when two or more persons perish in a common disaster there is no presumption, under the common law, of survivorship; that if survivorship is claimed it must be proved. ’ ’ After a consideration of all the evidence in the record, keeping in mind the rule of law in this State, we are of opinion that the evidence is far too nebulous to warrant us in overruling the finding of the trial judge that Wilhelm and Anna died simultaneously.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Me Surely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    First National Bank of Mackinaw, Appellee, v. School District No. 64 of Cook County et al., Defendants. Appeal of American Seating Company, Appellant, et al.
    Gen. No. 37,625.
    Opinion filed December 24, 1934.

      Culver, McKeon & Miller, of Chicago, for appellant; James B. McKeon, of counsel.
    Edward Gr. Berglund, of Chicago, for cross appellants.
    Cummings & Wyman, of Chicago, for appellee; Austin L. Wyman, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

The First National Bank of Mackinaw, Illinois, on its own behalf and on behalf of other holders of certain building bonds of School District No. 64 of Cook county, filed a bill for an accounting and an injunction to restrain the School District, its president, secretary, and treasurer, from paying the face value of certain tax anticipation warrants issued by said School District and owned by the defendants, until the building bonds and accrued interest, owned by plaintiff, are paid in full.

A decree was entered in the superior court upon a stipulation of facts incorporated in the decree, which found the equities for the plaintiff and against the defendants. Defendants American Seating Company, American Terra Cotta Company and Andres Stone & Marble Company appeal.

The bill prayed that the tax anticipation warrants held by the defendants be declared invalid. The court denied this, holding that these warrants should not be declared invalid. Plaintiff, the appellee, argues for the reversal of this finding in the decree, and a considerable portion of the briefs filed here is devoted to arguments and citations touching this point. However, we shall not pass upon the questioned validity of these tax anticipation warrants for two reasons: (1) The ntitice of cross-appeal of plaintiff was not filed within the 10 days required by Rule 35 of the Supreme Court, adopted by this court in Rule 4. Moreover, no notice of cross-appeal was served upon the appellant American Seating Company, which appealed on its own behalf and not on behalf of any other defendant. (2) We are holding that the chancellor properly found that the amount due on the bonds held by plaintiff and others should be paid first, before any of the warrants should be paid. Neither the School District nor any of its officers are appealing, and plaintiff, who alone is raising the point, is not concerned with the validity of these warrants.

From the stipulation it appears that at various times School District No. 64 of Cook county, Illinois, duly issued its bonds for the purpose of constructing authorized schoolhouses in said district. These bonds were payable in instalments upon a schedule arranged so that they would be retired within 20 years, as required by the constitution of Illinois. (Art. 9, sec. 12.) They were to be paid out of an annual tax levied on the taxable property in the School District and the annual taxes levied were based upon the amount necessary to be raised to pay the annual instalments of the principal and interest due on these bonds.

The particular tax levy involved is for the year 1931. In that year there was due and payable to plaintiff, and others represented by it, on account of principal and interest on the building bond issue held by them, the aggregate sum of $41,001. All these bonds and interest coupons are primarily payable out of the building fund and the taxes collected for the building fund of said district.

If all the taxes for the year 1931 upon the assessed valuation of all taxable property in this School District were paid in full, the amount collected would be $60,651.45. It is stipulated that on January 20, 1934, only 49 per cent of the amount levied on account of the 1931 tax levy had been collected, or $29,719.21.

The defendant American Seating Company had furnished the District with school desks and received in payment tax anticipation warrants amounting to $5,158. The American Terra Cotta Company and the Andres Stone & Marble Company had received tax anticipation warrants in payment of materials sold, for $1,085.10 and $1,681.93 respectively. Other parties, not appearing in this court, also hold tax anticipation warrants. Altogether there are warrants issued against the 1931 taxes aggregating $46,221.77.

Article 9, section 12 of the Illinois constitution provides that any school district incurring any indebtedness, shall before, or at the time of doing so, “provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same.” In Pettibone v. West Chicago Park Com’rs, 215 Ill. 304, it was held that this provision is self executing and must be read into every subsequent law authorizing a municipality to incur indebtedness. The tax levy for 1931 was an attempt to follow this constitutional mandate and was for the levy of a tax “sufficient to pay” the instalments of principal and the interest falling due upon the bonds which the School District had issued.

In People v. Chicago & E. I. R. Co., 300 Ill. 258, it was held that school directors had no authority to levy taxes for the full amount authorized for a building fund in addition to the amount required to meet maturities of bonds and interest; that taxes could be levied only for such an amount as, added to the requirements for bonds and interest, would not exceed the statutory limits. This holding was, in effect, that where the entire tax collections' for any particular year were used in meeting bond and interest charges, where the maximum tax rate had been levied, there could be nothing left of the tax collections of that year for any other purpose. Gates v. Sweitzer, 347 Ill. 353, presented the question whether various items of taxes levied by the South Park Commissioners could be extended when all the interest and bond instalments due had been paid, which involved the question whether the commissioners had the right to borrow temporarily from idle funds for the benefit of a bond fund which would have sufficient income to repay the amount borrowed. The opinion, commenting upon section 12 of article 9 of the constitution, above quoted, said: “It will be observed that this provision of the constitution contemplates not only the levy of taxes sufficient to meet the interest and principal payment on bonds but likewise requires the collection of taxes in such amounts. This provision of the constitution is mandatory and sélf-executing.” The opinion further says that such liabilities accruing during the year for which the levy is made, frequently must, in order to preserve the credit of the municipality, be paid prior to the collection of the tax, and that the officers in charge of the levy must use sound business judgment that the credit of the municipality be not impaired. In People v. New York C. & St. L. R. Co., 323 Ill. 493, a high school district levied a tax for the purpose of paying interest on bonds, which interest had theretofore been paid with funds borrowed from the general school fund. This tax was sustained on the ground that the constitutional requirement for the collection of a tax sufficient to pay interest when due and to discharge the principal within twenty years continues while the debt exists. In Mathews v. City of Chicago, 342 Ill. 120, it was pointed out that the interest and bond obligations must be met and that the officials must use sound business discretion in preserving the credit of the municipality, and that it was lawful, where the obligations matured before the tax was collected, to use other idle funds to pay this interest and principal. In People v. Illinois Cent. R. Co., 337 Ill. 276, it was held that a bonded indebtedness incurred for building a schoolhouse must be paid out of the tax levied for building purposes, and this was followed in People v. Wabash Ry. Co., 338 Ill. 382.

In decisions in other jurisdictions the general principle is stated that where taxes are levied for the purpose of paying bonds and interest, the proceeds cannot be used for the purpose of paying other obligations. In Angola Brick & Tile Co. v. Millgrove School Township, 73 Ind. App. 557, it was held that a school township warrant given in payment of materials used in construction of a schoolhouse cannot be paid out of a fund created to retire bonds issued for the erection of the building. This decision is applicable to the instant case. Miller v. City of Milwaukee, 182 Wis. 549, held that money raised for a special municipal purpose could not be used for another purpose. To the same effect was the decision in City of Frankfort v. Fuss, 235 Ky. 143. In Chamberlain v. City of Tampa, 40 Fla. 74, it was held that the city had no power to divert any part of its funds intended for the payment of outstanding bonds and interest to other purposes, and in line with this is Perry v. Com’rs of Bladen, 183 N. C. 387.

Counsel for defendants properly argue that it is the policy of the State to maintain the schools and keep them open and for that reason passed the provision of the school law, ch. 122, sec. 117, Illinois Statutes (Cahill) 1933, ¶ 125, that would enable school districts, in an emergency and in years of depression, to obtain funds by anticipating revenues. There is no doubt that this is true, and under proper circumstances it is the duty of school officials to issue tax anticipation Avar rants. But it does not follow that the prior obligations of a school district and the constitutional mandate controlling them can be set aside by the device of issuing anticipation warrants. Such a proceeding Avould permit school officials to incur, annually, an indebtedness equal to the amount of taxes collected, and by diverting such taxes to the payment of anticipation warrants postpone indefinitely, even beyond the constitutional limitation, payment of the bonded indebtedness. Bearing in mind the constitutional provisions, ■which contemplate the payment of bonded indebtedness in annual instalments, it would seem to be self-evident that these obligations are paramount and must take priority over any other claims.

To the argument that relegating the tax anticipation warrants to an inferior position would cause great confusion and seriously impair the maintenance of the school system, it is sufficient to say that a still greater confusion would ensue if the bonds theretofore issued should be in default, with the possibility that they might never be paid due to continuous issuing of tax anticipation warrants for so-called emergency expenditures.

From what we have said it follows that a tax anticipation warrant cannot be considered merely as an assignment of so much of the tax when collected as is represented by the face amount of the warrant. Whether considered as an assignment of an interest in the tax levy or as a promise of the district to pay in the future, the warrants must be held subordinate to the claims of the bondholders.

We do not agree with the suggestion of counsel for defendants that plaintiff should have instituted mandamus proceedings to compel the school district to levy a tax to cover the bonds and interest coming due in 1931. As we have seen, taxes for this purpose have already been levied, so that mandamus proceedings would be- useless.

We hold that the decree of the chancellor with reference to the point above discussed was proper. The question of the validity of the tax anticipation warrants is not properly before us for determination.

For the reasons indicated we affirm the decree.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    The People of the State of Illinois ex rel. John A. Schoonover, Appellee, v. Walter W. McLaughlin and Horace I. Lepman, Appellants.
    Gen. No. 37,701.
    Opinion filed December 24, 1934.

      Otto ICerner, Attorney General, for appellants ; George C. McCarthy and Loins Salinger, Assistant Attorneys General, of counsel.
    Arthur L. Israel, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Petitioner instituted mandamus proceedings alleging that defendants failed to perform the duties of their offices; a general demurrer was filed to the petition, which was overruled; defendants elected to stand by their demurrer and judgment was entered awarding the writ in accordance with the prayer of the petition. Defendants appeal to this court.

The petitioner alleged that for the past 14 years he has been business manager of the egg inspector’s union, whose business is commonly known as “egg candling”; that defendant Walter W. McLaughlin was appointed Director of Agriculture of the State of Illinois and defendant Horace I. Lepman Superintendent of Foods and Dairies of the State of Illinois; that they are governed by the Civil Administrative Code of Illinois and must enforce the provisions of the Illinois Egg Law, Cahill’s St. ch. 56b, ¶ 68 et seq., and Cold Storage Act, Cahill’s St. ch. 56b, ¶ 119 et seq., and prosecute violations of said act.

The petition alleges that there has. been collected by inspectors in the Department of Agriculture during 1933, evidence of over 400 violations of the Illinois Egg Law, and the names and addresses of numerous alleged violators are set forth in detail; it charges on information and belief that there are many other violations of the Egg Law which have been found by the Department of Agriculture; that petitioner asked defendant Lepman to prosecute these violations in court and that Lepman stated that he would cause to be prosecuted those violations he desired so to do and no others.

The petition charges on information and belief that of over 100 violations reported less than 15 have been presented to the court for action, and that most of those so presented have not been tried in open court but a cash settlement was made at a private hearing in the office of Lepman whereby $10 or $13 was received by him and thereafter a suit was filed and a recommendation made to the court that a fine of $7 or $10 and costs be assessed; the petition sets forth a number of cases in the municipal court with the names of the parties and the amount of the fines.

The petition further alleges failure to obtain service on parties in three different suits; that eggs were being sold in Chicago without being candled; that petitioner is informed and believes that only a superficial investigation was made (although specific complaints of' violations were made by petitioner) and nothing was done to correct these violations; that many persons engaged in the business of selling eggs in Chicago are receiving them from producers and dealers outside Chicago and the State of Illinois and are not candling the same but distributing them in Chicago and are removing the candling certificates which are in the cases of eggs so received and placing fictitious candling certificates in lieu thereof; that petitioner has complained many times to defendants about this but they have refused to enforce the law covering such violations.

The petition further alleges that there were very large holdings of eggs in cold storage during the past year; that such eggs are marketed in Chicago and that petitioner has not found any retail place in Chicago which sells cold storage eggs marked as prescribed by law. Petitioner alleges that a special assistant attorney general has been assigned to the defendants to prepare and try cases arising from violations of law and that he is furnished with adequate help to prosecute such violations; petitioner charges on inf ormation and belief that most of the inspectors employed do not actually work one-half the time required by statute.

The petition further alleges that to defendant Lepman has been delegated by McLaughlin the duties of managing and supervising the employees, whose duties are to inspect establishments where food is stored, sold or offered for sale and report thereon, collecting samples of food, and that Lepman has been charged with the duty of prosecuting all violations, but that the defendants refuse to cause said violations of the Illinois Egg Law to be prosecuted and to cause inspection, investigation and prosecution of other violations of the Egg and Cold Storage Laws, and that by reason thereof many men in Chicago are out of gainful occupation as egg candlers, and egg consumers are being defrauded and cheated.

The prayer of the petition is to compel defendants “to do any and all acts required and necessary under the Civil Administrative Code of Illinois, the Illinois Egg Law and the Cold Storage Act that the violations found by and in the possession of the Department of Agriculture be and are caused to be prosecuted, that the inspectors and employees of the Department be made to work, investigate and report violations of the aforesaid laws.”

The writ of mandamus is never granted when the right of the petitioner is doubtful. It issues only where there is a clear legal right to be enforced or a duty which ought to be performed by the respondent. Courts may exercise a discretionary power in grant ing or refusing the writ. People v. Rose, 225 Ill. 496, and many other cases.

Courts will not undertake to control and regulate a general course of official conduct or enforce the performance of official duties generally. In People v. Dunne, 219 Ill. 346, mandamus was sought to compel the mayor of Chicago to enforce observance of the liquor laws. The court denied the writ, saying that “where the court is asked to require the defendant to adopt a course of official action, although it is a course required by the statute and imposed upon him by the law, it would be necessary for the court to supervise, generally, his official conduct, and to determine in very numerous instances whether he had persistently, and to the extent of his power and the force in his hands, carried out the mandate of the court and performed his official duty”; that issuing the writ required the court to pass judgment on the numerous instances of the violation of the law and to Avhat extent the respondent had endeavored to perform his duty Avith the facilities at his command; that the writ of mandamus would not lie for any such purpose, and, that for the court to assume the duty of the respondent “would be to depart from its proper sphere and assume governmental functions, which are outside of the jurisdiction of the courts and not within the remedy of mandamus.”

In the suit last mentioned it was sought to compel the mayor to enforce the laws governing 7,000 saloons in Chicago. In People v. Busse, 238 Ill. 593, it was sought to escape the large order involved in the Dunne case and mandamus was sought to compel the mayor of Chicago to enforce the Sunday closing law against one certain saloonkeeper. The court denied the writ, saying that even with reference to one, the courts Avould be required to exercise precisely the supervision over the mayor that was held in the Dunne case the courts would not be required to exercise. The opinion said: “Counsel for appellant confuse the functions of the executive and judicial departments of government. If their contention Avas to prevail, the mandate of the court would be substituted for the statute Avhich denounces misfeasance and malfeasance in office.”

The reasons stated in the opinions in these cases referred to are applicable to the instant case. The petition alleges over 400 violations of the State law. For the court to supervise and control the conduct of defendants with reference to these cases would be wholly impracticable. It would require an investigation and determination of the merits of each complaint and the expediency of prosecution.

Especially will the courts refuse to control official acts where the' legislature, in the statute under which they act, clothes the officials with a degree of discretion. Chap. 56b, par. 72, Illinois Statutes (Cahill) which is the statute relating to the handling and sale of eggs, provides that the Department of Agriculture shall enforce the provisions of this act, “and shall make suitable rules and regulations for the same and tolerances on account of weather, labor and transportation conditions for carrying out its provisions, and shall determine the conditions under which eggs previously candled shall be recandled for resale or sale-, in order to safeguard the purchaser against buying . . . eggs unfit for human food.” This language indicates that the Department is given a wide discretion in determining whether one violating the act should be punished or given an opportunity to rectify mistakes.'

Counsel for the petitioner cites High on Extraordinary Legal Remedies (3rd Ed.), sec. 33a, to the effect that mandamus will lie to compel a public officer to perform a duty imposed upon him. But the same author, in see. 34, notes that it is important to observe the distinction between those duties which are merely ministerial in their nature and those which involve. the exercise of some degree of official discretion and judgment upon the part óf the officers charged with their performance; that as regards this latter class the writ will not control or interfere with his action nor direct him to act in any specific manner.

Petitioner cites a large number of cases in which the writ has been awarded, but these cases nearly all relate to some ministerial duty of the respondent. For instance, People v. Watson, 276 Ill. App. 303, where the petitioner sought to have his pension paid. This payment was purely ministerial and could be ordered by writ of mandamus. The writ has been issued in certain other cases compelling officers to do some specific thing, like People v. Keating, 62 N. Y. App. Div. 348, 71 N. Y. S. 97, where a demand was made that the commissioner of highways remedy a certain illegal nuisance, which he refused to do. The writ has been awarded in other cases to compel action with reference to a certain definite thing, like closing a particular gambling house.

We do not see how the writ awarded in this case could be upheld, for the reason that the attorney general of the State of Illinois is alone empowered with the duty to prosecute for the State. The writ awarded in this case ordered the defendants, respectively, to “cause to be prepared for filing in courts of competent jurisdiction, all the violations of the Act” (relating to the sale of eggs and the act relating to cold storage) “in the possession of the Department of Agriculture ... of any defandant named therein for violation or violations of the same Act or Acts, making parties defendant in the alternative, both the wholesaler and retailer in these violations involving both, to cause such cases to be filed, summoning the defendants named therein, causing alias and pluries summons to be issued, if necessary to secure service on said defendants, and to proceed to try such cases.” Neither, of the defendants could, be charged with the duty of prosecuting for the violation of the statute. Moreover, the prosecution of these cases must meet with the approval of the attorney general, without which no prosecution could be commenced. In People v. Whealan, 356 Ill. 328, the court said: “Mandamus will not lie when an official act sought to be coerced depends upon the act or approval of a third person. (MacGregor v. Miller, 324 Ill. 113.)”

We are in accord with the statement by counsel for defendants, that the petition before ns is an attempt to transfer the functions of the Director of Agriculture and of the Superintendent of Foods and Dairies to the courts, and that for the court to assume the management of the affairs of these departments would be to assume functions which are outside the jurisdiction of this court.

For the reasons indicated, we hold that the demurrer should have been sustained and that the writ was improvidently issued. The judgment will therefore be reversed and the cause remanded with directions to sustain the demurrer and dismiss the petition as amended.

Reversed and remanded with directions.

O’Connor, P. J., and Hatchett, J., concur.


author: Mr. Justice MoSurely

text:
    The People of the State of Illinois, Defendant in Error, v. Al Johnson and Max Johnson, Plaintiffs in Error.
    Gen. No. 37,710.

      Opinion filed December 24, 1934.
    Prescott, Burroughs & Taylor, of Chicago, for plaintiffs in error; Patrick B. Prescott, Jr., of counsel.

      Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyparth and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Justice MoSurely

delivered the opinion of the court.

A1 Johnson and Max Johnson, defendants, were convicted of conspiracy to defraud the State of Illinois by making' false returns under the Motor Fuel Tax Law of the State, Cahill’s St. ch. 95a, ¶ 79 et seq., and failure to pay the full amount of taxes on gasoline sold by them. Sam Levin was also a defendant and found guilty, and the three were sentenced to the Illinois State Penitentiary and were each fined $3,000. A1 Johnson and Max Johnson have sued out this writ of error seeking a reversal. The finding was by a jury but the evidence upon which defendants were convicted is not preserved by a bill of exceptions.

Defendants assert in this court that their reindictment was 2% years after the date of the last overt act of the conspiracy charged; that the reindictment is for a different offense from the one charged in the previous indictment and therefore the statute of limitations (18 months) has expired and the plea of the statute should have been allowed and defendants discharged. On the other hand, the State asserts that the second indictment was for the same offense as was charged in the prior indictment and therefore the first indictment tolled the statute of limitations, pursuant to section 6 of Div. 4 of the Criminal Code, par. 657, ch. 38, Illinois Statutes (Cahill). This section reads: “When an indictment, information or suit is quashed, or the proceedings on the same are set aside, or reversed on writ of error, the time during the pendency of such indictment, information or suit, so quashed, set aside or reversed, shall' not be reckoned within the time limited by this Act, so as to bar any new indictment, information or suit for the same offense.”

Defendants were indicted for conspiracy at the September term, 1930; in November, 1930, this was stricken off the court docket with leave to reinstate; December, 1932, the cause was reinstated and set down for trial; January 17, 1933, on motion of the defendants, this indictment was quashed; defendants were reindicted, returnable to the March term, 1933, and in April the same year a motion was made to quash this indictment.

A case stricken from the docket with leave to reinstate is a pending case, and it has been held that five years from the time it is stricken from the docket is a reasonable time within which to reinstate such a cause. People v. Kidd, 357 Ill. 133; People v. Hill, 350 Ill. 129. An indictment, to toll the statute of limitations under section 6 of Div. 4 of the Criminal Code, need not be a valid indictment. People v. Buckner, 281 Ill. 340. As the first indictment was within the 18-month period of limitations and is not to be reckoned within the time limited by the statute of limitations so as to bar any new indictment for the same offense, the decisive question is whether the new indictment charged the same offense as that charged in the first indictment.

Defendants’ counsel point out many differences in the indictments which it is asserted charge different and separate offenses in the two indictments. They argue that in the first indictment it is charged that the conspiracy began August 1, 1929, and continued until September 15, 1930, while in the second indictment it is charged that the conspiracy ran from September 15, 1929, to September 15, 1930. The allegations as to the date of a conspiracy are not material except that it must be laid within the statutory period of limitations. People v. Paddock, 228 Ill. App. 403.

Defendants next say that in the first indictment it is charged that the Consumers Gas and Oil Company was a distributor of motor fuel and that defendants, being officers of said company, became and were distributors of motor fuel; that in the first indictment the corporation was not made a party defendant while it was made a defendant in the second indictment. It will be noted that it is the same corporation and defendants have the same names. The second indictment alleges that they are the same parties and in the absence of evidence heard on the trial we will presume that this allegation was proven. The corporation cannot act except through agents. Therefore it would be impossible for the defendant agents to act for the corporation in distributing motor fuel without themselves being distributors. Moreover, we must presume that on the trial it ivas proven that these agents knew of the conspiracy to defraud the State, in which case they would be guilty as accessories.

Furthermore, it was not necessary to indict all of the conspirators. The first section of the conspiracy section of the Criminal Code, par. 117, provides that two or more persons conspiring to commit any offense against the State of Illinois or to defraud the State are' liable to a penalty.

Defendants also say that the first indictment charged the three defendants with conspiracy to defraud the State by naming the Consumers Gas and Oil Company as defrauding the State by preventing the Department of Trade and Commerce from inspecting gasoline and collecting fees as provided by the statute, while the second indictment makes no mention of the Department of Trade and Commerce or such inspection. We .do not think it was necessary to allege the duties of the Department of Trade and Commerce under the statute. This department is required to inspect gasoline, and reports should be made by all persons handling gasoline through this department; the effort to keep it from knowing the amount of gasoline handled and the concealment thereof was a fraud upon the State. The Department of Trade and Commerce was merely the legal instrumentality for ascertaining and reporting the amount of gasoline handled and was merely the instrument of the State for this purpose. The object of the conspiracy was not to defraud this department, but was directed against the State.

Differences as to the particular acts done in pursuance of the conspiracy charged- in the respective indictments do not make the indictments charge different offenses. The gist of the crime charged was a conspiracy to commit an offense against the State of Illinois arid to defraud the State. The overt acts merely set out the method of carrying out this conspiracy. The State might charge one overt act and prove any number of acts done pursuant to the conspiracy. It therefore makes no difference that in the first indictment defendants were charged with failure to pay the full amount of taxes on one million gallons of gasoline while in the second indictment the amount was put at six million gallons. Whichever amount was shown by the proof would be sufficient to prove that the offense was the same. The amount involved Avas not material to the commitment of the crime.

Defendants ’ counsel are in error in arguing that the evidence required to support a conviction under the second indictment in a conspiracy case must be the same as that charged in the first indictment. We repeat the gist of the conspiracy charged is the illegal agreement, or the agreement to do an illegal act. When this has been proven any number of acts done in furtherance of the conspiracy may be shown.

Jester v. State, 14 Ark. 552, is cited by the defendants in support of the proposition that all or none of the parties charged Avith a conspiracy must be found guilty. But the opinion discloses that this was pursuant to a statute in respect to gaming which provided that the names of all the parties charged with gaming must be proved as set out in the indictment.

There is no support for the claim of defendants that as no verdict was rendered against the Consumers G-as and Oil Company, therefore the entire verdict was a nullity. In criminal cases each person indicted, although indicted jointly with others, may alone be found guilty.

We would be merely repeating what we have said above if we should note in detail other points of difference in the two indictments suggested by defendants’ counsel. They are all met by the general statement that both indictments charge a conspiracy to defraud the State, and any slight variations in the overt acts charged or the means used in pursuing this conspiracy are of no importance. We are inclined to recognize the rather caustic characterization by counsel for the State of defendants’ argument on this point, as “all sorts of verbal tumbling.”

The last point made by defendants challenges the summoning of more than 23 persons to serve upon the grand jury as contrary to the statute. The recent case of People v. Lieber, 357 Ill. 423, disposes of this point. It was there held that the provisions of the Juries Act, Cahill’s St. ch. 78, ¶ 1 et seq., and the Jury Commissioners Act, Cahill’s St. ch. 78, ¶ 26 et seq., as they relate to the manner of selection of grand juries are directory and not mandatory unless the substantial rights of the accused are injuriously affected by the methods pursued. There is no claim or evidence that this is the case here.

We see no reason to reverse the judgment of the criminal court, and it is affirmed.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    The People of the State of Illinois ex rel. William F. Collins et al., Appellees, v. Thomas D. Nash and Robert M. Sweitzer, Appellants.
    Gen. No. 37,733.
    Opinion filed December 24, 1934.
    Thomas J. Courtney, State’s Attorney, for appellants ; Hayden N. Bell, Jacob Shamberg, William P. Kearney, Gerald E. Hornidge and Brendan Q. O’Brien, Assistant State’s Attorneys, of counsel.
    Igoe & Flaherty, of Chicago, for appellees; William J. Flaherty and George H. Mason, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a mandamus proceeding in which respondents appeal from a judgment of the circuit court overruling their demurrer to the petition, by which they abided, and awarding a writ of mandamus to compel the treasurer of Cook county to countersign certain warrants and to deliver them to tlie county comptroller for delivery to the petitioners. The petition was based on an appropriation by the Board of Commissioners of Cook county for the fiscal year 1934, for amounts payable to the petitioners for salaries for services performed as highway deputy sheriffs during the period commencing July 1, 1933, and ending December 3, 1933, and for maintenance during said period.

. The petition alleged that under section 9, article 10 of- the constitution of Illinois it is the duty of the circuit court to determine the number of deputies aiid assistants of the officers of Cook county mentioned in said section 9, and that it is the duty of the Board of Commissioners of Cook county, when the number of said deputies and assistants have been determined, to fix their compensation; that pursuant to section 9, the circuit court on February 24, 1933, determined and allowed to the sheriff of Cook county a certain number of assistants and deputies for the period commencing the -first Monday of December, 1932, and ending on June 30, 1933, not to exceed 720 men days; that thereafter, on March 2, 1933, the county board adopted the annual appropriation bill for the fiscal year 1933, which included salaries for the number of highway deputy sheriffs designated as aforesaid by the circuit court.

After the adoption of the annual appropriation bill for the fiscal year 1933, the circuit court on May 19, 1933, entered a rule wherein the time of service of said highway deputy sheriffs was extended from June 30, 1933, to and including the first Sunday in December, 1933, and on June 9th the circuit court entered a rule amending the rule entered May 19, 1933, by striking out the 720 men days and inserting in lieu thereof 1,800" men days for the entire fiscal year commencing December 5, 1932, and-'ending the third day of December, 1933. ’•• • ■'

The petition alleged that thereafter ’the county board in 1933 refused to appropriate for said highway deputy sheriffs for the latter part of the fiscal year 1933, on the ground that subsection 6 of section 61, ch. 34, Illinois Statutes (Cahill) prohibited any additional or further appropriation after the adoption of the annual appropriation bill; that William D. Meyering, sheriff of Cook county, filed a petition for a writ of mandamus to compel the further appropriation but on appeal the Supreme Court of Illinois held that the writ should not issue on the ground that no provision for payment of compensation to said highway deputies for the last five months of the fiscal year 1933 was contained in the annual appropriation bill for, the fiscal year 1933. (People v. Whealan, 356 Ill. 402.)

That on February 5, 1934, the county board adopted the annual appropriation bill for the fiscal year 1934, which included among other things the sum of $94,042.05 for accrued and unpaid compensation for the last five months of the fiscal year 1933 for the highway deputy sheriffs, determined by the circuit court by rule entered May 19,1933, as amended June 9, 1933.

That on February 14, 1934, the county board ordered the payment of said sum under said appropriation.

That the county orders or warrants were duly appropriated and signed by the county comptroller of Cook county for the amounts due -the petitioners, respectively, and countersigned by the president of the county board, and were delivered to the county treasurer for his signature, which it was his duty under section 7, ch. 36 of the Revised Statutes (Cahill) to affix, and to return same to the comptroller for delivery to petitioners, and that said county treasurer refused so to do.

The question presented is whether the county board ■ in its appropriations made during the first quarter of the fiscal year of 1934 may include compensation for highway deputy sheriffs for their services for the last five months of the fiscal year 1933. The present case is a sequel to People v. Whealan, 356 Ill. 402. In that case it was sought to compel the county board to appropriate in the fiscal year of 1933, after the first quarter had expired, for the salaries of the deputy sheriffs for the five months remaining of the fiscal year 1933. The Supreme Court held that the county board had no authority to do so.

Both parties in the instant case cite and seem .to rely upon the opinion in the Whealan case, which among other things says:

“We are of the opinion that section 9 of article .10 of the constitution, which requires the circuit court to determine the number of deputies and assistants to county officers, is mandatory. Likewise, the requirement of the county board to determine their compensation is mandatory.”
“There is nothing in the constitutional provision granting the power of determining the number of. deputy sheriffs to prevent its exercise at- any time or times the court deems proper. ’ ’
“That court may, as we have said, adopt its rule at any time.”
“We do not doubt the authority of the circuit court to enter its rule of May 19, 1933, or of the sheriff to appoint deputies for the period authorized by the rule. ’ ’
“After a rule of court has been adopted fixing the number of deputies, the plain duty of the county board is to fix fair and reasonable compensation for them and to make an appropriation at the proper time for the full number provided by the rule. . . . ”
“It is the positive duty of the county board to fix the amount of compensation.”

From this language the conclusion ■ is inescapable that the appointment of the deputies for the latter part of 1933 was valid and that it was the positive duty of the county hoard “at the proper time’’ to fix the amount of compensation for the full number determined by the circuit court. The decision held, in effect, that an appropriation in the fiscal year of 1933 after the first quarter had passed was invalid. This is by reason of section 61(6) of the Counties Act, eh. 34 (Cahill), which provides that after the adoption of the appropriation bill the county board has no power to make any further or other appropriations prior to the passage of the next succeeding appropriation bill.

The latter part of this section forbids the county board to make any contract or do any act which shall add to the county expenditure or liabilities in any year, over and above the amount provided for in the annual appropriation bill for that fiscal year. The obligation to pay the deputies is not by reason of any contract made by the county board, but the liability arose through the combined action of the circuit court in entering the rule of May 19, 1933, and of the sheriff in employing deputies pursuant to that rule.

There would be hardly any doubt but that the opinion in the Whealan case sustained the authority of the county board to include in its appropriation for 1934 compensation for services rendered in the latter part of 1933 except for a sentence in the opinion which reads: “No resolution was adopted fixing any compensation at all for the last five months of the fiscal year, and the inhibition against the board’s expending county funds for any purpose not supported by an antecedent appropriation is an insurmountable obstacle in the way of the petitioner. ’ ’ Respondents argue that this means that as there was no appropriation made before the services were rendered petitioners cannot receive compensation. We do not so construe this language. It is true that if there was no antecedent appropriation by the county board petitioners could not maintain this action. But petitioners are not seeking county funds not supported by an antecedent appropriation. The expenditure sought to be coerced here is supported by the appropriation contained in the annual appropriation bill for the fiscal year 1934.

Moreover, we do not think the sentence last quoted Avas applicable to the question before that court. The question there was as to the power of the county board to make a further appropriation in the fiscal year 1933, after the first quarter of the fiscal year had expired. The mandamus sought in that case was for the sole purpose of compelling the board to fix the compensation and appropriate for that purpose. In this case the appropriation has been made. We think it is a clear inference from the opinion in the Whealan case that the only proper time to appropriate for the compensation in question would be at the next succeeding annual appropriation. Under section 9 of article 10 of the constitution it is the duty of the county board to appropriate at the proper time.

We do not think the decision in Hall v. County of Cook, 274 Ill. App. 503, is applicable to the instant case. There the validity was questioned of a contract made by the county board involving certain expenditures before any appropriation had been made for such expenditures. As we have heretofore said, the liability of the county board Avas not incurred by the county board. There is no question in the instant case of any contract made or liability incurred by the county board. The liability is imposed by the mandatory provisions of the constitution.

A very similar situation Avas presented in People v. Cermak, 239 Ill. App. 195. There the question was Aidiether the sheriff might appoint deputies to the number fixed by the circuit court at any time during the fiscal year for which they are allowed without reference to whether the county board had provided for their compensation. It was held that the sheriff might so appoint and may do so at any time during the fiscal year'for which they are allowed, whether before the board acts or after it fails to act, the opinion saying: “For if he (the sheriff) were compelled to defer their appointment until their compensation was fixed by the county board, . . . the wheels of government might stop in the interim for the want of an appropriation. Manifestly the mandatory provision of the constitution does not contemplate the possibility of such a situation. ’ ’,

If the duty of the circuit court and of the county board in the present circumstances is mandatory, and the appointment by the sheriff of the deputies is valid and the services have been rendered, we fail to see any reasonable or logical way for the county to avoid liability.

For the reasons indicated we hold that the writ of mandamus was properly awarded, and the order is affirmed.

Order affirmed.

O’Connor, P. J., and Matchett, J., concur.


text:
    Julius A. Goldberg, Appellee, v. Minerva Automobiles, Inc. et al., Appellant.
    Gen. No. 37,743.

      Opinion filed December 24, 1934.
    Rehearing denied January 7, 1935.
    Fisher, Boyden, Bell, Boyd & Marshall, of Chicago, for appellant; Thomas Hart Fisher, of counsel.
    Judah, Reichmann, Trumbull, Cox & Stern, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainant, having elected to rescind the sale for breach of warranty, filed a bill in equity to recover the consideration paid by him on account of the purchase price of a Minerva automobile and to foreclose his lien for the amount paid on the contract. Defendant Minerva Automobiles, Inc., filed a demurrer, which was overruled, and defendant answered; the matter was referred to a master in chancery who took evidence and made a report; an amendment was made to the bill and defendant again demurred, which was overruled; defendant stood on its demurrer and a decree was entered granting complainant the relief sought; defendant appeals.

The sole question presented is whether complainant had the right to invoke the aid of a court of equity. Defendant argues that complainant had an adequate remedy at law by proceeding under the statute whicíi gives the buyer the election, upon a breach of warranty, to rescind the sale and to recover the price paid. Ch. 121a, par. 72, Illinois Statutes (Cahill).

The bill of complaint alleges that complainant bought for $15,000 a Minerva chassis with a special body from defendants Ben D. Seltzer and Minerva Sales Company, with warranties against certain defects, the sellers agreeing to accept a Minerva car which complainant owned as part payment to the extent of $7,000 on the purchase price of the new car; that upon using the car the defects against which the sellers had warranted commenced to develop; that the sellers attempted to remedy the defects but failed. The bill also alleges that thereafter complainant received letters from the Minerva Automobiles, Inc., of New York City, claiming that its agent, Seltzer, who had sold the car to complainant, had no title to it and no authority to make the contract which he made, that the car was the property of Minerva Automobiles, Inc., and that it had been placed in the possession of Seltzer for exhibition and not with the right to sell.

The bill further alleged that complainant dealt with Seltzer in good faith, believing he had authority to sell; that Minerva Automobiles, Inc., was fully advised of the sale long before it was made and had ratified and approved the same.

The bill alleged that upon the failure of the defendants to remedy the defects warranted against, complainant rescinded the sale and tendered the automobile back to the sellers upon the condition of the return to complainant of that portion of the purchase price paid by him; that complainant has a lien under and by virtue of the statutes of Illinois regulating sales of personal property for the repayment of that portion of the purchase price paid by complainant, viz., the sum of $11,123.78; he asked for a lien for this amount together with his expenses in connection with the storage of the automobile; that a receiver be appointed and the automobile sold under the direction of the court to satisfy the lien, and that defendants be enjoined from interfering with the car or bringing any suits or proceedings to secure possession thereof.

After the hearings before the master the bill of complaint was amended, to conform with the master’s finding of facts, by alleging that whether or not Minerva Automobiles, Inc., constituted the defendants Seltzer and the Minerva Sales Company its agents, complainant had no knowledge that the car ivas the property of Minerva Automobiles, Inc., and only learned of its claim of ownership long after the sale was made; that the Minerva Automobiles, Inc., knew of the sale as soon as it was made and that by its conduct in failing to notify complainant of its claim and permitting complainant to deal with defendants Seltzer and Minerva Sales Company, complainant paid further sums of money to said defendants last named, and that the Minerva Automobiles, Inc., is es-topped in equity to claim that the car belongs to it and that its agents had no right to sell it.

The amendment further alleged that because Minerva Automobiles, Inc., claimed to own the car complainant could not safely proceed to sell it and could not assure anyone who might bid at the sale that he would acquire title, as the Minerva Automobiles, Inc., would notify intending purchasers that it was the owner of the car and that complainant had no right to sell it, and even if this company did not so notify intending purchasers complainant ivould be bound in equity and good conscience to notify intending purchasers that this company claimed to be the owner of the car, and that under the circumstances prospective purchasers would not bid; that there is no provision in the statute regulating the sale of personal property which would allow the complainant to bid at his own sale, and therefore the remedy proposed in the statute is, under the circumstances, wholly inadequate, and complainant has no remedy except in a court of equity.

The bill asked for the rescission of the contract, for the return of the amount paid by complainant, and that an equitable estoppel be enforced against the defendant Minerva Automobiles, Inc.

Respective counsel have in their briefs industriously gone into the question of equity jurisdiction over mortgages, pledges, and a bailee’s lien. The case of Knapp, Stout & Co. v. McCaffrey, 178 Ill. 107, which was affirmed in 177 U. S. 638, treats the subject with great thoroughness. In that case a bill was filed to establish and enforce a bailee’s lien upon a raft of lumber, part of which was in the possession of the complainant at the time the bill was filed. The court held that the complainant had a common law bailee’s lien, but the question presented was whether he might enforce that lien in a court of equity. The opinion recites that McCaffrey was holding the raft until his charges were paid by the bailor, the Schulenburg Company, but the Knapp Company claimed to have bought the raft from the Schulenberg Company; immediately after the alleged sale the Schulenburg Company made an assignment for the benefit of creditors and did not admit the sale from the Schulenberg Company to the Knapp Company but denied it in general terms. The opinion holds that McCaffrey had no adequate remedy at law for he could not in a suit at law determine with whom of the contending claimants of the raft he might safely deal; that both the Schulenburg Company and the Knapp Company denied that McCaffrey had a lien. The opinion says:

“Can a bailee in possession in such case have the aid of a court of equity, or must he be left.. . . to let his rights be taken away from him and then sue the tort feasor at law? McCaffrey’s position was in many respects similar to that of a pledgee or chattel mortgagee, and their right to foreclose their lien in equity is Avell established.” Particularly applicable to the facts in the instant case is the conclusion of the opinion, “that under all these circumstances it Avas proper for him (McCaffrey) to resort to a court of equity and bring all parties in interest before the court to have the questions of his possession and lien and the validity of the sale to the Knapp company, and the rights of the assignees, determined by a decree binding upon them all.”

In the case before us complainant has a buyer’s or bailee’s lien given by statute; he is in possession of the automobile; he is faced with the claim that his possession of the car was wrongful and his right to a lien is disputed; complainant cannot readily sell the car, by reason of the notice of the Minerva Automobiles, Inc., to the garage keeper not to permit anyone except itself to take the car, and complainant’s rights were threatened by the expressed intention of the company to send its representative for the car. The title to and right of possession of the car were in dispute. No one would have bid at a sale where complainant’s right and power to sell were questioned, and if there should be a purchaser he would be buying a law suit, as was threatened in a letter from the attorney for Minerva Automobiles, Inc. This is a foreign corporation, not doing business in Illinois, and it has been adjudicated a bankrupt. Under the Sales Act complainant has possession of the automobile as bailee for the seller, with a lien for the purchase price paid. Under these circumstances complainant is properly in a court of equity.

When the McCaffrey case went to the Supreme Court of the United States it was affirmed (177 U. S. 638), that court saying: “There were circumstances in this case which appealed with peculiar force to the discretion of a court of equity.” The opinion notes the contending claimants for the raft in question and their denial of McCaffrey’s lien. The opinion concludes: “Under such circumstances it was not only natural but just that he should have applied to a court of equity for relief in the enforcement of his common law remedy.” This is true of the instant case. West Chicago Park Com’rs v. Western Granite Co., 200 Ill. 527.

There is point to the suggestion that a Minerva automobile costing $15,000 is an unusual article and no purchaser would bid an adequate price unless assured that he would obtain a good title. Complainant was compelled by the circumstances to foreclose his lien in equity where the question of the authority of the agent to sell would be settled, and the sale conducted under the supervision of the court in such a way that a purchaser could and would acquire an indefeasible title, and where the interference by Minerva Automobiles, Inc., with complainant’s possession could be enjoined or prevented by the interposition of a receiver.

Both counsel have cited a large number of cases touching equity jurisdiction to enforce equitable liens, upon which we do not think it necessary to comment. Generally, an equitable lien is one which a court of chancery recognizes as distinct from strictly legal rights. There are decisions holding that where a statute confers an additional remedy at law in a situation over which equity has previously had jurisdiction, the two remedies continue concurrently unless the statute specifically provides that the legal remedy shall be exclusive and that the equitable remedy shall be abolished. Tinsley v. Durfey, 99 Ill. App. 239; McNab v. Heald, 41 Ill. 326; Brandenburg v. Buda Co., 299 Ill. 133.

The briefs present other questions touching the effect of defendant’s answer after its demurrer to the original bill had been overruled and the effect of filing a demurrer to the amended bill, which we do not deem it necessary to discuss. We have preferred to consider the case upon the main question presented.

We are of the opinion that the circumstances entitled complainant to seek relief in equity, and as this is the only question we are asked to determine, the decree of the circuit court is affirmed.

Affirmed.

•0’Connor, P. J., and Matohett, J., concur.


text:
    United Typesetting Company et al., Complainants, v. Congress Trust and Savings Bank et al., Defendants. United Typesetting Company et al., Appellants, v. Logan L. Mullins, Appellee.
    Gen. No. 37,765.
    Opinion filed December 24, 1934.
    Rehearing denied January 7, 1935.
    Caplow, Hallen & Caplow and Maurice L. Davis, all of Chicago, for appellants; Maurice L. Davis, of counsel.
    Glenn, Schwartz, Real & Browning, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Creditors of the Congress Trust and Savings Bank filed a bill to recover the added liability of the stockholders of the bank; April 14, 1934, a decree was enterecl finding that sufficient money had been advanced by the stockholders to the liquidating receiver to pay the creditors in full. They were ordered paid and the bill dismissed, except that jurisdiction was retained to settle the final accounts of the receiver.

After paying the creditors in full the receiver had in his hands.$25,045.29, to be used in the payment of costs and fees. May 25, 1934, an order was entered approving the final account of the receiver in the stockholders ’ suit; he was allowed for his services $10,000, his attorneys $4,839.66, and the attorneys for the complainants, who are the appellants, $10,000 in full of all services performed by said attorneys as attorneys for the complainants in this case; the receiver paid out all the money in his hands in accordance with the order, and thereafter filed with the clerk of the court canceled checks showing payment to himself, to his attorneys, and to the attorneys for the complainants the full amounts provided in the order from which this appeal is taken; the receiver was thereupon discharged from further duties as receiver in the cause.

Three of the complainants, by their attorneys, after the attorneys had indorsed and cashed the check received by them from the receiver for fees pursuant to the order of court, filed their notice of appeal from that portion of the order fixing and allowing fees to the receiver and to his attorneys and to the attorneys for the complainants. They asked, that no allowance of fees he made to the receiver in excess of $200 and that the allowance of fees to the attorneys for the complainants be increased from $10,000 to $19,800. The complainants have perfected their appeal in this court.

Logan L. Mullins, the receiver, filed .in this court a plea of release of errors, asserting that subsequent to the date of the entry of the order sought to be reviewed the appellants received and accepted the benefits of the order by accepting a check drawn May 29, 1934, by the receiver in the sum of $10,000, to the order of the attorneys (naming them) for the complainants, by indorsing and cashing the same and by collecting the sum of $10,000 thereon.

Demurrers were filed on behalf of complainants to the plea of release of errors, which have heretofore been overruled, and complainants were given leave to answer said plea if they were advised to do so. They have filed an election to abide by their demurrers.

Complainants raise the question as to whether the plea of release of errors is one single plea or three different pleas. We do .not think the fact that the paragraphs in the plea are numbered is of controlling importance. The plea fully relates the facts relied upon by the receiver as showing a release of errors.

The creditor complainants have been paid the full amount of their claims against the Congress Trust and Savings Bank. Their attorneys, who are in fact the real appellants here, accepted the benefits of the order appealed from by accepting and indorsing a check payable to them in the amount which was ordered paid to them in full for all services rendered.

It has been repeatedly held that if a party voluntarily accepts the benefits of a decree, such acceptance constitutes a release of errors and he will not afterward be heard to allege errors no matter how obvious they may be. Where a party has obtained the benefit of the order appealed from he is not entitled to have the record reviewed. Among the cases so holding are Morgan v. Ladd, 7 Ill. 414; Gridley v. Wood, 305 Ill. 376; Scott v. Scott, 304 Ill. 267; Boylan v. Boylan, 349 Ill. 471; Holt v. Rees, 46 Ill. 181; Trapp v. Off, 194 Ill. 287; Fishburn v. Green, 291 Ill. 350; Langher v. Glos, 276 Ill. 342; Kellner v. Schmidt, 237 Ill. App. 428.

It is also the rule that one cannot avail himself of that part of a decree which is favorable to him, accepting its benefits, and then prosecute an appeal to reverse such portion of the decree as is against him when the acceptance of the benefit from the one part of the decree is totally inconsistent with the appeal from the other part. Kellner v. Schmidt, 237 Ill. App. 428; Gridley v. Wood, 305 Ill. 376; Paine v. Woolley, 80 Ky. 568. In Carll v. Oakley, 97 N. Y. 633, it was held that the acceptance and retention by an attorney for one of the parties of a sum allowed him for costs is an acquiescence in the judgment and estops such party or his attorney from taking and prosecuting an appeal from such judgment.

We hold that the plea ivas sufficient to bar appellants from prosecuting this appeal. The order overruling the demurrers was proper, and as appellants have elected to stand by their demurrers, the appeal is dismissed.

Appeal dismissed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    Irvin Guy Goodman, Appellee, v. Keeshin Motor Express Company, Appellant.
    Gen. No. 37,824.

      Opinion filed December 24, 1934.
    Sbanner & S banner, of Chicago, for appellant.
    Boyal W. Iewin, of Chicago, for appellee.

   Mr. Justice McSurely

delivered the opinion of the court.-

In the early morning of January 25, 1933, plaintiff while driving an automobile on State highway No. 6 about five miles east of Geneva, Illinois, collided with a truck owned and operated by the defendant; plaintiff was injured and brought suit for damages and upon trial had a verdict for $4,000; defendant appeals from the judgment on the verdict.

The highway at the scene of the accident is of concrete 18 feet wide; the road passes underneath a railroad viaduct which is about 600 feet east of the scene of the accident; going westward from the viaduct there is a hill or upward grade for 800 or 900 feet; the brow of the hill is about 20 feet higher than the grade of the highway beneath the viaduct. Both vehicles were headed west. The collision occurred just as plaintiff passed the brow of the hill, going westward; there had been considerable fog during the night but toward 6:30 a, m., the time of the collision, it was still dark but not so foggy.

The truck of the defendant had left Chicago at about 11:30 p. m.; it was a five-ton truck, eight feet wide and 20 feet long; it was equipped with a red tail light located on the left side about 22 inches from the ground, and with three other lights in the center of the truck about 20 inches below the body; when the truck left Chicago the lights were inspected and found to be burning.

The truck was driven by Herbert Peterson, accompanied by Tony Sinkevis as a helper; shortly before the accident Peterson, confused by the fog, drove the truck partially off the highway so that the wheels on the right-hand side were in the mud, about two or three feet from the right edge of the concrete pavement; Peterson made various attempts to get the truck back on the roadway by driving forward and backward but the only result was to mire the truck more deeply; after these efforts had continued for some time a cattle truck came along, headed east, and its driver undertook to assist defendant’s truck to get back upon the concrete road; the cattle truck backed up behind the defendant’s truck and a chain was attached from the rear end of one truck to the rear end of the other; the left side of the cattle or eastbound truck was about two feet to the north of the left side of defendant’s truck, so that the cattle truck was largely in the westbound traffic lane; the headlights of the eastbound truck were burning.

Plaintiff with his father-in-law left Oak Park, Illinois, during the early morning and proceeded westward on route No. 6 for Sterling, Illinois; the roadway was wet. Plaintiff testified that he was generally driving about 40 miles an hour but slackened his speed to 25 miles an hour upon approaching and passing under the railroad viaduct; he proceeded up the hill, with his headlights burning, at the rate of about 25 miles an hour; as he approached the cattle truck he saw its headlights burning and thought it was coming toward him; he testified that it was “hugging the center of the road”; he saw no lights ahead except the headlights on the cattle truck; plaintiff turned to the right, expecting to pass this truck on the right, and testified that he did not see the defendant’s truck, headed westward, until he was about opposite the headlights of the cattle truck; that as he turned to the right his car went off the concrete pavement and he ran into the right rear corner of the defendant’s truck.

There were no rear lights burning on defendant’s truck after the accident, and there is considerable argument as to whether the lights were extinguished by plaintiff’s automobile when it collided with the truck, or whether, as plaintiff argues, the chain attached to the cattle truck broke the connecting electrical wire which supplied the lights. In our view of the case it is not necessary to determine what extinguished the lights.

The first count of plaintiff’s declaration alleged that defendant was negligent in allowing its truck to stand on a State highway while it was dark, and the third count alleged that defendant was guilty of negligence in failing to give notice to the plaintiff of the presence of its truck on the highway after it had become mired. Defendant cites a large number of cases involving the ordinary situation where one car is following another going in the same direction, but these cases are' not applicable to the instant situation. The accident happened just over the brow of a hill; it was still dark; plaintiff was confronted with the bright lights of the cattle truck which was headed eastward; these lights naturally prevented him from seeing defendant’s truck to the rear. It is well known that one facing the glare of a headlight in the darkness cannot see objects behind the light. Seeing the cattle tfuck in the center of the road, plaintiff turned well toward the right in an attempt to pass it, and it was not until he was out of the glare of these lights that he for the first time saw defendant’s truck. The situation presented a kind of trap for any vehicle approaching from the east. The jury was justified in finding that plaintiff was free from contributory negligence. In Price v. Bailey, 265 Ill. App. 358, we held that the accident was caused by the blinding lights of a car approaching from the direction opposite to that in which plaintiff was driving.

The jury could properly conclude that the defendant’s driver was negligent in permitting the trucks to stand as they did without any warning to an automobile coming westward. As we have said, the situation was one well calculated to mislead the driver of a westbound automobile into believing that he could pass the cattle truck to the right with safety. He would not know of the presence of the defendant’s truck until too late to avoid a collision. Defendant’s driver should at least have sent his helper eastward to warn any automobiles coming from the east of the conditions, and the jury could properly consider his failure to do this as negligence.

Respective counsel have devoted considerable argument to the question of how far rear lights on automobiles must be discernible and how far the headlights must illuminate with reference to control of driving. As we have said, we do not consider these points as decisive of the present case. The decision in each case depends upon the peculiar facts and circumstances presented. We do not find in any reported case facts exactly like those involved here.

The judgment is affirmed.

Affirmed.

O’Cohhor, P. J., and Hatchett, J., concur.


author: Mr. Justice Matohett

text:
    Bert B. Blake for Use of Merle L. McPherren and Eva McPherren, Appellee, v. Continental Casualty Company, Appellant.
    Gen. No. 37,696.
    Opinion filed December 24, 1934.
    Rehearing denied January 7, 1935.
    George C. Bliss, of Chicago, for appellant.
    Chapman & Cutler, of Chicago, for appellee; Dayton Ogden, of Chicago, of counsel.
   Mr. Justice Matohett

delivered the opinion of the court.

In a suit by Blake for the use of the McPherrens and upon trial by the court there was a finding for plaintiff in the sum of $2,469.55, with judgment thereon, which defendant asks us to reverse.

The statement of claim discloses that the suit is based upon an automobile liability insurance contract issued by defendant insurance company to plaintiff Blake. The evidence shows that while the policy was in force, Blake, driving an automobile in California, collided with another automobile which was driven by Mr. McPherren and in which Mrs. McPherren also was riding.

Separate actions in case were brought in the courts of Cook county by the McPherrens against Blake. In both cases the. McPherrens recovered. The amount for which judgment was recovered here is the total amount of the judgments rendered against Blake in these actions, together with costs of suit. Defendant insurance company refusing to pay the judgments upon demand, suit was brought against it for the benefit of the McPherrens (as the insurance policy provided might be done) to recover the amount claimed to be due under the promise to indemnify.

The policy provided:

“This insurance is subject to the following conditions and failure on the part of the Assured to comply therewith shall forfeit the right of the Assured or of any judgment creditor of said Assured to recover hereunder.
“ ... The Assured shall not voluntarily admit any liability for an accident and no loss arising from a liability which has been voluntarily assumed by the Assured shall be covered hereunder.”

The affidavit of merits alleged: “Following an alleged accident in which it is claimed that Merle L. Mc-Pherren and Eva McPherren were injured, the said Bert B. Blake did voluntarily admit liability for said accident in violation of one of the conditions of said contract of insurance”; and this is the only substantial defense that has been urged upon this appeal.

The evidence tends to show that on the morning following the California accident, Blake visited the hospital in which Mr. and Mrs. McPherren then were and said that “he was very sorry it happened; that it was all his fault.” The evidence also tends to show that Blake was at that time, as Mr. McPherren says, “greatly upset and took the whole blame and assured him (McPherren) that he and his wife would be taken care of,” or to put it in other words, the witness says that Blake stated “that he was very, very sorry it happened and he did not mean to do it and meant no harm to anyone, that he just lost his head completely; it was something he wouldn’t have had happen but he simply lost his head, and didn’t know what to do.”

Defendant contends that this evidence disclosed a failure on the part of Blake to fulfill the condition of the contract of insurance upon which the obligation of defendant was dependent; that the condition was a reasonable'one, and that by the express terms of the contract the failure of the assured to comply with it forfeited the right of the assured, or any judgment creditor of the assured, to recover. In support of this contention defendant cites a number of cases where it is claimed that under somewhat similar provisions it was so held. The case most nearly in point and most relied on is American Automobile Ins. Co. v. Fidelity & Casualty Co., 159 Md. 631, in which many of the other cases cited by defendant are reviewed. The condition of the policy there in controversy was: “The Assured shall not voluntarily assume any liability or interfere in any negotiations for settlement or in any legal proceeding or incur any expense or settle any claim, except at Assured’s own cost, without the written consent of the Company previously given; the Company reserves the right to settle or defend, as the Company may elect, any such claim or suit brought against the Assured.” There an accident occurred in which the testimony tended to show that the assured who was driving was either drunk or had been drinking about the time of the accident. The insurer was notified and sent its claim adjuster to interview the assured at the hospital. The adjuster saw and talked with him there in the presence of a police officer and a Dr. Murray, the father-in-law of the insured. At the conclusion of that interview the assured signed a written statement, the material parts of which are as follows:

“I, . . . agree to pay for the repairs to Dr. Chester Biland’s Flint sedan that was damaged by being-struck by my Buick Sedan that was driven by me on December 10, 1926, at 12:15 -a. m. . . .1 also agree to pay him for loss of use of his car. I agree to pay all expenses for repairs and loss of use. I was at fault in this accident. ’ ’ The court said that provisions of this kind were necessary in many cases to prevent collusion between the assured and those who had been injured; that the provision was reasonable, and that the assured by signing the statement had assumed liability for damages arising out of the accident, and that this was a violation of the condition which relieved the insurer from liability.

We think it may not be here held that the insurance company was released from its obligation under the insurance contract. The language used by Blake at the hospital comes short of a voluntary assumption of liability. As we construe the insurance contract it states two conditions: first,'the assured must not voluntarily admit liability for an accident, and, second, if he voluntarily assumes any such liability the insurer is not liable for such liability as the insured has voluntarily assumed. The words used by Blake do not amount to a voluntary admission of liability which we presume means a legal liability. It is one thing to admit a fault, but it is quite another and quite a different thing to admit or assume a legal liability. In the Maryland case the liability was distinctly assumed, and the assured agreed to pay it. Here there was no promise on the part of the assured to make such payment. Practically all the cases relied on by defendant may be distinguished either as to the provision which was in the insurance contract, or as to the nature of the supposed admission. Thus in Koontz v. General Casualty Co., 162 Wash. 77, the assured actually authorized confession of judgment in court in favor of the injured party. In Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271, the assured unequivocally refused to comply with the provision of the contract that he would co-operate with the insurer in defense of the claim. In Fidelity & Casualty Co. v. Marchand, 13 B. R. C. 1135, the assured allowed a judgment to be taken against him and paid it without giving the insurer an opportunity for appeal. In all these cases, therefore, there was conduct on the part of the assured which tended to prevent a fair adjudication of the rights and liability of the insurance company.

Here, so far as the evidence discloses, substantially all the assured did was to state in the presence of the injured the facts with regard to the accident. It is not suggested that what Blake said was not true. The insurance company might properly contract with the assured that he should not in any way prevent a fair and just trial on the question of liability, but we think it might not lawfully contract for conduct on the part of the assured, which would amount to a suppression of evidence as to the actual facts. Such contract or such provision in the contract, would, we hold, be invalid as contrary to and against public policy (13 Corpus Juris 445; Goodrich v. Tenney, 144 Ill. 422) and the burden of proof in respect to voluntary admissions which would prevent a recovery under the contract rests upon defendant. 33 Corpus Juris 109.

In U-Drive-It Car Co. v. Freidman, — La. App. —, 153 So. 500, decided by the Court of Appeals of Louisiana March 12, 1934, the court, after a review of the authorities and construing a provision somewhat similar to that in the contract here sued on, held that an admission of fault did not amount to an assumption of liability, since it amounted only to an admission of the truth of the fact from which liability might flow, while an assumption of liability brought into existence a contractual obligation. We approve the rule there stated. We hold therefore that Blake was not precluded by his factual admission of fault from bringing suit on this contract.

Defendant also contends that the evidence does not sufficiently establish the identity of plaintiff’s automobile which was in the California collision as the one involved in the policy of insurance issued to plaintiff. No question of variance was raised upon the trial of the case. The question is not specifically raised by the affidavit of merits, and the evidence was, in our opinion, prima facie sufficient and uncontradicted. Under such circumstances the evidence is not required to be so clear and accurate as on a disputed question. White v. Chicago, P. & St. L. R. Co., 196 Ill. App. 459.

For the reasons indicated the judgment of the trial court is affirmed.

Affirmed.

O’Connor, P. J., and McSurely, J., concur.