author: Mr. Justice Stone

text:
    City of Flora for use of Liberty Mutual Insurance Company, Appellee, v. Sam Bryden, Appellant.

      Opinion filed December 12, 1938.
    Rehearing denied January 14, 1939.
    Smith, George & McCollum, of Flora, and W. C. Ropiequet, of East St. Louis, for appellant.
    H. D. McCollum, of Louisville, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

The city of Flora for the use of Liberty Mutual Insurance Company, its insurer, brought this suit against Sam Bryden to recover the amount paid the dependants of Howard Gilman, responsive to an order of the Illinois Industrial Commission, who received an injury from which he died while in the employ of said city. The deceased received said injury September 5, 1935, and died September 16, 1935. The complaint alleges, the right of plaintiff to sue under section 29 of the Illinois Workmen’s Compensation Act [Ill. Rev. Stat. 1937, ch. 48, § 166; Jones Ill. Stats. Ann. 143.44]. It also alleges that on September 5, 1935, the city operated an electric light and power plant wherein it had employed the deceased as an electrical engineer; that Bryden was removing and replacing boilers in this plant under a contract with the city; that the city, deceased and Bryden were all subject to the Illinois Workmen’s Compensation Act; that employees of Bryden, under his exclusive care and control, on that date were breaking up concrete foundations with chisels and hammers. All of these allegations were admitted by Bryden in his answer.

It was further alleged in the complaint that on September 5, 1935, while deceased was walking through the boiler room on his employer’s business, exercising all due care for his safety and while the city was in the exercise of all due care for the safety of the deceased, he was struck in the left breast by a piece of steel broken from the sledge hammer used by an employee of Bryden, causing a wound resulting in his death on September 16, 1935; that Bryden was then personally present in charge of the work of his employees; that such work was hazardous and dangerous causing pieces of hammers and drills to fly with great force, frequently penetrating the flesh and causing serious injury, all of which Bryden knew; that it thereupon became the duty of Bryden to safeguard and carry on such work so as not to endanger other persons; that he neglected to do so and that this neglect was the cause of the injury and the direct and proximate cause of the death of the deceased; that the injuries sustained by deceased were accidental injuries arising out of and in the course of his employment, and the city was liable to pay compensation for such injuries and for the death of deceased; and that such injuries and death were not proximately caused by the negligence of deceased or of the city or its employees, but were caused under circumstances creating a legál liability against Bryden. In his answer Bryden admitted he was present in charge of the work of his employees on September 5, 1935, but denied all the other allegations summarized in this paragraph.

The complaint further alleged that the city became liable to pay $4,500 to the widow of deceased; that the Industrial Commission of Illinois had awarded the widow of deceased $1,208.10 in a lump sum and the balance in weekly payments; that the insurer, for whose use this action was brought, was incorporated for the purpose of carrying on insurance, including workmen’s compensation insurance; that on September 5, 1935, the insurer covered the city under a workmen’s compensation policy and became liable and did pay the award rendered in favor of the widow of deceased, hence was subrogated to the widow’s right to bring this action. As to the allegations summarized in this paragraph, Bryden disclaimed any knowledge or information.

In addition to his denials the defendant Bidden as an affirmative defense alleged that the injury received by deceased was not in itself sufficient to cause his death; that the deceased and the city were obligated to secure and provide proper and necessary medical care, which they failed to exercise reasonáble diligence in doing; that no effort was made to remove the certain piece of steel which had penetrated the flesh of deceased until four days after the alleged injury, and that the deceased by reason of the failure of proper and necessary medical treatment, became exposed to infection and toxemia, which was the proximate and sole cause of his death. No pleading was filed by the city in response to this.

The injury upon which this suit is based occurred in the electric light plant in Flora, Illinois. This plant is housed in a building consisting of two large rooms. In the south room are the engines; in the north room are the boilers. The deceased was an engineér in the south room. Improvements were being made in the boilers in the north room. Such improvements necessitated the deepening or lowering of the pits in which the boilers were, and in order to do this it apparently became necessary to take out the cement bottoms of the pits for the purpose of lowering. Defendant was employed by the city to perform such necessary work. On September 5, 1935, defendant with his men were at work on this job. Deceased came through the door leading from the engine room to the boiler room and walked around the pits where the boilers were and stopped near to the point where defendant’s men, four of them, were working. Their work at that time consisted of breaking or destroying the cement bottom of the pits by the use of steel chisels and large hammers of the weight of about 10 pounds. These hammers served to drive the chisels into the cement, thereby to break it. At a point some six or seven feet from where two of the men were doing this work, deceased stopped and engaged in conversation with defendant. There it was noticed that his shirt was covered with blood. The deceased made some ejaculation about something hitting or striking him. The defendant unbuttoned deceased’s shirt and looked over the wound to some extent, and afterwards took deceased to a doctor for treatment. About the time of this incident one of the defendant’s servants who was using a hammer looked at his hammer and saw that a small piece of steel was broken off of it.

Upon examination by the doctor it was found that a piece of steel had penetrated the flesh in deceased’s chest, struck a rib and glanced upward and backward, severing the intercostal muscles and was imbedded in the flesh about an inch and a half from where it entered the body. This piece of steel was removed by the doctor and was offered in evidence here and identified as plaintiff’s exhibit one. This exhibit was certifled to this court as an original exhibit, but it never appeared. When the envelope and gauze in which it was supposed to be sealed was opened at the day of oral argument, it was found that said exhibit was not there. We have never seen it.

Some evidence was offered as to the dangerous character of work defendant and his servants were engaged in and the danger of particles of steel breaking from the implements used. No precautions were taken by way of barricades to prevent the happening of such things as are alleged to have happened here. No warning was given of a dangerous place, or the dangerous character of the work; only a “keep out” sign was attached to one of the doors, which is a common thing to be attached to all plants of this character.

When deceased was taken to the doctor the doctor made an examination as best he could under the circumstances, — probed the wound with his little finger, enlarged it in order that it might be gotten at more easily, but did not attempt at that time to remove the said exhibit. Some days later septicemia set in, from which the deceased died on September the 16th of the same year.

The case was heard by the court without a jury and judgment was rendered in favor of plaintiff for the sum of $1,266.10. From this judgment appellant has appealed, and has assigned a very large number of errors, all of which might easily have been placed in three or four assignments. Chief of these assignments are that the verdict is contrary to the law and evidence, and against the manifest weight of the evidence, error of the court in denying the motion by defendant for judgment in its favor, refusal of proper evidence and the admission of incompetent evidence.

Defendant claims that the allegations of his affirmative defense not having been answered by plaintiff they are admitted as true, and that, therefore, the court erred in not directing a verdict for defendant, because said affirmative defense having been admitted entirely destroys the cause of action set up in the complaint. On this contention defendant invokes section 156 of the Civil Practice Act, [Ill. Rev. Stat. 1937, ch. 110; Jones Ill. Stats. Ann. 104.032], which provides “When new matter by way of defense or counterclaim is pleaded in the answer, a reply shall be filed by the plaintiff”; and also relies on section 40 [Ill. Rev. Stat. 1937, ch. 110, §164; Jones Ill. Stats. Ann. 104.040] which provides “Every allegation, except allegations of damages, not explicitly denied shall be deemed to be admitted” and so forth. These sections in many cases might be taken as literally true, as in the case of Lewis v. Nieman, 293 Ill. App. 639,12 N. E. (2d) 701 (Abst.). This was a case in which the usual charge of damages by assault was alleged in the complaint without any statement that said assault was made not in necessary self-defense. The affirmative defense in the case alleged that the assault was made in necessary self-defense of the defendant. No reply was made to this allegation, and the Second District Appellate Court held that self-defense was admitted and, therefore, defeated the cause of action. It will be observed in that case that at no point was the allegation of self-defense denied. These sections must be interpreted, however, in the light of a rational application to various causes of action. The complaint in this case alleges that the deceased came to his death by reason of a certain injury described therein, and that it came while deceased and the city of Flora were both in the exercise of reasonable care, respectively, for their own safety. This amounts to a denial of the affirmative defense. It would not make the issue any stronger if after the filing of the affirmative defense the city had again alleged that deceased came to his death by reason of the accident described. It is unnecessary; it would be superfluous. It might be illustrated by the act of placing a witness on the stand and eliciting certain statements of fact; then when these are denied, to place the same witness back on the stand to elicit them again in rebuttal. It is unnecessary, in other words, for a double denial of these facts. The filing of the affirmative defense in this case did not raise a new issue, as in the case of Lewis v. Nieman, 293 Ill. App. 639, 12 N. E. (2d) 701 (Abst.), supra.

The court did not err in refusing to direct a verdict for defendant by reason of the claimed admissions set up in the affirmative defense. The issue of how deceased came to his death was fairly presented to the court and the court found adversely to the claim set up by the affirmative defense. This was purely a question of fact. The doctor testified that the immediate cause of death was septicemia caused by infection from the wound made by the piece of steel. It is idle to argue that the septicemia arose from some other cause — malpractice for example. The evidence is squarely against that argument. Of course results come from wounds such as this. Results are what produce death and not the impact itself. The finding of the court on this issue was warranted by the evidence.

It is urged that the defendant is guilty of no negligence. Let’s see. He was engaged in a hazardous occupation, known to him to be so. It was known to him and his men that such things as chipping steel happen in connection with the occupation in which they were engaged. In fact it is a matter of common knowledge. He was present when deceased walked into the boiler room, apparently unfamiliar with what might result from the character of the work being carried on, while defendant knew of its dangerous character. There was no physical protection from injury such as the one that happened; no barricades, no boards, no screen, no protection of any kind; no warning by defendant to deceased to come farther away from the pit where he was standing. If injury results growing out of such a condition, how can it be said that defendant was not negligent in creating that condition and carrying on the character of work which he knew to be hazardous under that condition? Can anyone say that under these circumstances a court or jury would be in error in holding as a fact that defendant was guilty of negligence? We think not. The books are replete with cases of similar character from all jurisdictions, holding that men engaged in an occupation must in the carrying on of that occupation, use care commensurate with the known danger. This it is apparent that the defendant did not do, and to hold as a matter of law that defendant was free from negligence under the circumstances of this case would be little short of preposterous. It would only be equaled by a finding that the finding of negligence against the defendant in this case was against the manifest weight of the evidence. There is nothing by way of testimony to contravene facts above stated.

Did the deceased receive his injuries by reason of this negligence? A recital of the above facts together with the facts of the injury answer the question.

Argument is offered to the effect that the injury to deceased might have or must have come about through some other condition. The facts are, as shown by the evidence, that within five minutes’ time in which deceased was looking for his boss to deliver a message to him, he received a wound in the chest, which caused defendant to take such serious notice of it as to take him to a doctor. Almost instantaneous with this incident one of defendant’s servants examined his hammer and found that a sliver off of it was gone. A sliver of steel or some metal was afterwards located in the wound received by deceased. This is not an inference upon an inference; it is a clear case of circumstantial evidence from which one would naturally and reasonably conclude that the piece of steel flying from the hammer injured the defendant. At least it would be a question of fact to be determined by the court, and the court did determine that fact that way. We cannot say that it is against the manifest weight of the evidence. On the contrary we think the circumstances and facts in the case fully support that finding.

It is also urged that the deceased was guilty of contributory negligence, and that as a matter of law. From a reading of this record it appears to us that deceased did under the circumstances what a reasonably prudent man would have done under like circumstances. We do not believe as a matter of fact that deceased was guilty of contributory negligence; certainly he was not guilty of contributory negligence as a matter of law. The facts upon which that charge is claimed were all before the court. It is a question of fact whether deceased was guilty of contributory negligence, and the trial court thought that he was not. We are entirely in harmony with that finding; and without such finding having been made by the court,— a finding by which we feel bound, it being a question of fact,— if we were hearing this case for the first time we would be of the opinion that deceased was not guilty of contributory negligence in the premises.

It is next urged that the city of Flora was guilty of such contributory negligence as to bar recovery in this case. We see nothing in the proof to warrant this assertion. The defendant was an independent contractor. He was placed in a safe position so far as the city was concerned. The city did not create any unsafe condition. There is nothing about the premises as such which rendered them hazardous or liable to cause injury. Nothing caused injury or contributed to injury in this case except the unsafe manner in which defendant carried on his work without taking the proper precautions for the safety of others.

Ill our judgment this case was fairly tried. The judgment of the lower court is in harmony with the law and the evidence in this case, and it should be and is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    People of the State of Illinois ex rel. Edward J. Barrett, Plaintiff, v. Rio State Bank, Defendant. Charles H. Albers, Rio State Bank Receiver, Appellant, v. M. D. Landon, Administrator of Estate of Sam Lavis, Deceased, Intervening Petitioner, Appellee.
    Gen. No. 9,317.
    Opinion filed January 26, 1939.
    Rehearing denied May 2, 1939.
    L. Fred O’Brien, of Galesburg, for appellant.
    Woolsey, Stickney & Lucas, of Galesburg, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The Rio State Bank of the town of Bio closed on March 26, 1937, and is now in charge of a receiver for liquidation. During his lifetime Sam Lavis, who died on December 24, 1936, had a savings account in the bank of $6,122.11. The account shows a deduction of $5,000 made on March 3,1933, which it is conceded was not an ordinary withdrawal by Mr. Lavis. The legal consequences of the transactions between the bank and Mr. Lavis, resulting in this reduction of his account is a matter of controversy between the receiver and the administrator of the estate of Sam Lavis.

The administrator filed an intervening petition in the receivership proceeding, praying for an order of court finding an instrument in writing is an obligation of the bank and that the petitioner is entitled to have the writing allowed as a claim against the bank to the amount of $5,000 (less $150 paid thereon), as of equal standing with depositors of the bank. Under the allegations of the petition and the evidence introduced by the petitioner, the case was presented by the petitioner on the theory that the bank had represented to Lavis that the writing was an absolute obligation of the bank to pay him the $5,000 withdrawn from his account with 3 per cent interest, 3 years after the withdrawal. The court, however, found that the writing was without consideration and therefore unenforcible. Thereupon the court entered an order allowing the petitioner a claim against the bank for $5,000, less $150. The order reciting, “The same be and hereby is allowed as the claim of a depositor of said bank and of equal standing with all other depositors of said bank, and said amount is ordered to be paid by said Beceiver of said bank out of the assets of said bank.” The petition also prays for such other and further relief as the court may seem just and proper in the premises. It is not contended by the receiver that the decree awards relief not prayed for in the petition. No cross errors are assigned and we must pass on the order as it stands.

The instrument. in writing was introduced in evidence by the petitioner as Exhibit 1, and it is in words and figures as follows: “Rio, Illinois, October 24,1933. In consideration of certain deferred certificates of deposit of the Rio State Bank (representing contributions to the bank and subordinated to all deposit and creditor liabilities but payable before any distribution to stockholders as such) dated April 28, 1933, drawing interest at the rate of 3 per cent per annum from March 3, 1933, totaling in all $22,500.00, having been surrendered by the holders thereof, we, the undersigned, stockholders of said bank, hereby pledge to vote for the payment of the said $22,500.00 and 3 per cent interest thereon from March 3, 1933, at any time it is possible to pay any part or all of said $22,500.00 and interest thereon and until same is paid in full, out of the future net profits of said bank if and when such net profits are earned (future net profits are operating profits plus recoveries, less charge-offs and proper provision for reserves).

“One of said contributors to the bank is Mr. Sam Lavis for the amount of $5,000. (And $17,500 — from others.) Signed

“Claude E. Frankenberger representing 240 shares of bank.

Milton Deatherage representing 100 shares of bank.

R. E. Davidson representing 50 shares of bank.

B. Gr. Frankenberger representing 10 shares of bank.

Total 400 shares of Rio State Bank.”

The instrument was signed by all the stockholders of the bank. Clearly there are no provisions in Exhibit 1, entitling the petitioner to a decree allowing a claim against the bank of equal standing with depositors of the bank.

In the order, the court finds that the bank obtained the deferred certificate mentioned in Exhibit 1, from Sam Lavis and in exchange therefor, delivered to him Exhibit 1. Also, that there was no consideration for the surrender of the deferred certificate' by Lavis. Exhibit 1, recites that the promise made therein, is in consideration of the surrender of the deferred certificate. The surrender of the deferred certificate was the voluntary act of Lavis and the price paid for the promise made in Exhibit 1, by the stockholders of the bank. If the surrender of the deferred certificate by Lavis was a benefit to the bank, or even to the depositors, or the creditors thereof, the pledge, or promise, of the stockholders of the bank to pay Sam Lavis $5,000, as provided by the terms of Exhibit 1, was supported by a sufficient consideration. (Post v. First Nat. Bank of Springfield, 138 Ill. 559; Kincaid v. Over-shiner, 171 Ill. App. 37; Loeb v. Flannery, 148 Ill. App. 471; McKinney v. Armstrong, 97 Ill. App. 208.

The bank suspended operations on March 4, 1933, at the beginning of the “bank moratorium.” Before the bank was permitted to resume the banking business, the state auditor required, among other things, that the bank raise about $22,500, as a reserve to cover probable losses and to conserve the assets of the bank for its depositors. It clearly appears from the record, that the execution, the acceptance and the subsequent surrender of the deferred certificate were indispensible transactions forming a part of the plan to reopen the bank and to secure protection for its depositors. The motive of Mr. Lavis for joining in the plan to benefit the bank and its depositors is of no legal consequence. His savings account was in fact reduced by the amount of $5,000, which was added to the reserve of the bank. This withdrawal from his account was a contributing factor to the opening of the bank and securing protection to its depositors. The withdrawal was made with the consent of Mr. Lavis and he understood, when the withdrawal was made, that he with other persons, was joining in and contributing to a co-operative plan to reopen the bank and to protect its depositors, including himself as one of the depositors. The court in its order, found as follows: The Court finds that all the managing officers and stockholders and said bank were benefited by the said deduction of said sum of Five Thousand ($5,000.00) Dollars from said depositor’s savings account and by the issuance of said deferred certificate of deposit and by the said delivery of the said instrument in writing (Exhibit A and Petitioner’s Exhibit 1) to the said decedent.”

It would serve no useful purpose to state in detail the allegations of the petition, and the oral testimony introduced by the petitioner to support the petition. It is admitted by the receiver that the petitioner is entitled to the allowance of a claim against the bank to the amount of $5,000 deferred, or subordinated, to the claims of depositors and creditors of the bank, but preferred, with other claimants in the same position as the petitioner, to the stockholders of the bank.

The order appealed from is reversed and the cause remanded to the circuit court of Knox county with directions to allow the petitioner a claim of $5,000, against the said Bio State Bank deferred to the claims of depositors and creditors of the bank, but preferred before distribution of the assets of the bank to the stockholders thereof.

Reversed and remanded.


text:
    People of the State of Illinois ex rel. Earnest A. Bade, Appellee, v. Clarence J. Kennedy, Appellee. People of the State of Illinois ex rel. Arthur E. LeClaire, Appellant, v. Clarence J. Kennedy, Appellee.
    Gen. No. 9,345.
    Opinion filed January 26, 1939.
    Rehearing denied May 2, 1939.
    A. L. & C. M. Granger, of Kankakee, for appellant.
    Harry S. Streeter and Armen R. Blanke, both of Kankakee, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On March 12, 1937, a petition to establish a community high school was filed with the county superintendent of schools of Kankakee county, requesting the said superintendent to call an election on the proposition to establish a high school in the territory designated in the petition. It is conceded that this petition was in proper form. On March 15, 1937, more than one-half of the legal voters residing in four of the contiguous sections of land embraced in the first petition, filed a petition with the county superintendent of schools, requesting this territory be annexed to the Momence Community High School District Number 158. The county superintendent of schools did not act upon this petition, but by order of the circuit court of Kankakee county, the county superintendent annexed these four sections to the Momence High School District. An appeal was taken from the order of the court to the Supreme Court, and was there affirmed, and this proceeding, relative to the four sections, is not involved in this suit.

On April 12, 1937, another petition was filed with the county superintendent of schools, which embraced a part of the land in the petition filed March 12, 1937, but omitted the four sections that had been annexed to the Momence High School District, and requested an election be called by the county superintendent of schools to vote on the proposition of organizing a community high school in the territory proposed in the petition.

The county superintendent of schools did not know how to proceed in the matter, and refused to call an election on either of the petitions. One of the signers of the petition of March 12, filed a suit for mandamus to compel the county superintendent of schools to call an election on the first petition. Later, a similar suit was filed by a signer of the second petition, asking that the county superintendent of schools call an election on the second petition. The latter petition alleges that by reason of the annexation of the four sections to the Momence Community High School, the first petition becomes null and void. The cases were consolidated, the court ordered the county superintendent to proceed to call an election on the petition filed March 12, 1937.

The case was tried upon the following stipulation of facts: (1) “That respondent is the duly elected, qualified and acting superintendent of schools of Kankakee County. (2) On March 12, 1937, there was filed in respondent’s office a petition requesting him to call an election for the purpose of voting for or against the proposition to establish a Community High School for the benefit of inhabitants of the territory including the west two tiers of sections in Ganeer Township and all of the Township of Bourbonnais, except a tract 110 rods east and west by 40 rods north and south, the excepted portion being a part of Kankakee School District, all in the County of Kankakee.

Said petition was duly signed by more than fifty legal voters residing: within the described territory, which said territory is compact and contiguous, no part of which has been involved in any petition, election or proceedings had to organize a school district for more than two years previous, and no part of which said territory was included within the limits of any existing high school district. Also that relator Bade is a citizen, taxpayer and legal voter residing within said territory.

(3) Further stipulated that on March 15, 1937, a petition was filed by more than two-thirds of the legal voters residing in Sections 19, 20, 29 and 30, in Township 31 North, Range 12 East (being the south four sections of the west two tiers of sections in Ganeer Township). The petition so filed requested annexation of these four sections, being non-high school territory, to Momence Community High School District No. 158 adjoining on the east; that notice was duly given according to law of such proposed change of boundaries of the Momence District and no objections to the proposed annexation were made, and that later on April 9, 1937, on relation of a legal voter residing within said fotir sections, and upon due answer and hearing in the Circuit Court of Kankakee County, having jurisdiction of the subject matter and of all the parties, there was awarded a writ of mandamus directing the respondent Kennedy to enter an order annexing said sections to the Momence Community High School District No. 158; that an appeal therefrom was taken to the Supreme Court of Illinois where said judgment was affirmed (10 N. E. (2d) 806) and the said described sections were then duly annexed to said Momence District.

(4) That the said four sections so annexed to Momence District were included in the territory described in the petition filed March 12, 1937.

(5) That on March 16, 1937, there was filed in respondent’s office a petition that he call an election to vote for or against the proposition to establish a Community High School within a territory including a part of the east portion of Bourbonnais Township and the west two tiers of sections of Ganeer Township, including the four sections later annexed to Momence District, all of which territory was within the boundaries of the territory described in the petition of March 12, 1937.

(6) That on April 12, 1937, there was, filed in respondent’s office a petition duly signed by more than fifty legal voters residing within sections 5 to 8 both inclusive, 17 and 18 in Ganeer Township and sections 1 to 4 both inclusive, 9 to 16 both inclusive and 22 to 27 both inclusive, in the Township of Bourbonnais, requesting the respondent to call an election to vote for or against the proposition to establish a Community High School for .the benefit of the inhabitants of the last described territory. That said territory is compact and contiguous within the meaning of the statute in such case made and provided, and that relator Arthur E. LeClaire is a citizen, taxpayer and legal voter residing within said territory, all of which territory was also included within the limits of the territory described in the petition filed March 12, 1937. No portion of the four sections annexed to Momence District are included within the territory described in the petition filed April 12, 1937, nor has any part of the territory described in the petition filed April 12, 1937, been involved in any petition, election or proceeding to organize a Community High School for more than two years prior to April 12, 1937, except as otherwise stated in this stipulation, and no portion of the territory described in this petition filed April 12, 1937, is within the limits of any existing high school district.

(7) All of the territory in all of the petitions described is located in Kankakee County, Illinois.

(8) The petition for mandamus in cause No. 24389 is based upon the petition for election filed March 12, 1937, and petition for mandamus in cause No. 24397 is based on the petition for election filed April 12,1937.

(9) The respondent has no interest other than his desire to perform his duty according to law and submits the matter to the court, he not having acted upon any of the petitions filed in his office and herein referred to.

(10) The facts and circumstances upon which the rights of the public and of the relators in each of the consolidated cases are so identical and interrelated as to make advisable joint hearing and consideration of said causes, and relators and respondent consent and agree that the causes be consolidated and heard jointly by the trial Court and on appeal should any party desire to appeal.

(11) This stipulation to stand as the answer of the respondent in both causes and to be without prejudice to the right of either party to produce other evidence, or to the Court’s right to consider the petitions for mandamus in connection with this stipulation. ’ ’

This was all the evidence offered or received on the trial of the cause.

An examination of the stipulation discloses that, at the time the first petition was filed, it was in proper form, also that, if the later petition taking out the four sections from the proposed district, or the court on its own motion striking these four sections from the petition, did not invalidate the first petition, then the second petition would have no standing in court.

We have been unable to find a precedent to guide us in the decision of this case, nor has either side to the litigation cited any cases bearing directly upon the question involved, viz., “What was the legal effect of altering the petition after it was filed.” To entitle one to a writ of mandamus, one must show that he has a clear legal right to the writ at the time he asks for it. In this case by petition of a majority of the legal voters, the four sections in the first petition, were taken out of the proposed high school district, and put in a legally organized district. Later, the trial court amended the petition by striking these four sections from it. If the court could strike four sections from the petitions, we see no legal reason why he could not strike all but one or two, and the petition still be good. It is our opinion that when the four sections were taken from the proposed district, and added to the Momence district, that this was such an alteration of the original petition, that it became null and void, and the court could not amend the petition, and then compel the superintendent of schools to call an election on the amended petition.

The stipulation does not disclose what part of the signers of the original petition resided in that portion of the proposed district that was annexed to the Momenee High School District. An examination of the record discloses that there were seventy-five signers to the petition. If a majority of said petitioners lived in the four sections which were annexed to the high school district, then the petition would not be in legal form. The burden of proof showing that the petitioner had a clear right to a writ of mandamus, was upon the relator.

The alteration of the petition of March 12, invalidated it, and the same was void. On April 12, 1937, a new petition for an election to vote on the proposition of establishing a community high school in the proposed territory was properly filed, and in legal form.

It is our conclusion that the trial court erred in granting the writ of mandamus on the petition filed March 12,1937, but should have held that the same was invalid. The petition filed April 12, 1937, was a valid petition, and the county superintendent of schools should have been ordered to call an election on said petition.

The case is reversed and remanded to the trial court.

Reversed and remanded.


text:
    Edwin W. Anderson, Appellee, v. E. T. Collinson, Appellant. Appeal of E. T. Collinson, Appellant.
    Gen. No. 9,388.

      Opinion filed March 7, 1939.
    Burrel Barash, of Galesburg, and William J. Curtis, of Galva, for appellant.
    B. D. Robinson and P. B. Robinson, both of Galesburg, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On March 9, 1937, the defendant, E. T. Collinson, who is the owner of the farm involved in this suit, obtained a judgment in justice of peace court in Knox county, in forcible entry and detainer against Edwin W. Anderson, for possession of said farm. Anderson appealed from the said judgment to the circuit court of Knox county, Illinois, where said question is now pending on said appeal.

On the 19th day of August, 1937, Edwin W. Anderson filed his original complaint, in the circuit court of Knox county, and on the 22nd of November, by leave of court, filed an amended complaint, which charges in substance that on March 1, 1934, the appellee entered into a certain, written lease for the premises involved, being the 220-acre farm, for a term of one year, from March 1, 1934, to March 1, 1935; that he entered into possession of said premises on March 1, 1934; that in the fall of 1934, the parties entered into an oral agreement extending the lease from March 1,1935, to March 1, 1936; that in the fall of 1935, the lease was again extended from March 1, 1936, to March 1, 1937; that on the farm in question, the plaintiff has engaged in the breeding of purebred Poland China and Duroc hogs, and the farm in question was peculiarly well-fitted for this purpose; that in the fall of 1936, the parties again entered into an oral agreement, by which the terms of the written lease were extended from March 1, 1937, to March 1, 1938; that it was the custom in the neighborhood, where the said farm was located, to rent the farms in the fall, for the year following, and on account of said custom, he could not rent any other farm after December, 1936; that in the fall of 1936, he plowed about 20 acres of land, and plowed and sowed 15 acres of rye, which could not mature until the month of July, 1937, and that he spent much time and care in the improvement of the farm for his purebred hog business, and in preparing the said farm for the year from March 1,1937, to March 1,1938.

The defendant filed his answer, in which he admitted the written lease from March 1, 1934, and the oral agreements extending the lease year by year to March 1,1937. He denied that the plaintiff, Edwin W. Anderson, was in the purebred hog business, as alleged in the amended complaint, but avers that the business was conducted as a partnership, known as “Anderson Brothers.” The defendant denies that the plowing and spreading manure was done for the purpose and benefit of the farming season of 1937, but that .it was done under the extension of the former lease. The defendant denies that he had any knowledge that the plaintiff had sown any rye on the premises, and says if it was so sown, it was done without his knowledge, or permission. He denies there was any verbal lease entered into between the plaintiff and himself for the year from March 1, 1937, to March 1, 1938.

The court granted a temporary injunction restraining the defendant, Collinson, from prosecuting the forcible entry and detainer suit. In January, 1937, the case was referred to the master in chancery to take evidence, and report his findings both of the law and fact. In February, 1938, the master filed his report, and found and recommended therein, that a decree be entered by the court, that the complaint be dismissed for want of equity, and that the temporary injunction as entered be dissolved. The plaintiff filed his objections to the master’s report, which were overruled, but were allowed to stand as exceptions to the same. The court sustained the exceptions to the master’s report, and entered a decree on July 15, 1937, of specific performance of the oral agreement, to lease the farm from the 1st day of March, 1937, to the first day of March, 1938, on the same terms and conditions, as the former written lease, and a writ of injunction was entered, restraining E. T. Collinson from prosecuting the proceeding in the forcible entry and detainer suit. It is from this decree that the appeal is prosecuted.

There is a sharp conflict in the evidence as to whether there was an oral lease of the premises for the year from March, 1937, to March 1, 1938. The plaintiff swears positively, that there was such an agreement. The defendant, in his testimony, admits that there was some talk of an extension of the lease for the crop year of 1937, but says that he told the plaintiff that if he rented an adjoining farm, that he would not rent him his farm. The evidence shows that the plaintiff did rent an adjoining farm. One, or the other party is necessarily mistaken as to the conversations had at these different meetings. The trial court has found the issues in favor of the plaintiff, and unless this court, on reviewing the' evidence, can say that his finding is against the manifest weight of the evidence, we would not be justified in reversing the case, because the chancellor erred in Ms finding of facts. As above stated, there is a conflict in the evidence, but we cannot say that the findings of the chancellor are against the manifest weight of the evidence.

It is conceded that an oral lease, such as claimed in this suit, is within the statute of frauds, and unless the appellee relying upon such oral agreement, performed labor, or services in contemplation of a renewal of the lease, then it is unenf orcible, and is void. Sterenberg v. Beach, 219 Ill. App. 68; Dougherty v. Catlett, 129 Ill. 431; Westgate v. City of Aurora, 229 Ill. App. 84; Dyrenforth v. Palmer Pneumatic Tire Co., 240 Ill. 25.

The rule of part performance as applied to short term leases is not as strict, as when applied to contracts of sale (Biddle v. Whitmore, 134 Minn. 68, 158 N. W. 808.) In the case of Strand v. Hand, 178 Minn. 460, 227 N. W. 656, the Supreme Court of Minnesota considered a case very similar to the one in question. There a landlord brought an action of forcible entry and detainer against the tenant, and was successful, and the tenant appealed the case to a higher court and there, as here, the oral contract of leasing was in dispute. The facts in this case are very similar to the one we are considering, and the court there held: A verbal agreement to extend the terms of a lease for a period of one year, such year to commence at some future time, is witMn the statute of frauds, and as such, it is unenforcible, unless there is a part performance by the lessee, in preparation of the land for a crop during the extended term, in reliance upon the agreement. Plowing and sowing small grain was enough to justify the conclusion reached by the court, that the part performance was sufficient to avoid and bar the statutes.

In this case, it is undisputed, that the plaintiff in the fall of 1937, purchased rye for seeding and sowed 15 acres on the leased premises, and that he plowed 20 acres. These facts tend to support his contention there was a verbal agreement to lease the farm for the ensuing year, and this work was done as part performance of the contract. The trial court so held, and on the record, as presented, we are not inclined to reverse that finding.

The decree of the trial court will be affirmed.

Affirmed.


author: Per Curiam.

text:
    John Darwin Ellison, Minor, By His Mother and Next Friend, Nora Newton et al., Appellants, v. Terzie K. Ward, Trustee of Estate of Robert R. Ward, Deceased, et al., Appellees.

      Opinion filed March 13, 1939.
    D. F. Moore, of Benton, and Henry T. Martin, of Chicago, for appellants.
    Roy C. Martin, Layman & Johnson, Williams & Harrison, W. H. Hart and Hickman & Hickman, all of Benton, for appellees; Moses Pulverman, of Benton, of counsel.
   Per Curiam.

At the 1938 February term of this court an order was entered in this case reversing and remanding with directions. Ellison v. Ward, 294 Ill. App. 197. There was no order in reference to the taxing of costs. Subsequent thereto the clerk of this court issued a remanding order and fee bill. The fee bill contained the following items of costs, (a) Filing fee — $20, (b) Transcript of the record — $133.50, (c) Abstract of the record — $122.50, (d) Remanding order — $2.50. At the May term of this court appellee on the appeal moved to redocket the case and retax the costs. The item of costs objected to is item (b) “Transcript of the record — $133.50.” The other items are conceded to be correct.

Appellants object to redocketing the case and retaxing the costs on the ground that it was filed too late. Section 26, ch. 33, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.064] provides that any party who feels himself aggrieved by the taxation of any bill of costs by the clerk may apply to the court where the proceeding is pending to have the same retaxed according to law. In Chicago. City Ry. Co. v. Burke, 102 Ill. App. 661, it was held that a motion to retax costs could be made upon notice after the close of the term at which the judgment was entered. To the same effect is In re Dunning, 213 Ill. App. 602; Tanton v. Keller, 78 Ill. App. 31; 15 Corpus Juris 188. The question was not raised in Terminal R. Ass’n v. Larkins, 127 Ill. App. 80 but in that case this court permitted the retaxing of costs where the application was made at a subsequent term. Appellee’s motion was made in apt time.

Section 25, ch. 33 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 107.062] provides, “The clerk of any court in this state is hereby authorized and required to tax and subscribe all bills of costs arising in any cause or proceeding instituted in which he is clerk, agreeably to the rates which shall, for the time being, be allowed or specified by law; and shall in no case allow any item or charge unless he shall be satisfied that the service for which it was made was actually performed in the cause. ’ ’

The common law does not authorize taxing or allowing costs in any case and hence in this State judgment for costs must rest upon statutes. "Where the legislature has not authorized them they should not be awarded. It is also the general rule that statutes which impose costs are to be strictly construed. Gehrke v. Gehrke, 190 Ill. 166; Galpin v. City of Chicago, 249 Ill. 554. Nothing can be allowed as costs, either by the clerk or by the court except the items declared by the statute to be such, Roby v. Chicago Title & Trust Co., 194 Ill. 228.

Section 31, ch. 53 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 48.013] provides that the fees of the clerk of the circuit court in counties of the first and second class shall be paid in advance and that for each record of proceedings and judgment or decree whether on appeal, error or change of venue certified copies of orders and decrees and all other instruments, the fee shall be 20 cents for each 100 words.

Section 81, ch. 53 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 48.067] provides that in all cases when any party desires to take an appeal or sue out a writ of error from any judgment or decree of any court of record, and shall present to the clerk a fair copy of the bill of exceptions, report of proceedings at the trial, etc. The clerk for making up the transcript of the record for such appeal or writ of error shall be allowed 3 cents for each 100 words for comparing such copies with the original or with the record thereof and for correcting errors therein. It is further provided in said section that the party furnishing such transcript and who shall be successful on such appeal or writ of error shall recover as costs against the unsuccessful party not furnishing such transcript the amount of fees authorized by law charged by the clerk of the court from which the appeal was taken or to which the writ of error was directed, for making up the record, and the amount of fees authorized by law charged by the reporter for preparing the transcript of the evidence in said cause. Provision is also made to insert the original transcript of evidence either by agreement of parties or by order of court and in either event the clerk is not privileged to make any charge.

It will be noted that section 81 authorizes the taxing of costs when they are authorized by law and charged by the clerk. If the clerk does not receive or charge costs "there would be no basis for taxing costs against the unsuccessful party. The costs therein provided for are costs that are taxed or taxable in the trial court and with which the clerk of this court has no concern. Terminal R. Ass’n v. Larkins, supra. In support of appellee’s motion it is stated that there was nothing in the transcript showing that the clerk of the trial court had taxed any costs.

The costs taxable by the clerk of the trial court are not before this court on appeal unless the matter is properly presented in the record and the clerk of this court in taxing costs is limited to the costs incurred in this court and which are authorized by statute or by rule of this court.

Appellant relies upon Crowe v. Taylor, 134 Ill. App. 355. At the time of the decision in the Taylor case, section 81 provided that the successful party on appeal who had furnished the transcript should recover as costs against the unsuccessful party not furnishing such transcript, 10 cents for each 100 words. The Taylor case construing this provision held that an unsuccessful party was liable for costs taxed in the lower court in addition thereto 10 cents per hundred words on the transcript in the Appellate Court. The amendment of 1921 changed this provision so that the Taylor case is not in point.

There was no authority for the taxing of item (b) “Transcript of the record — $133.50” and the said item is ordered expunged from the records of this court as an item of costs and the said fee bill is quashed and another may issue omitting said item.


author: Mr. Justice Huffman

text:
    Albert E. Swinson, Appellee, v. Sylvia Sodaman, Appellant.
    Gen. No. 9,408.

      Opinion filed April 20, 1939.
    C. A. Pedderson, of Rockford, for appellant.
    Charles S. Thomas, of Rockford, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This case comes to this court by transfer from the Supreme Court. It is a suit by appellee to compel appellant to convey to him certain premises pursuant to an alleged oral agreement, claimed to have been made in connection with a conveyance of said premises by appellee to appellant, in payment and satisfaction of a debt secured by mortgage thereon. The principal amount of the mortgage indebtedness was $3,000, evidenced by a note for that amount dated November 2, 1931, and secured by a trust deed. Appellant became holder of the note in due course. The debt became due. Appellant had been compelled to pay delinquent taxes on the land. Under date of November 11, 1936, appellee and Ms wife executed to appellant a deed to the premises in full satisfaction of the mortgage debt, which deed is as follows:

This Indenture Witnesseth: That the Grantors Albert E. Swinson and his wife, Eumce M. Swinson, of the Town of Laona, in the County of Winnebago and State of Illinois, for and in consideration of the sum of One Dollar and other good and valuable considerations, in hand paid, Convey and Warrant to Sylvia Sodaman, of the City of Belvidere, County of Boone and State of Illinois, the following described Real Estate, to-wit:

“The East Thirty (30) acres of the North East Fractional Quarter (¼) of Section Nineteen (19) in Township Twenty-Nine North, Range Ten (10) East of the Fourth (4) Principal Meridian.

“Also the North East Quarter (14) of the South East Quarter (14) of Section Nineteen (19) in Township and Range aforesaid; excepting therefrom the premises conveyed by A. E. Swinson et al to Frank H. Adleman by deed recorded in Book 216 of Deeds, page 201 in the Recorder’s Office of Winnebago County, Illinois. Containing Seventy (70) acres, more or less.

‘ ‘ This Deed, is made voluntarily and under no compulsion or constraint, is an absolute conveyance of title in effect as well as form and is not intended as a mortgage, trust conveyance, or security of any kind. The consideration, therefor, is full release of all debts, notes, obligations, costs and charges heretofore subsisting on account and by the terms of that certain Trust Deed heretofore existing on the property herein conveyed, executed by the grantors herein to Everette G. Patterson as Trustee, and recorded in Book 372 of Mortgages, Page 49 of the Records of Winnebago County, aforesaid. This conveyance completely satisfying said obligation and terminating said trust deed and notes secured thereby, and any effect thereof in all respects. And by the execution and delivery of this deed, the grantors herein acknowledge the sufficiency and adequacy of the consideration set out.

“Situated in the Town of Laona, in the County of Winnebago, in the State of Illinois, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this State.

“Dated this 11th day of November A. D. 1936.

Albert E. Swinson (Seal) Eunice M. Swinson (Seal) ”

On December 3, 1937, appellee brought this suit to compel appellant to reconvey to him the premises for the sum of $3,000 and the delinquent taxes that appellant had paid, pursuant to an oral agreement so to do which appellee alleges appellant made. Appellant by answer denies making any such agreement or giving to appellee any option to repurchase the premises in question.

The court found in favor of appellee and that appellant had agreed with appellee to reconvey to him the land, as claimed, upon payment of the principal debt of $3,000 and back taxes; that appellee had made due tender thereof within the period fixed; and ordered that such conveyance be made by appellant, and that upon her failure to do so, the master in chancery make such conveyance. The appellant has prosecuted this appeal from the above decree.

Appellee was 73 years of age at the time of the hearing. He had lived in the village of Durand for many years and had not actively engaged in farming since 1912. He states that he had not farmed the land in question for three or four years prior to the conveyance thereof to appellant. With respect to this farm he says, “We couldn’t seem to make enough on the farm to pay interest and taxes.” He further states that it was because of this fact the farm was deeded to appellant. He alleges that appellant made an oral agreement with him that if he and his wife would execute and deliver to her a warranty deed to the premises, she would at the same time deliver to him a written option to repurchase the same upon the payment of $3,000 and back taxes which she had paid; and that this option to repurchase was to provide that such right to purchase should continue to March 2, 1938. The complaint alleges that this agreement was entered into on or about February 19, 1937. The complaint further alleges that the deed in question from appellee to appellant was executed and delivered on January 27, 1937. It will be noted that the deed is executed under date of November 11, 1936. It is further alleged that following the conveyance of the premises from appellee to appellant, she leased him the land for farming purposes for the cash rental of $30 per month. It is further alleged that prior to March 2, 1938, and on October 1, 1937, appellee made tender to appellant of a sufficient sum of money to repay to her the principal debt of $3,000 and the taxes on the farm which she had paid, pursuant to the alleged repurchase agreement; and that appellant refused to reconvey the premises.

It will be observed that the complaint alleged the date of the conveyance of the premises from appellee to appellant, by delivery of the deed, to be January 27, 1937, and the date of the repurchase agreement to be February 19,1937. No repurchase agreement was ever reduced to writing and appellee seeks now to enforce the same as a parol agreement. Appellee in his testimony states that he had several conversations with appellant during the summer of 1936, about the payment of the indebtedness then due and the taxes which she had paid. He claims she stated at such times that she would be willing to take the principal amount of the debt, $3,000, and the back taxes. He says that he told her, “I will try and do that.” The result was that appellee did not raise the money and did not carry out such proposal. He says he went to Beloit to see if he could secure a loan, but obtained no results, and that he made other attempts to secure a loan. He states there were certain judgments standing against him to which appellant objected, and that she consulted an attorney for the purpose of bringing a foreclosure against this land. He says that he did not want a foreclosure brought against him; that he met these parties and worked out a plan whereby such proceedings were avoided. It was at this attorney’s office he signed the deed in question. He states his understanding was that when he delivered the deed to appellant, the entire debt was released and discharged. He had not paid the taxes on the land for several years, and he had not farmed the land for three or four years. He had done no farming himself since 1912. He says he couldn’t make enough on this farm to pay the interest and taxes, and that it was because of this fact he deeded the same to appellant. He says he talked with her several times about the matter, both before and after the deed was given. He says that when she offered to cancel the debt if he would pay her her original investment of $3,000 and taxes, that he told her he would do so as soon as he could get the money. He says that at the time the deed was given, he does not recollect as to how long he was to have to get the farm back. He states he was to have a reasonable length of time and that he thinks it was something like a year. He says he tried to get the money and couldn’t. He further says that none of the conversations had between him and appellant, and upon which he bases this suit, were reduced to writing. He admits that when the year expired, he did not pay her the money, and states his reason to be that he never had the money with which to pay her.

Appellee’s son testified regarding the alleged conversations between appellee and appellant. He says he was present at some of them where he heard appellant agree to reconvey the premises to appellee if he could raise $3,000 and back taxes, by March 1, 1938. The witness states he heard such conversation in the fall of 1936, at the time when the discussions were being had regarding the judgments then standing against appellee and to which appellant was objecting and threatening to bring foreclosure. These judgments were small in amount and the son took care of them from his corn crop. It appears that about October 1, 1937, the son had secured a purchaser who was willing to pay an amount of money for the farm which would enable appellee to pay to appellant the sum of $3,000 and back taxes, and it was at this time that she was approached with such proposition and with an alleged tender of that amount. The son states that he did not know how much cash this prospective purchaser had, but that it was a large roll of bills and that he carried it in his pants pocket; that he did not take the money out of his pocket at appellant’s home at the time of the alleged tender, nor did he make tender of any sum of money. The son corroborates appellee to the effect that appellant in the spring of 1937, offered to convey the farm back if they would pay her the $3,000 and the taxes, which she had invested therein. Appellee and his son were the only witnesses regarding the conversations and transactions had between the parties.

The complaint is predicated on the theory that the transaction was an absolute conveyance of the premises with the right to repurchase. The court so found and held that appellee was entitled to such conveyance upon the payment of $3,000 and back taxes. The decree further finds that the deed was intended as a mortgage and given as additional security. This, however, cannot be the basis for the relief granted, as under such conditions a party seeldng to redeem must pay the principal debt, interest and taxes paid by the holder, and the interest thereon. Bremer v. Calumet & C. Canal & Dock Co., 127 Ill. 464. Furthermore, the evidence fails to disclose any claim that the deed in question was given as a mortgage, and an option to reconvey will not convert a conveyance absolute on its face into a mortgage. Longfellow v. Moore, 102 Ill. 289, 297; Rue v. Dole, 107 Ill. 275, 282; Caraway v. Sly, 222 Ill. 203, 205; Kimmel v. Bundy, 302 Ill. 514, 516, 517.

As above stated, the complaint is not framed to have the deed declared a mortgage or to be permitted to redeem from it, but it is to have the alleged contract for purchase specifically executed. The deed by its terms canceled the mortgage indebtedness, the premises were conveyed by appellee to appellant, and rented by him from appellant at the sum of $30 per month. Appellee in taking such lease, occupied the premises as appellant’s tenant. As stated in Longfellow v. Moore, supra, at p. 297, with respect to similar circumstances, “If this was not a satisfaction and termination of the mortgage, it is impossible to conceive what would have that effect. ” It is further said on the same page, ‘ ‘ nor did the agreement to give appellant the option to purchase within a specified time, and upon specific terms, revive it as a mortgage. Is it possible to suppose, after the satisfaction of the mortgage, appellee could have, at any time, foreclosed as on a mortgage? Surely not. And if not a mortgage in appellee’s favor, it surely could not be in appellant’s favor. If a mortgage, it must be mutually so as to both parties.” The right to redeem and the right to foreclose are reciprocal. Caraway v. Sly, supra, p. 206.

We are of the opinion there is no question but that the deed was an absolute conveyance. The appellee has recognized this to be so by the character of the complaint filed. It does not appear here that the deed and the defeasance were parts of the same transaction. Appellee states that the deed was mailed to him by the attorney who drew it. As previously stated in substance, if the relation of debtor and creditor continues to exist after the conveyance, and the debt still subsists as to the consideration of the conveyance, the transaction will be treated as a mortgage. The test is whether the debt continued or was extinguished. In this case we think it fully appears that the debt was extinguished. The conveyance in this case having extinguished the debt, the relation of debtor and creditor no longer existed, and there was no debt to support a mortgage. Therefore that part of the decree finding that the deed was intended as a mortgage and given as additional security, was erroneous. It is urged by appellee that a deed absolute on its face will be construed as a mortgage if the evidence of the debt is not surrendered up and canceled. It appears in this case that appellant did not return to appellee the mortgage and note involved. This question was before the Supreme Court in the case of Kimmel v. Bundy, supra, where at p. 517 the court states that it was contended by the appellant that the appellee in retaining possession of the notes and mortgage, which he held when the deed was made, was a circumstance showing that the debt was not satisfied by the conveyance. The notes and mortgage in that case were not delivered to the appellant but were retained by the appellee. The Supreme Court was not in accord with this contention of the appellant.

We now come to a consideration of the question of whether the alleged agreement to repurchase was sufficiently proven. There may be many times when a creditor would be willing to settle a debt by accepting less than the full amount due, but when such statements are made to a debtor and he replies that he is unable to comply with such offer due to the fact he doesn’t have the money, but will see if he can find it, does not mean that such debtor can in law enforce such proposal at some future time or date which was not in the minds of the parties at the time of such statement. The deed and the defeasance should be part of the same transaction, for a subsequent defeasance without a new consideration to support it, is a mere nudum pactum, and no rights can arise under it. The evidence in this case is most indefinite and uncertain as to any specific time appellant ever made such a proposal as claimed, or within what time the same should be executed. Appellee relies upon a verbal agreement to establish his right to purchase the premises, and as grantor is now claiming the privilege of paying to appellant within a given time, a certain sum of money, which he claims thereby entitles him to a reconveyance. Under such a state of facts, the equity of redemption does not continue, and it becomes necessary for the plaintiff: in such a suit to establish his right to repurchase by clear and convincing proof. It may well be that a person buys land in satisfaction of a precedent debt. Evidence of an oral option to repurchase following such a transaction should be so clear as to leave no question of the intention and agreement of the parties, and be so inconsistent with any other theory as to leave no substantial doubt.

Courts of equity will generally seek to avoid the harshness of forfeiture. However, the evidence should be sufficient and satisfactory, or sufficient circumstances should appear in evidence to warrant the court in resolving such doubts in favor of the party seeking the benefit of the rule. But here, we find that the deed was executed in an attorney’s office under date of November 11, 1936; that appellee by his complaint alleges delivery of the deed to appellant on January 27, 1937; that he alleges the agreement to repurchase was entered into on February 19, 1937, and was to extend to March 2, 1938. The evidence fails to sustain this position of appellee. The most that can be said is that it appears from his testimony he had conversations with appellant, the dates of which he cannot fix, some of which were long before the delivery of the deed, at times when appellant was seeking payment of her note, and at which times he says he told her he did not have the money but that if he could get it, he would pay her. The record fails to support the decree. The decree is reversed and remanded.

Reversed and remanded.


text:
    James Ready et al., Appellees, v. Thomas Ready et al., Appellants. George B. Davis, Appellant, v. James Ready et al., Appellees. Eugene E. O’Heron et al., Appellants, v. Thomas Ready et al., Appellants.
    Gen. No. 9,335.

      Opinion filed April 20, 1939.
    Oscar R. Laraway and Barr & Barr, both of Joliet, for appellants.
    Wise, Dufey & Wise, of Joliet, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

On July 11, 1930, John P. Loughnane and Alfred J. Stoos, as trustees, filed a bill of complaint in the circuit court of Will county to foreclose a trust deed dated June 1, 1927, to secure the payment of certain notes of the same date aggregating $5,000. On November 13, 1930, the Will County National Bank, through its officers, filed its answer denying the execution of the notes in question. On November 15, 1930, George B. Davis, who is also a party to the suit, filed his answer and denied that the complainants were entitled to any relief as stated in their bill of complaint. On December 3, 1930, George B. Davis filed a cross-bill, and alleged among other things that on March 15, 1929, he had become the owner of the premises involved, subject to a lien of a trust deed dated March 15, 1925, running to the Will County National Bank to secure the payment of $5,500. The plaintiff filed an answer to the cross-bill of George B. Davis and denied the material allegations therein. On May 1, 1933, the Will County National Bank, through its proper officers, filed its cross-bill in the same proceeding and sought to foreclose a mortgage executed on March 15, 1925, by the owners of the premises in question for the sum of $5,500. They claim that their mortgage was the first lien on the premises in question. The complainants filed an answer to this cross-bill and denied that the bank was entitled to the relief as sought. On July 2, 1935, the Will County National Bank amended its answer to the original complaint, and claimed that the money secured by their mortgage was used for the purpose of improving the property and had greatly enhanced the value thereof, and this was done with the full knowledge of the complainants in the original bill. The case was heard before the court without a jury. The court found the issues in favor of the complainants and entered a decree of foreclosure.

The facts as disclosed by the record are: Prior to the year 1905', William Beady, who had been in extremely poor health since his birth, and who was then 15 or 16 years of age, was sent to the western part of the United States, for his health. To enable William to make this trip, and to allow him to have means on which to live, James Beady loaned him money aggregating about $2,500 or $3,000. He also advanced William Beady other money to enable William to come back to Illinois for Ms mother’s funeral, and to return to the West.

James Beady purchased from his father the homestead farm property located near Odell, Illinois, in the year 1913, paying for the same partly in cash and partly by mortgage notes. It was customary for the Beady family to meet every year on or about November 1, to have James give an account to the family for the interest due on this purchase money mortgage. William also returned from the West each year and it was also customary for him to make an accounting to James, each November 1, of the moneys he had borrowed. James took a note each time representing the principal due from William, plus any accrual of interest up to the time of his taking such note.

The father, Patrick L. Beady, wishing to divide his estate among his children before his death, did so about November 1, 1923, giving William $6,000 cash, Thomas $5,500 in cash, and giving to his other children various amounts. A substantial portion of Thomas ’ money was paid to local storekeepers in Odell for debts. He received only $2,000 or $3,000 after his debts were paid.

Thomas Beady borrowed $500 from the First National Bank of Joliet, and which he used in June, 1923, to apply on the purchase of the real estate in question, which was then improved with a dwelling house. William Beady, on November 17, 1923, loaned Thomas Beady and Julia Beady, his wife, the sum of $5,000, $500 of which sum was used to repay Thomas’ personal loan at the First National Bank of Joliet, and the balance of $4,500 was used to complete the purchase of the real estate from Esther Davies and William T. Davies, the owners of said real estate. On the same date, November 17, 1923, Thomas and Julia Beady executed their 10 trust deed notes, aggregating $5,000, and their trust deed securing the same, which notes and trust deed were delivered to William Beady as consideration for his loan to Thomas. This trust deed was executed November 17, 1923, and recorded February 18, 1924.

In May, 1926, Thomas and Julia Ready made application to the Woodruff Securities Company for a loan of $1,500 to be secured by a mortgage on said real estate, and the application was granted on condition that William Ready would release his $5,000 first mortgage lien. To this William consented and on May 27, 1926, Thomas and Julia Ready executed their two principal notes in the aggregate principal sum of $1,500 and secured the same by a trust deed of even date, which was recorded June 3, 1926.

The release of William Ready’s $5,000 trust deed was executed by the trustee therein named on the same date, June 3, 1926 and recorded on June 3, 1926. On June 4,1926 Thomas and Julia Ready, for the purpose of securing their indebtedness to William Ready, executed and delivered to Alfred J. Stoos, trustee, their five principal promissory notes aggregating $5,000 and a trust deed securing the same, said trust deed stating upon its face the fact that it was subject to the prior indebtedness of $1,500, and each of the notes bearing the indorsement: “This Mortgage is a Junior Mortgage.” These trust deed notes, although executed on June 4,1926, bore date of November 17,1923 (the same date as the original notes held and owned by William Ready), and bore due date of November 17, 1928 (being the due date of the original notes held and owned by said William Ready).

On or prior to June 1,1927, Thomas and Julia Ready again made further application to the Woodruff Securities Company, through Mr. Stoos for an additional loan of $1,500 and were again advised that such loan could be made if William Ready would subordinate his $5,000 mortgage. William again consented, and accordingly on June 1, 1927, Thomas and Julia Ready executed their trust deed of that date to the First National Bank of Joliet, trustee, securing their five notes in the aggregate principal sum of $3,000, said trust deed being recorded July 18, 1927. On the same date, June 1, 1927, Thomas and Julia Beady executed and delivered to Alfred J. Stoos, trustee, their trust deed bearing said date, securing their five principal notes of that date in the aggregate principal sum of $5,000. These notes were delivered to William Beady by said Alfred J. Stoos at the time he surrendered his other notes. He took the notes home with him, but did not receive the trust deed securing same until the latter part of 1929 or the first part of 1930. This trust deed was recorded July 20, 1927, and the releases of the original $1,500 first mortgage owned by the Wood-ruff Securities Company and of the $5,000 second mortgage formerly held by William Beady were both recorded July 18, 1927.

The notes and trust deed dated June 1, 1927 in the aggregate principal sum of $5,000 are the ones foreclosed in favor of James Beady by the decree of court below. These notes secured by said trust deed dated June 1,1927 bear due date of November 17, A. D. 1930, the same due date having been carried through in all of these transactions in so far as the trust deeds and notes executed by Thomas and Julia Beady to secure William Beady are concerned, with the exception that the latter notes bear due date of November 17, 1930, rather than November 17,1928.

James Beady on or about November 1, 1927 had his annual accounting with his brother William for the moneys that William owed him and, as was customary, took a note from William for the full amount of principal plus accrued interest to the date of the execution of the note, demanded of William security for his note, and William at that time turned over and delivered to James the $5,000 in trust deed notes dated June 1, 1927, which were the notes secured by the trust deed foreclosed by decree of court below in favor of James Beady. James Beady remonstrated with William at the time he received these mortgage notes because he had understood that he was always to be secured by a first mortgage. The evidence shows that when he received these mortgage notes and discovered they were marked “This Is a Junior Mortgage,” he scolded William and asked him “Why in the hell didn’t you tell me that you changed that mortgage ? ’ ’ Thereafter a strained relationship existed between William and James and also between James on the one hand and Thomas Beady and Julia Beady, his wife, on the other.

On or about July 1, 1928 the buildings on the premises were destroyed by fire and the sum of $4,728.74 was paid by the insurance company by draft, payable to Thomas Beady, The First National Bank of Joliet, and William Beady. From this money the First National Bank received on July 27,1928 the sum of $3,030 in payment of its first mortgage notes and accrued interest thereon dated June 1, 1927. A release of the trust deed securing the $3,000 notes owned by the First National Bank was filed for record on September 18, 1928.

William Beady, who was named as one of the payees in the insurance company check at the request of his brother Thomas and, having no further interest in the trust deed notes then held and owned by James Beady, indorsed said insurance company check and allowed the full proceeds thereof, less the money paid the Woodruff Securities Company for the First National Bank, to be taken by Thomas and Julia Beady. The balance of insurance moneys received by Thomas and Julia Beady because of the fire consisted in the proceeds of policies covering their household furniture, etc.

James Beady, during all of this time, was a resident of Chicago, Illinois, and he states that the only cause for any visits which he made to Joliet, was to see his aged father, Patrick L. Beady, who was living in Joliet with Thomas and Julia Ready, and who was then and had been for some time totally blind and partially deaf. Patrick L. Ready died on January 14, 1930 at the age of 96 or 97.

During the latter part of February or the first part of March, 1929, George B. Davis, appellant herein, a contractor in Joliet, Illinois, approached Thomas and Julia Ready in regard to rebuilding or replacing* the residence destroyed by fire and submitted plans to them for the construction of a home, agreeing* to make all arrangements for the financing of the building. He was advised by Thomas and Julia Ready that the lot was clear. They believed that the $5,000 note and trust deed had been paid due to the destruction of the buildings, and was no longer a lien. However, George B. Davis procured from them an abstract of title to the premises in question, and on March 15, 1929, brought Thomas and Julia Ready to the office of Howard Wilson, a loaning agent for the Will County National Bank and had them execute a trust deed and 11 notes dated March 15, 1929, for the aggregate principal of $5,500. He also had them execute 60 trust deed notes in the aggregate sum of $2,200 and a trust deed securing the same, dated March 15, 1929, which $2,200 trust deed notes were subject to said $5,500 trust deed. He also had them execute a warranty deed conveying* the property to him and gave them in return a contract to repurchase. Howard Wilson as loaning* agent for the Will County National Bank disbursed the $5,500 in the rebuilding of the dwelling., He delivered the $5,500 trust deed and notes to the Will County National Bank and they were sold by said bank to Mike Nickel, et al., appellant noteholders. The abstract to the premises in question had been delivered by George B. Davis to Howard Wilson who had a continuation made by the Will County Title Company. The abstract showed the $5,000 trust deed or mortgage lien of James Ready. This abstract was not examined by Mr. Wilson or by anyone for him or by anyone for the Will County National Bank until after this suit was filed in the court below.

On or about November 1, 1929, James Beady demanded from and received from William Beady a new note, dated November 1, 1929, evidencing William’s indebtedness to him, both as to principal and interest, up to the date of the execution of said note, and said note in the sum of $6,618.30 was delivered to James by William. On January 29,1930 James Beady demanded from William the trust deed securing the $5,000 trust deed notes which he held and owned. The same was delivered to him and he gave William Beady credit for $5,800, being $5,000 principal and $800 interest then due on said trust deed notes. This credit was indorsed January 29, 1930, on William’s note of $6,618.30.

In the latter part of 1929 or the first part of 1930, it was discovered by Mr. Wilson that the $5,500 trust deed executed on March 15, 1929 was a junior incumbrance and was subject to the lien of James Beady’s $5,000 trust deed. James Beady as stated in appellants’ brief, filed his bill of complaint to foreclose the trust deed dated June 1, 1927.

By the terms of the decree the cross complaint of George B. Davis was dismissed for want of equity; the defendants were allowed 30 days in which to pay the amount due James Beady — $9,228.24, and the amounts due appellants aggregating — $7,925.17, and costs. In default of payment the master was directed to, sell the property incumbered by the trust deeds and out of the proceeds of the sale, James Beady was to be first paid, and if anything remained then the cross complainants, Mike Nickel, et al., were to be paid. The appellants herein appealed from this decree and an order was entered in this cause approving the appeal bond and granting supersedeas.

The assignments of error of appellant are grouped in three classes, the first being, “The court erred in not finding that the interested parties at all times intended and agreed that the trust deed in this case, foreclosed on behalf of James Ready, as a first mortgage as his mortgage was junior to any other indebtedness in the premises involved, and to the indebtedness and mortgage of Mike Nickel et al., secured by trust deed of March 15, 1929.”

It is undisputed that the mortgage held by James Ready was for money which he had loaned his brother; that Thomas Ready and wife executed the notes and mortgage on the day that they bear date and that the mortgage showed on its face it was a junior mortgage subject to an indebtedness to the bank and that all parties concerned considered it a junior mortgage for that purpose, but for that purpose alone. It is also uncontradicted that the mortgage to the bank was paid off and a release deed was given and filed in the recorder’s office in Will county, showing that the same had been canceled and the indebtedness secured by the mortgage had been fully paid. It seems to us that there is no question but that as soon as this mortgage indebtedness had been paid and released of record, that the mortgage of the complainant would become a first mortgage and lien, and regardless of who were the owners or holders of notes of a later mortgage, they could not have a lien that would be prior to the mortgage in question. Complainants’ trust deed was a matter of record which anyone could see. The evidence shows that before Thomas Ready and his wife borrowed the money to build the new house, they furnished an abstract showing the title to the premises. This abstract also showed that William Ready had a mortgage on the premises which was duly recorded. The officers of the bank who made the mortgage, for some reason did not see fit to examine or have the abstract examined to ascertain whether Thomas Beady and his wife had a clear title to the lot in question. Under the circumstances, we can find nothing in the record that would prevent the complainants’ trust deed being a first trust deed and a prior lien to the lien of the bank.

It is next insisted that, ‘ ‘ The court erred in not finding that James Beady was estopped from claiming that his trust deed was superior to the lien of appellants, Mike Nickel, et al., and also erred in not finding that James Beady waived his right to claim that the trust foreclosed on his behalf was a first and prior lien.” We do not find any merit in this contention, as there is nothing in the record to show that James Beady did anything, that should bar him from foreclosing his lien. In the pleadings it was contended, that there was fraud and collusion between the Readys, to have this mortgage on record as showing* the indebtedness more than it really was. The evidence does not sustain that contention. It is clearly established that James Beady paid full value for the notes and trust deed in question; that he settled with his brother after buying his father’s estate; that William was indebted to him in excess of $6,000; that William settled with James by giving him the note and trust deed in question and the amount of face of the note together with $800 interest was credited on William’s note to James. From that time on James had possession of the notes, but did not have the trust deed until about two years later. We can see no taint of fraud in any of the transactions between James and the others.

We think the evidence sustains James’ contention that he was not aware of the new house being built until after it was erected, and did not know who furuished the money to Thomas Beady and his wife to build a new house. If he had known it, it would make no difference. He had a trust deed for which he paid full value, and it was a matter of record. Anyone who was interested could have found it. We find nothing in this record that should estop James Beady from foreclosing his trust deed.

It is lastly contended that the decree is contrary to the manifest weight of the evidence. What we have said in discussing the other two assignments of error, is applicable under this one. The real trouble in the case grows out of the fact that in some way the examination of the abstract of title was overlooked by the parties making the $5,500 loan before it was granted. There was a failure to examine either the abstract of title or the records for liens. The recording of a trust deed is constructive notice and is as effectual as actual notice to preclude recovery for improvements placed on mortgage premises, after the execution of the mortgage. Such improvements inure to the benefit of the mortgagee; and while it is a hardship upon the holders of the notes of the second deed of trust to lose their money, it is due to their carelessness and negligence in not examining the records, which were open for their inspection, that their loss occurs. It would be just as great a hardship on James Beady if he should lose his money, which he invested in good faith, and who took the precaution to see that his trust deed was duly recorded. The evidence in the case fully sustains the findings of the court that James Beady was a holder in due course of the notes and trust deed in question, and that the same is a first lien on the mortgaged premises.

The judgment of the trial court is hereby affirmed.

Affirmed.


text:
    Peoria Investment Corporation, Appellee, v. Nellie L. Hoagland, Executrix of Last Will and Testament of William H. Hoagland, Deceased, Appellant.
    Gen. No. 9,338.

      Opinion filed April 20, 1939.
    Chester F. Barnett and E. E. Horton, both of Peoria, for appellant.
    Eagleton & Eagleton, of Peoria, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

In February, 1931, the State Trust and Savings Bank of Peoria, a banking corporation, failed and was taken in charg'e by the auditor of public accounts who was contemplating the appointment of a receiver and the liquidation of the bank. William H. Hoagland, now deceased, and whose executrix now appears as defendant, for many years was a stockholder, director and one of the vice-presidents of the bank when the bank failed. The officers of the bank and the auditor formulated and agreed upon a plan to protect the depositors of the bank and to save its stockholders from a stock assessment. Under the plan, a new bank was to be organized, which it was understood was to be named the Jefferson Trust and Savings Bank of Peoria, with a paid-in capital of $200,000 and a paid-in surplus of $100,000. The new bank was to assume the deposit liability of the old bank, and was to select the best assets of that bank equal to the liability thus assumed. The above requirement of the plan was met. Ho question is raised as to the legal organization of the new bank.

It was also an essential part of the plan that before the new bank was incorporated, that a corporation should be formed under the general incorporation law of the State of Illinois with a capital of $200,000, all of which was to be paid in cash to the State Trust and Savings Bank of Peoria for that amount of slow assets of the failed bank. The remaining assets of the State Trust and Savings Bank of Peoria were to be deposited in a fund for three years, to guarantee the assets selected by the new bank, the residue, if any, of such guarantee fund to belong to the Peoria Investment Corporation.

Before the organization of the new corporation, which was to be named the Peoria Investment Corporation, William H. Hoagland subscribed for 40 shares of its stock, for which he has not paid. The Peoria Investment Corporation, it is alleged, was incorporated on April 18, 1931. The total capital stock of the Peoria Investment Corporation was paid by subscribers other than Mr. Hoagland. On December 31, 1931, the Peoria Investment Corporation brought suit in the circuit court of Peoria county to enforce the subscription liability of Hoagland. A trial without a jury resulted in a judgment for the plaintiff for $4,000 against the executrix of the will of said Hoagland. The appeal is by the executrix.

One assignment of error of the appellant is: “An action upon a stock subscription will not lie where the subscription agreement fixes no time for payment, where it was not preceded by a proper demand, and suit is instituted less than the statutory period of twenty days following an attempted demand by mail.” The minutes of the corporation were introduced in evidence at the trial, and show that the board of directors, by a proper resolution, declared that the entire authorized amount of stock of the corporation has been subscribed, and that a demand be made forthwith, for payment of such from the subscribers who had not already paid. At a later date, the board of directors passed another resolution, in which the firm of Shurtleff and Niehaus, attorneys, were to be employed by the corporation, and authorized to make demand for unpaid subscriptions, and proceed against anyone, who had not paid in full. The evidence shows that the firm of Shurtleff and Niehaus sent a written notice to William. H. Hoagland demanding that he pay his subscription to the Peoria Investment Corporation. It is argued by the appellants, that this is not in compliance with the statute which was in force in regard to the stock subscriptions, under the Corporation Act, and claim no demand was made for the subscribed stock 20 days before this suit was started. They cite the case of Rockford Metal Specialty Co. v. Wester, 234 Ill. App. 260, as sustaining* this contention and call our attention to the fact that the case was decided by this court. An examination of that case disclosed that the facts are entirely different from the present one. The suit was not on the original subscription for incorporation of a new company, but for increasing* the capital stock of the corporation. In the case of Packard De Luxe Lines, Inc. v. Hudson, 248 Ill. App. 579, the court, in discussing the liability of a subscriber for capital stock in a corporation, used this language:

“In support of the defense plaintiff in error relies upon section 28, Cahill’s St. ch. 32, ¶ 28, pertaining to the issue of stock, and section 32, Cahill’s St. ch. 32, ¶ 32, relating to payments of subscriptions, of the General Incorporation Act. But we think there can be no doubt that said paragraph 28 applies only to additional stock authorized to be issued subsequent to the stock specified in the statement of incorporation as proposed to be issued at once, and to an increase of the original capitalization of the corporation, and that paragraph 32 has reference only to stock subscription payable in instalments. Nothing is said in the subscription of defendant, as it appears in the statement of incorporation, as to when the balance of the subscriptions are to be paid. On completion of the incorporation the charter contemplates that the stock so subscribed for shall issue at once and shall be paid for as issued unless made payable in instalments by action of the board of directors.” To the same effect is the case of Hankel v. East & West Pub. Co., 239 Ill. App. 236. We think that the above authorities set forth the correct rule, and that the statute is not applicable to the facts in this case. Whether the demand was a proper one, is immaterial, as none is necessary before bringing the suit.

The evidence shows that payment was made of the full amount of the capital stock to the appellee before the commencement of the suit. The fact that this payment was made by another person, other than the defendant, does not release him from the obligation on his subscription for capital stock. The evidence shows that Hoagland refused to pay for the stock issued for the organization of the corporation. Before the Peoria Investment Corporation could incorporate, it was imperative that it have $200,000 in cash. This was one of the requirements of the auditor before the new bank could be opened. In order to get the $200,000 in cash, another party, J. C. Wynd, advanced the money for Mr. Hoagland and a stock certificate was made out t'o him for the stock that Mr. Hoagland had subscribed for. Later, the Peoria Investment Corporation returned the $4,000 to Wynd which he had advanced for Hoagland’s stock, and the stock was held ready to be delivered to Mr. Hoagland. In the case of De Giver-ville Land Co. v. Thompson, 190 Mo. App. 682, 176 S. W. 409, a group of people formed a company for the purchase of land in the city of St. Louis. The land in question was being used and operated by the Rock Island Railroad Company, and on account of switch engines, trains, and smoke, it was becoming a nuisance to the adjoining property owners. They decided to purchase a large tract of this land from the company, and to subdivide it into lots, and sell it (subject to restrictions) to the public generally. John W. Thompson signed a subscription to take stock in the corporation, and then refused to carry out his part of the contract. In order to get the required amount of capital so the company could be incorporated, another land owner adjoining this tract of land, but not a subscriber to the original stock subscription, advanced $2,500 so that the company would have the required capital for incorporation. The company was incorporated and the money was returned to the adjoining property owner, and upon Thompson’s refusal to pay his subscription to the corporation, a suit was started. The court has this comment to make: ‘ ‘ The committee in good faith went forward and organized a corporation precisely as defendant had instructed and authorized it to do, and when it was so organized the entire amount of the capital stock of $100,000 was paid to the Rock Island Railroad Company for the purchase of the land described, and the title taken in the name of the corporation. Obviously the principles of natural justice require defendant to respond on this obligation in accordance with the finding of the jury; that is, as for a subscription to the stock of the plaintiff corporation. The promise of defendant, made in consideration of the mutual promises of the 127 other persons who signed the preliminary paper with him, inured to the benefit of the corporation subsequently formed, and in turn, of course, to the benefit of all the subscribers.” The Supreme Court of Missouri held that when the adjacent landowner had advanced the amount which Thompson had agreed to pay for capital stock of said company, and the company after being incorporated returned the money so advanced to the adjacent landowner, he had been acting as trustee for Thompson, and that Thompson could not escape liability on his subscription for stock in the corporation. To the same effect is the case of Somerset Nat. Banking Co.’s Receiver v. Adams, 24 Ky. L. Rep. 2083, 72 S. W. 1125. The payment of the full amount of the subscribed capital stock, by someone else besides the defendant, William Hoagland, did not release him from liability upon his subscription for stock in this corporation.

It is insisted that the appellant, William H. Hoagland, was not liable on his subscription, until the company is a de jure corporation, and that the powers vested in the appellee company could be exercised only by a corporation organized under the General Banking Act. The Peoria Investment Corporation was a de jure corporation duly organized, as shown from the record in this case, exhibits the subscription list, the application to the secretary of State to form such a corporation, a certificate of incorporation, and the certificate of the secretary of State, as to the articles of incorporation of the Peoria Investment Corporation. It is also insisted that the Peoria Investment Corporation was organized for a different purpose than that anticipated in the stock subscription agreement. The subscription agreement does not pretend to designate the kind of corporation which was to be organized, except the name of the company, the par value of the stock and the capital stock of the same. We see no merit in these contentions.

It is averred that the court erred in allowing J. W. Glascow to testify, when the suit was being defended by the administratrix of William H. Hoagland. An examination of the record discloses that there was no objection made to Mr. Glaseow’s competency as a witness, until he was called in rebuttal, at which time he had nearly completed his testimony. The attorney for Mr. Hoagland, when Mr. Glascow was called in chief, asked permission to interrogate the witness in regard to his competency. He was given permission to do so, and examined the witness, Glascow. No objection was made in regard to the incompetency of Glascow as a witness. Mr. Grlascow was dismissed from the witness stand, and another witness heard, but Mr. Grlascow returned, and continued to give his testimony with no objection on the part of the defendant. Under the circumstances, we think the appellant is not in a position to raise the question of the incompetency of this witness.

The appellee filed a motion to strike a part of the appellant’s ‘Statement, Brief and Argument.” The appellant has filed objections to the motion, and the same was taken with the case. We have examined the motion and suggestions in opposition thereto, and have decided that the same should be denied. The motion is therefore denied. We think, that under the evidence as disclosed by the record in this case, there is a clear legal liability of the appellant to pay the subscription price for this stock.

Complaint is made that the court admitted incompetent evidence on behalf of the plaintiff, and refused to admit competent evidence on behalf of the defendant. We think on the whole, that the rulings of the court were fair and proper.

The appellee has filed cross-errors claiming the court erred in refusing to allow interest of 5 per cent on the $4,000 judgment from October 26, 1931, to the date of the judgment, February 4, 1938. We have examined the authorities cited by the appellee, as sustaining their contention, but we are not disposed to disturb the finding of the trial court, that the plaintiff was not entitled to interest on the unpaid subscription. We find no reversible error in the case, and the judgment of the trial court is affirmed.

Affirmed.