author: Mr. Presiding Justice Dove

text:
    Harry C. Bock et al., Appellees, v. H. W. Felker, Appellant.
    Gen. No. 9,385.

      Opinion filed September 19, 1939.
    Rehearing denied November 30, 1939.
    Gardner & Gardner, of Rochelle, for appellant; Fred E. Gardner, of counsel.
    Stanley H. Guyer and Harry L. Arnold, both of Rockford, for appellees.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On June 11, 1937 Harry C. Bock, Lucille Bock and Reuben Bock filed their complaint in the circuit court of Ogle county alleging that the plaintiff Harry 0. Bock for six years prior to November 5, 1936 had been employed by the defendant H. W. Felker as a drug clerk and While so employed had performed his duties in a business-like way and accounted for all moneys received by him as such clerk; that on said November 5, 1936 he was wrongfully accused by defendant W. W. Hall of stealing and embezzling money from said defendant Felker and that as a result of cruel and abusive threats of criminal prosecution, his reason and judgment were destroyed and he procured a note of $2,850, which was secured by a real estate mortgage, which belonged to him and his wife, to be discounted receiving therefor $2,000, which amount, together with four notes aggregating $400, which he procured his brother Reuben Bock to execute, were given to said Felker, all without consideration and solely because of the threats made to and duress imposed upon the plaintiff Harry C. Bock. The complaint charged that Hall and Felker had entered into a conspiracy to cheat and defraud the plaintiffs out of said money and notes by threats of criminal prosecution and prayed for the return of the value of the $2,850 notes so secured by real estate mortgage and for the cancellation and return of the four notes aggregating $400. Service was not had on Hall and before hearing the suit was dismissed as to W. W. Hall.

The answer of the defendant Felker, among other things admitted that the plaintiff Harry C. Bock performed his duties as drug clerk in a careful and business-like manner but denied that he had accounted to the defendant for all money received by him, denied that he had made any threats of criminal prosecution or that he authorized Hall to make any such threats, denied that he and Hall had ever entered into any conspiracy or scheme to' defraud Bock, but averred that Bock had executed an instrument in writing admitting he had embezzled money from this defendant of not less than $2,700 aiid alleges that in settlement thereof Bock paid him $2,000 in cash and delivered to him the four notes signed by Harry and Reuben Bock aggregating $400. A jury was waived and the issues submitted to the chancellor, who entered a money decree in favor of the plaintiffs Harry C. and Lucille Bock for $2,850 and a money decree for $65 in favor of Harry C. Bock and directed the return by the defendant to Harry C. and Reuben Bock of the four notes aggregating $400. From this decree the defendant appeals.

The evidence discloses that appellant, H. W. Felker, owns and operates a drug* store in Mt. Morris, Illinois and has since March, 1930. Appellee, Harry C. Bock, was 35 years of age at the time of the hearing of this case, and began work for appellant as a clerk in his drug store at the time appellant became the owner thereof and was receiving for his services as clerk the sum of $25 per week. Lucille Bock is the wife of Harry O. Bock and testified that they had been married 14 years, that she had worked 9 or 10 of those years and at the time of the hearing owned a beauty shop in Dixon. Reuben Bock, the other appellee, is a brother of Harry Bock, 47 years of age, lives in Mt. Morris and is employed by the liable Company and has been for many years.

Harry Bock worked continuously for appellant as his clerk from March, 1930 until some time in 1934 when he went to Denver, Colorado to attend a pharmaceutical school. After completing a six months’ course there he returned to Mt. Morris and re-entered appellant’s employ and continued until April, 1936, when he quit and went to Morrison, where he worked until July, 1936, when he returned to Mt. Morris and again went to work for appellant in his drug store and continued working for him until about November 21, 1936. W. W. Hall, B. J. MacMurran and Katherine Turpney were a partnership doing business under the name of the Walton Service, Des Moines, Iowa. Its business, according to the testimony of Hall, was to send its representatives into a store, make purchases and a survey of the merchandise, observe the conduct of the clerks and check up to determine whether the store was functioning as it should and whether the clerks were honest or not. Mrs. O. R. Jamieson was one of the employees of the Walton Service and she and another employee in October, 1936 went to Mt. Morris and interested appellant in its service and entered into an oral contract with him by the provisions of which appellant was to pay $25 for the service rendered and in addition Hall and his associates were to receive one-half of any amount which was recovered from any defaulting employee. The latter part of October or the first week in November thereafter, Hall and three of his employees came to Mt. Morris and the three employees made purchases at the store. There was a cash register in the store into which all cash received from sales was to be placed and in connection with this register there was a strip of tape which recorded the amount of the sales. On November 4,1936, according to the testimony of appellant and Hall, Hall went to Mt. Morris, met appellant, checked with him some of these sale strips and appellant introduced him to Bock as an advertising man and at the request of Hall, Bock went with Hall to Hall’s room at the Kable hotel in Mt. Morris. According to Bock’s testimony, at one time this was on Tuesday, November 3, 1936, at another time he testified it was November 4, 1936. At the hotel, according to Bock’s testimony Hall told him that he and appellant had been checking up and found that Bock had taken $3,832 of appellant’s money while clerking in his store, told bim that he would be blacklisted all over the country and there was only one thing to do and that was to dig up some money for Felker or go to the pen. According to the testimony of Hall, he, Hall, showed Bock the sales strips from the cash register and stated to bim that he had not been ringing up the money on his sales and asked him if there was anything he wanted to tell him, Hall, about this and Bock replied: “Yes, I guess you caught me. ’ ’ Before they left the hotel Hall wrote on a typewriter, the instrument hereinafter set forth. Bock testified that Hall read it over to him but he was so frightened and nervous that he didn’t understand it, but signed it and handed it to Hall. Hall testified that after he prepared the instrument he handed it to Bock, who read it, signed it, handed it back to Hall and according to Hall they both went to the drug store and Hall showed appellant Bock’s confession, which is as follows: “November 4, 1936. I, Harry Bock, am an employee of Hugh Felker of Mt. Morris, Illinois. I have been in Mr. Felker’s employee for the past six years in the capacity of salesman. Before Mr. Felker purchased the drug store I worked for Mr. F. J. Dean in the same location. During the time I worked for Mr. Dean I first began making sales and not turning in all the money but appropriated money from the cash sales wrongfully. This habit continued when Mr. Felker bought the store. I have taken as much as three dollars and seventy cents in one day and as closely as I can estimate it I have averaged not less than a dollar and sixty cents a day. I can not tell or estimate how much money I have taken from Mr. Felker but to the best of my knowledge and belief the total amount of money I have wrongfully appropriated is not less than two thousand seven hundred dollars. I make this statement of my own free will and accord without having been promised immunity or without having been threatened by any person or persons. I promise never to do this again and if ever found so doing fully understand that this statement will be used against me. Harry C. Bock. Witnessed by W. W. Hall.”

According to Bock’s testimony, after the foregoing-instrument was prepared by Hall, he, Hall, after telling- Bock to dig up some money or go to the pen, asked him if he had any money and Bock told him he had $65 in the bank and Hall told him to get it for appellant to show him he was ‘ ‘ going to meet him half way and in that way we’ll hush the thing up.” Bock thereupon went to the bank and drew a check which was offered in evidence and which is dated November 5, 1936 for $45 and that amount, together with $20 which he had in his pocket, he gave to Hall. After this was done, Hall, according to.Bock, told Bock that $65 would not be enough to settle and asked him if he had’ any more money or property and Bock told bim he had had a property but had sold it on contract and Hall asked him to see the contract and Bock went to the bank and secured it from his safety box in the bank and brought it back to the hotel and gave it to Hall. The evidence is that Bock and his wife had built a home some years previous to 1935, 40 per cent of the cost of which had been furnished by the mother of Mrs. Bock and Mr. and Mrs. Bock had furnished the balance. In 1935 they sold this home to Maurice Stewart, and received in payment therefor some cash and a note for $3,100 secured by a trust deed, in which Harry C. Bock was named as trustee. In November, 1936 the amount unpaid on this note was $2,850 and it was this note and trust deed which Harry C. Bock procured from his box in the bank. According to Bock’s testimony Hall, on November 5, 1936, requested Bock to loan him his car so he could go to Rockford and sell this note and trust deed, Hall stating to Bock that he thought he knew someone there who would buy it for $2,500. Both Hall and appellant testified that they never saw the note or trust deed. On November 5th, according to Bock, he again saw Hall, who told him he was unable to sell the trust deed but that the bank would buy it for $2,000 but that he and appellant had decided that they wanted $2,500 and asked Bock if he knew where he could raise the other $500. Bock replied that he might borrow it from his brother and that he would go down into the lobby of the hotel and wait for his brother Reuben to come along from work; that he did so and Reuben came along and went with Harry up to Hall’s room, where he introduced him to Hall, that before going to Hall’s room, he explained to Reuben that appellant and Hall were trying to beat him out of some money; that upon arriving at: the room Hall told him that Harry was up against a serious charge, that he had taken a lot of money, over a period of years, about $3,200, that Reuben said to Hall that to help Harry out he would sign four notes, each for $100 but would not do it at that time but would go home and study it over. About five o’clock this same evening, November 5th, Hall and appellant went to see Stewart and later at the home of Mrs. Bock’s mother, Bock saw Stewart and told him he wanted to sell the' trust deed. Stewart and Reuben Bock work at the same place and the next day Stewart talked to Reuben and talked to him about Harry and Reuben said he knew about Harry’s trouble and Stewart told him he would like to buy the trust deed and Reuben said to go ahead and buy it, that he .coulcln’t. It- further appears from the evidence that Harry stated he would take $2,000 for the note and trust deed and on Saturday, November 7th, Harry and Stewart met at the bank in the president’s office. Besides Bock and Stewart, Mr. Dean, the president of the bank, was there. Neither Hall nor appellant were present. Bock had the note and trust deed and in return for a $2,000 draft made payable to his order, he delivered the note and trust deed to Stewart and executed a release for the trust deed and according to Stewart’s testimony, he, Stewart, made $850 thereby. Between 7:30 and 8 o’clock Friday evening, November 6th, Reuben returned to the hotel and executed four notes, each for $100, and these notes, also signed by Harry, were delivered to Hall and by Hall to appellant. Reuben requested something to show that the matter was straightened up and the following instrument was prepared by Hall, dated the next day, as it was understood the $2,000 was to be obtained on Saturday, November 7,1936.

“November 7, 1936

“Whereas, Hugh Felker, of Mt. Morris, Illinois, claims that Harry Bock is indebted to him for a sum of money amounting to Four Thousand Dollars which said Harry Bock has wrongfully appropriated from him while in his employee

“Whereas, Harry Bock admits that he is indebted to Hugh Felker for money wrongfully appropriated from said Hugh Felker but not for a sum amounting to Four Thousand Dollars

“Whereas Hugh Felker is ready and willing to accept a sum of money and other consideration in compromise of said claim

“Whereas Harry Bock is ready and willing to pay Hugh Felker a sum of money and other consideration in compromise of said claim

• “Now Therefore, be it understood and agreed between Hugh Felker, hereinafter designated Party of the First Part and Harry Bock, hereinafter designated Party of the Second Part, as follows:

“1. Harry Bock is ready and willing and does hereby pay over to Party of the First Part the sum of Two Thousand and Twenty five dollars in cash and does give to Hugh Felker Four promissory notes for one hundred dollars each in full settlement and satisfaction of claim of Party of the First Part against Party of the Second Part.

“2. Party of the First Part agrees to accept and does hereby accept the sum of Two Thousand and Twenty Five Dollars and four notes due successively on Nov. 6, 1937; Nov. 6, 1938; Nov. 6, 1939 and Nov. 6, 1940; each for the sum of One Hundred dollars, in full settlement and satisfaction of any and all claims against Party of the Second Part for shortages, speculations and defalcations caused by Party of the Second Part while in the employee of Party of the First Part to this day and date.

“3. It is distinctly understood by the parties hereto that this settlement is not made or accepted because of any promises made or threats to enforce any criminal actions but this settlement is only made to satisfy such civil claims Party of the First Part might have against Party of the Second Part.

H. W. Felker

Harry C. Bock”

According to appellant, Bock called him into the back room of the drug store on Saturday morning, November 7th, and presented to him the foregoing instrument, requested him to read and sign it, which he did and that then Bock handed him the draft for $2,000, which he, Bock, had indorsed. According to the testimony of Bock, he, Bock, went to the bank alone, obtained the draft, payable to himself, and later gave it to Hall. This was denied by Hall and both Hall and appellant testified that Hall was not in Mt. Morris on Saturday but that on Saturday afternoon appellant drove to Oregon, Illinois, where he cashed the draft, retained $1,000 and gave the remaining $1,000 to Hall at Beloit, Wisconsin.

Bock continued in the employ of appellant until November 20, 1936. He then went with his wife, his wife’s mother and a friend to Florida and in January, 1937 began working for the Wood Drug Company in Rockford, where he was employed at the time of the hearing.

Counsel for appellant argue that in addition to his signed confessions Harry C. Bock’s conduct from Wednesday, November 4, 1936 to Saturday, November 7, 1936, both inclusive, was not that of an innocent man and call our attention to the fact that he testified that when there were a lot of customers in the store, he did put the money from sales in his pocket instead of the cash register and that he had taken money out of the cash register with which to buy his meals when he was unable to go home at meal time, which he estimated might amount to about $100 during the years he worked for appellant. Bock’s testimony, however, is that the money which he put in his pocket he eventually rung up in the cash register and that this and the taking by him of money for his meals was done with the knowledge and consent of appellant. Appellant testified, however, that his instructions to Bock were that no money was to be taken from the cash register except money to be used to pay for goods which came into the store. Counsel also call our attention to the fact that during the period from November 4th to November 7th inclusive, Harry consulted with his brother, Reuben, with Mr. Dean, the banker, and with Maurice Stewart, and that after so doing he signed the instrument of November 7th and paid the $2,000 to appellant or Hall and delivered to them the notes executed by Reuben and himself. Counsel also point out the fact that on November 5th, Bock loaned his car to Hall and that Hall drove it to Beloit, Wisconsin and on the following day, by prearrangement, he, Hall, met Bock at the Manhattan Cafe in Dixon and the two returned to Mt. Morris together in Bock’s car.

We have read this unusual record with interest. Prior to the time appellant met Hall, appellant regarded Bock, his clerk, as dependable and trustworthy and had for many years, and never suspicioned him of wrong doing and even after he was furnished with his signed confession of guilt, he permitted him to continue in his employ for more than three weeks and frequently left him alone in his store. Bock positively denies that he ever embezzled any money from appellant and other than the circumstances hereinafter referred to and the instruments which he signed and which we have set forth in this opinion there is no evidence in this record that he did embezzle from his employer. His explanation for executing the inst.ruments heretofore set out in this opinion and discounting a perfectly good note secured by a trust deed for $850 less than it was worth and turning over the proceeds thereof amounting to $2,000 to Hall or appellant and for executing, with his brother, four notes aggregating $400 and giving Hall $65 in cash was because he was frightened and nervous and that Hall was the cause of his fright and nervous condition because he told him that he was an embezzler and that unless he fixed it up with appellant, he would go to the penitentiary.

‘ ‘ Duress has been defined as a condition which exists where one by an unlawful act of another is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will. (14 Cyc. 1123.) Mere annoyance or vexation will not constitute duress, but there must be such compulsion affecting the mind as shows that the execution of the contract or other instrument is not the voluntary act of the maker. (Citing cases.) ” Harris v. Flack, 289 Ill. 222. The decree in this case found that the money and notes obtained from appellees by appellant were obtained because Hall accused Harry Bock of embezzling funds from appellant and threatening him with imprisonment unless restitution was made. The evidence sustains this finding in the decree. All that the evidence in this record tends to prove, other than the instruments signed by Bock herein set forth, is that only a nominal sum at the most was ever taken from appellant by Harry C. Bock. As said in Kronmeyer v. Buck, 258 Ill. 586, if Bock embezzled any money belonging to Felker, he ought to repay it, but in the absence of convincing evidence that he owes any sum. whatever, and with only proof enough to raise a bare probability that he may owe a trifling amount, a court of equity will not permit Felker to take the law in his own hands and penalize Bock by taking and retaining title to his property. Reuben Bock was an innocent third party. There is no pretense that he was indebted to Felker in any amount. No one can read this record and come to any conclusion other than that he signed these notes solely to keep his brother from being punished for embezzlement, under the belief that if he did sign these notes, his brother would be saved from prosecution. While no promise of immunity may have been expressly made, and while the instrument of November 7, 1936 recites that no promises or threats to enforce any criminal action were made, the evidence, we think, establishes that Hall gave both Harry and Reuben Bock to understand that if they would execute the notes and Harry secure the $2,000 and turn it over to either Hall or appellant, he, Harry, would not be prosecuted and that there was an implied threat, at least, that if that was not done he would be. As said in Tramblay v. Hyde Park State Bank, 336 Ill. 80, at p. 90: “It is not unlawful for the owner of property which has been stolen or embezzled to receive from the criminal payment or part payment for the money or property taken, but if the owner of the property makes an agreement not to prosecute the criminal if restitution is made that makes the agreement unlawful, and a paper executed, whether a deed or note, under such agreement is not enforcible. (Citing Cases.) ”

All the evidence in this record cannot be reconciled. The chancellor had the advantage of this court in that he had the benefit of observing the witnesses and gathering impressions from them and their testimony as the hearing progressed, which we cannot gain from reading the record. In disposing of this case the chancellor stated that he had observed that Harry Bock was of a nervous disposition, easily frightened and he placed credence in the story he told and did not believe Hall’s testimony. The conduct or tactics of either Hall or appellant, as disclosed by this record, do not appeal to a court of equity and we hesitate to substitute our judgment for that of the trial court upon questions of fact.

From a careful and painstaking consideration of this record, we are unable to say that the findings of the decree are not sustained by the trustworthy evidence found in this record and the decree appealed from will therefore be affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Abe Waxenberg and Jeanette Brady, Executrix of Last Will and Testament of Dave Brady, Deceased, Appellants, v. J. J. Newberry Company, Appellee.
    Gen. No. 9,432.

      Opinion filed September 19, 1939.
    Opinion slightly modified and rehearing denied November 30, 1939.
    Kenworthy, Shallberg & Harper, of Moline, for appellants; S. R. Kenworthy and Robert J, Murphy, of Moline, of counsel.
    Stafford & Schoede, of Rock Island, for appellee; C. V. Pallister, of New York, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On and before April 6, 1926, Abe Waxenberg and Dave Brady were the owners, as tenants in common of certain real estate improved by a 3-story building in the business district of Rock Island. On that day they entered into a written lease with a corporation, known as Steel’s Consolidated, Inc. This lease with the exception of certain portions thereof not in any way material to the question involved in this proceeding is as follows:

‘1 This indenture, Made and Entered into this sixth day of April, A. D. 1926, by and between Dave Brady and Abe Waxenberg of the City of Moline, in the County of Bock Island and State of Illinois, parties of the first part, and Steel’s Consolidated, Ino. a corporation, organized under the Laws of the State of Delaware, with its principal place of business in the City of Buffalo and State of New York, and duly authorized and licensed to do business in Illinois, party of the second part, Witnesseth :

‘ ‘ That the said parties of the first part, in consideration of the covenants and agreements on the part of the second part hereinafter set forth, do, by these presents, lease unto the said party of the second part, the following described property, to-wit:

“The first floor of the building situate at #1719-1721 — Second Avenue, in the City of Rock Island, in the County of Bock Island and State of Illinois; and also the right to use the basement under said storeroom (except that part of the basement now occupied and used for the heating plant of the building), the lessors and their agents to have free access to such heating plant at all times; and also a room on the second floor of said building situate in the rear and on the east side of said second floor, which room is to be used for the storage of surplus stock; it being expressly understood and agreed by the said party of the second part, in consideration of the leasing of the premises above described, that under and for the whole term of this lease, said premises shall be used only for the purpose of carrying on a retail business generally known and designated as a “Five Cent to a Dollar Store,” with such lines incident thereto as stores of that character generally carry and deal in.

“To have and to hold the same unto the said party of the second part from the first day of October, A. D. 1926, until the thirtieth day of September, A. D. 1936; and the party of the second part, in consideration of said demise, does covenant and agree with the said parties of the first part, as follows:

“To pay as rent for said demised premises, the sum of Fifty-Seven Thousand Nine Hundred and No/100 (57900.00) Dollars payable in monthly installments of Four hundred fifty-eight dollars and thirty-three cents ($458.33) during the first three years of the term of this lease; the sum of Four hundred Seventy-five dollars ($475.00) per month during the fourth and fifth years of said lease; and the sum of Five hundred (500) Dollars per month during the sixth, seventh, eighth, ninth and tenth years of said lease, each in advance, upon the first day of each and every month of said term, at the Moline- State Trust and Savings Bank, of Moline, Illinois

í Í

“It is further understood that the said party of the second part may, on entering into said premises hereunder, or at any time during its occupancy hereunder, have the privilege from time to time of making such changes, alterations or improvements in said storeroom as it may think proper for the purpose of its business, but any such changes, alterations or improvements to be made in this connection, shall first be submitted to and be subject to the approval and consent of the said parties of the first part; and any such changes, alterations or improvements shall be at the sole cost and expense of the said party of the second part; it being expressly understood and agreed that in no event shall any changes or alterations be made, which will in any way damage the building or endanger its support or stability and that the said party of the second part will do nothing in this connection which will in any way involve or place liability on the parties of the first part and should the changes or alterations be of such a character as in the judgment of the said parties of the first part will warrant it, the said party of the second part, before beginning them, shall give to the parties of the first part, such bond or other indemnity as they may deem necessary and proper for their protection and the protection of the property; and the said party of the second part covenants with the said parties of the first part, that at the expiration of the term of this lease, it will yield up the premises to the said parties of the first part, without further notice in as good condition as when the same were entered upon by the said party of the second part, loss by fire or inevitable accident and ordinary wear excepted.

“It is further agreed by the said parties of the first part that the party of the second part shall have the right to sublet said premises, or any part thereof, and/or assign this lease without the written assent of the said parties of the first part first had thereto.

( t

“If said party of the second part shall abandon said premises and not pay rent therefor, the same shall be re-let by the parties of the first part, for such rent, and upon such terms as said parties of the first part may see fit; and if a sufficient sum shall not be thus realized, after paying the expenses of such re-letting and collecting, to satisfy the rent above reserved, the party of the second part agrees to satisfy and pay all deficiency.

“The covenants and agreements herein shall extend to and be binding and obligatory upon the heirs, executors, administrators and assigns of the parties of the first part; and upon the succesors and assigns of the party of the second part.”

Upon the execution of this lease, the lessee entered into possession of the leased premises and afterward assigned the lease to Steel’s Stores, Inc., a corporation, which company went into possession of the premises and continued in possession until it was adjudicated a bankrupt. Thereafter Adrian Block became the duly elected and qualified trustee of said bankrupt and by virtue of an order of the bankruptcy court, Block, as trustee, on May 13, 1930 assigned the lease to the defendant herein, J. J. Newberry Company, a corporation, which went into possession of the leased premises and regularly paid to the lessors the rent stipulated to be paid by the lease up to and including July 31, 1932. On June 30, 1930 the owners of the premises covered by this lease entered into another lease with the defendant for an apartment and storage room in the rear of the second floor of the building covered by the lease of April 6, 1926. This lease is as follows:

“This indenture, of lease made and entered into this ninth day of June 1930 by and between Dave Brady and Abe Waxenberg, of the City of Moline, in the County of Rock Island and State of Illinois, hereinafter called the Landlord and J. J. Newberry Co. a corporation organized and existing under the Laws of the State of Delaware, with executive offices at 245 Fifth Ave., New York, N. Y. and duly authorized and licensed to do business in the State of Illinois, hereinafter called the Tenant.

“Witnesseth that the said Landlord in consideration of the covenants and agreements on the part of the Tenant hereinafter set forth, does hereby lease unto the Tenant an Apartment and storage room in the rear of the second floor of the building known as #1719-1721 Second Avenue, in the City of Rock Island, County of Rock Island and State of Illinois; said apartment and storage room to be used by the Tenant for storage purposes and is more specifically described on the blue print which is attached hereto and made a part hereof.

“It is understood and agreed that the Tenant may use the front stairway and hallway leading to the demised premises but must not obstruct said stairway and hallway, nor the stairway leading to the third floor of the building which is used by other tenants of the landlord.

“To have and to hold from the first day of July 1930 until the thirtieth day of September 1936; a term of six years and three months.

“In consideration of said leasing the Tenant agrees to pay the Landlord the sum of $50.00 per month, payable on the first day of each month during the term of this lease and at expiration to yield up premises in as good condition as entered upon loss by fire or casualty, ordinary wear and depreciation excepted.

“It is further understood and agreed that the demised premises is to become a part of the premises covered by the lease made and entered into the sixth day of April, 1926, by and between the Landlord herein and Steel’s Consolidated, Inc. which lease covers the first floor of the building herein before described together with the right to use the basement under said storeroom except that part of basement now occupied and used for the heating plant of the building together with a room on the second floor of the building situated in the rear and on the east side of said second floor, which lease has been assigned to the Tenant herein.

“It is further understood and agreed that the Tenant herein is given the privilege of erecting a boardwalk or penthouse on the roof so as to connect the second floor space described in the above mentioned lease with the apartment or storage space covered by this lease and may make whatever structural changes are necessary except tearing out walls to fix up the apartment and storage space hereby leased for the purpose of the business of the Tenant removing partitions if necessary as well as cutting a doorway in the rear of the apartment and a doorway in the second floor space covered by the original lease mentioned above.

“It IS FURTHER UNDERSTOOD AND AGREED that this lease is subject to all the terms and conditions contained in the original lease above referred to which was made on the sixth day of April 1926, between the Landlord herein and Steel’s Consolidated, Inc. except so far as the space it covers, the rent to be paid and the other exceptions noted herein.”

Upon the execution of this lease of June 30, 1930, the defendant went into possession of the premises therein described and erected a boardwalk or penthouse on the roof of the building so as to connect the second floor space described in the 1926 lease with the premises described in the 1930 lease and made certain structural changes in the building and used the premises described in the 1930 lease in connection with its business which it was conducting on the premises described in the 1926 lease. On October 2, 1932 the lessor Dave Brady died testate and the plaintiff Jeanette Brady is the executrix of his will and on the 9th day of December, 1932 this action at law was instituted by Abe Waxenberg and Jeanette Brady as executrix to recover from the defendant $1,500, being the rent stipulated to be paid under the 1926 lease for the months of August, September and October, 1932 at the rate of $500 per month.

The declaration of the plaintiffs consisted of two counts. The first count alleged the making of the 1926 lease, the assignment thereof to the defendant and possession of the defendant of the premises for the period for which recovery is sought. The second count, in addition to the foregoing allegations contained in the first count set forth the making of the 1930 lease and concluded that by so doing defendant adopted the lease of 1926. The defendant plead the general issue and filed a special plea to each count of the declaration. The plaintiffs filed a similiter to the general issues. The special plea to each count of the declaration averred that on July 9, 1932 the defendant assigned the lease of 1926 to one Edward Easley of Mountain Lakes, New Jersey, set forth the assignment in haec verba and alleges that prior to August 1, 1932 and on or about July 9, 1932 it went out of possession of the premises and at that time put said Edward Easley in possession thereof, and alleges that defendant has not been in possession since it went out of possession on or about July 9, 1932. To the special plea to the second count of the declaration, the plaintiff filed a demurrer which was overruled and the plaintiffs abided their demurrer. To the special plea of the defendant filed to the first count, the plaintiffs filed three replications, in the first it traversed the allegation that defendant’s assignee, Easley, went into possession and traversed the allegation that the defendant went out of possession. To this replication the defendant filed a similiter. The second replication to the special plea of the defendant to the first count of the declaration alleged that the assignment to Easley was colorable and fictitious. To this replication the court sustained a demurrer. The third replication to the special plea of the defendant to the first count charges in substantially the language of the second count of the declaration, the making of the 1930 lease and concludes that thereby defendant adopted the lease of 1926. To this replication the court also sustained a demurrer. With the record in this condition, the defendant moved for judgment on the pleadings. This motion was sustained and judgment rendered in bar of the action and for costs and the plaintiffs appeal.

It is conceded by counsel for appellants that it is the law that an assignee of a lease who has entered into no contractual relationship with the lessor is not liable for rent after he has assigned his lease and gone out of possession of the leased premises. Counsel state that while they have no quarrel with this rule of law, it should not be extended to apply to the situation shown to exist by the pleadings in the instant case and insist that here appellee assumed the obligations of the 1926 lease, first, by the provisions of the original lease to the effect that its covenants would be binding upon the assigns of the lessee; second, by the recitals in the 1930 lease to the effect: (a) that the premises therein described were to become a part of the premises covered by the original lease of 1926; (b) that the 1930 lease was subject to all the terms and conditions contained in the original lease, except as to the space it covers, the rent to be paid and the other exceptions noted therein, and (c) that the lessee was granted the privilege of making certain structural changes in the premises covered by the 1926 lease.

In support of their contention, counsel cite Nachbour v. Wiener, 34 Ill. App. 237 and insist that the situation in the instant case is analogous to the situation there. In that case it appeared that the original lease was in writing. By verbal agreement the landlord erected additional premises especially for the use of the tenant and additional rental was agreed upon. The action was by the landlord to hold the tenant liable for the additional monthly rent. The tenant conceded that it was bound by the terms of the written lease but insisted it was not liable under the verbal agreement by reason of the statute of frauds. In holding that the tenant had not surrendered possession of the premises especially erected by the landlord for the use of the tenant and to which the landlord had no access except from an alley at the rear, the court said: “The changes made in the building at the request of appellant (the tenants) made it entirely a new and different room from the one they rented and they have no power or authority, under their lease or otherwise to destroy the unity or identity of this room afterward. . . . The new arrangement was, in effect, a new leasing upon the basis of the old lease, upon an increased rental in consideration of the improved character of the building.” Not so in the instant case. There the tenant continued to occupy the room covered by the original lease and while he did so, the new part erected by the landlord especially for him was of no value to the landlord. In the instant case appellee paid for the improvements and has retained the possession of the premises covered by its lease. Here the physical aspects of the premises covered by the 1926 lease remain substantially unchanged. The facts therefore differ widely in the two cases.

Consolidated Coal Co. v. Peers, 166 Ill. 361, was an action in assumpsit by the owners of coal underlying certain land in Madison county to recover from the Consolidated Coal Company certain rent which the declaration averred accrued to them by virtue of the provisions of a lease executed by them and the Abbey Coal and Mining Company for a term of 25 years with a covenant of that company to pay an annual royalty of at least $1,200. The declaration charged that the Abbey Company entered upon the premises, sank a shaft and operated a mine thereon until August 11, 1886, when, by its deed of that date, it assigned the lease and transferred the coal underlying said tracts of land, together with the rights and'privileges that had been assured to it by its lease with the plaintiffs and subject to the agreements therein mentioned to be performed by it as lessee, to the Consolidated Coal Company. The declaration alleged that the defendant took possession of the property under its conveyance from the Abbey Company and was in possession during the period plaintiffs sought to recover rent. To this declaration the defendant plead that on November 28, 1887 it assigned and set over to Jacob Lasurs the lease in the declaration mentioned and all the leasehold interest and estate thereby conveyed and put Lasurs into possession of the mine and premises in the lease described and traversed the allegation that it was in control and enjoyment of the premises during the time for which plaintiffs sought to recover. Plaintiffs moved to strike this plea. Counsel for the respective parties, as well as the trial and Supreme Courts, treated this motion as a demurrer and it was sustained by the trial court. In reversing that ruling the' Supreme Court said that where there are express covenants in a lease which run with the land, such as to pay rent, the lessee is bound to their performance by reason of Ms being both in privity of contract and privity of estate with the lessor, and the privity of contract continues to the end of the term but by an assignment of the term the privity of estate is terminated and that between the lessor and the assignee of the term there is privity of estate, and by reason of such privity the assignee is liable for breaches of any express covenant of the lease which runs with the land or term and which occur while such privity continues to exist. The court then stated that the plea impliedly admitted the making of the lease, the covenant of lessee to pay the stated rents or royalties, the assignment to the defendant and possession by it until it assigned the lease to Jacob Lasurs. That the plea also alleged that the defendant put Lasurs in possession of the leased premises and traversed the allegation in the declaration to the effect that the defendant was in possession or had the use, control and enjoyment of the premises during the period for which rent was sought to be recovered. In holding that this plea presented a complete legal defense to the suit, the court said: “The rule is, that as the liability of the assignee grows out of privity of estate, and that only, it ceases when that privity ceases to exist, and each successive assignee is liable for only such breaches of covenant as occur while there is privity of estate between him and the lessor.” (Citing cases and authorities.) It was insisted by the plaintiffs, (the lessors), that the assignment by the Abbey Company of its lease to the defendant was made “subject to the agreements therein mentioned to be performer by said lessee ’ ’ and that this provision amounted to a covenant on the part of the defendant to pay the accruing rents or royalties for the residue of the term to the lessors in the assigned lease, in other words, that such provision showed a privity of contract between plaintiffs and the defendant. In holding otherwise the court said: “The expression, ‘to be performed by said lessee’, does not refer to appellant (the defendant). The Abbey Coal and Mining Company is the only ‘lessee’ mentioned in the declaration or in the deed set forth therein. Said company is manifestly the ‘lessee’ designated. The words, ‘to be performed by said lessee’ then, are merely descriptive of the agreements, intended to be pointed out by the deed and the whole clause relied on simply means ‘subject to the agreements of the lessee mentioned in the lease. ’ ” The court then referred to and commented upon several authorities and held that these words did not impose a personal contractual obligation on the assignee and concluded: “There are several considerations that lead us to the conclusion that the words ‘subject to the agreement, ’ etc., used in the deed of August 11, 1886, do not import a covenant on the part of the assignee to personally pay all rents or royalties that may accrue during the term: First, the weight- of authority is otherwise; second, the rule deducible from the decisions of this court in analogous cases is otherwise ; third, as has been suggested in some of the cases, it is the duty of a party who intends by a deed to bind another by a covenant in a former formal instrument, to insert such covenant in the deed in such distinct and intelligible terms as that the party to be bound cannot be deceived, and not call upon the court to infer such a covenant from equivocal words, which were probably understood by one party in a sense different from that sought to be ascribed to them by the other; fourth, the assignee always takes the estate cum onere, — that is, he takes and holds it subject to the agreements agreed to be performed by the lessee, and it is difficult to perceive why, upon sound legal principle, the mere expression of this legal implication should create a personal contractual obligation which the legal implication itself would not create; fifth, it is the public policy of this State that the transmissibility of property should be free and unfettered, and to hold, from mere inference and in the absence of an express and plain covenant, that the assignee of a lease and his heirs will be personally liable for the payment of reserved rents which may accrue perhaps hundreds of years after, such assignee has sold and assigned the lease to a third person, would tend to make leasehold estates unsalable and tend to prevent the transfer of them to others.”

In our opinion the holding in the Peers case is decisive of the questions presented upon this appeal. There is nothing ambiguous in the provisions of either the 1926 or the 1930 lease and there is no language therein or in the declaration concerning the assignment to appellee from Block, the trustee in bankruptcy, which says or could be construed into saying that appellee assumed the rent obligation of the original lease. There being no express or implied assumption by appellee of the obligations of the lease of 1926, then, as between appellants and appellee, there is no privity of contract and appellee was only liable for rent while, as between the parties, privity of estate existed. Upon appellee assigning the lease and going out of possession, his liability for rent terminated. The trial court therefore did not err in overruling appellants’ demurrer to the special plea to the second count of the declaration, nor did the trial court err in sustaining a demurrer to the second replication to the special plea filed by appellee to the first count of the declaration. It was defective in not stating facts but simply conclusions of the pleader. Furthermore, “An assignee may always discharge himself from liability for subsequent breaches, both as regards rent and other covenants, by assigning over: even though it be done for the express purpose of getting rid of his responsibility.” Taylor Landlord and Tenant, 5th Add. p. 333, sec. 452. Nor was there any error in sustaining appellee’s demurrer to the third replication to appellee’s plea to the first count of the declaration. The allegations of this replication are a clear departure from the case made by the first count. Moore v. National Fire Ins. Co., 275 Ill. App. 1.

In our opinion Springer v. De Wolf, 194 Ill. 218 does not sustain appellants’ contention. There Warren Springer expressly assumed, in the conveyance of the leasehold, the other obligations of the lessee and in the course of its opinion the court said: “The appellant received a conveyance of the leasehold estate, received possession of such estate and assumed to pay the rent. There was thereby established between the appellant and the appellee a privity of contract and a privity of estate. That privity of estate was terminated by the conveyance and transfer of possession of the demised premises to McGinniss. But the privity of contract— the contractual liability of the appellant — was not- thus terminated. No valid reason is apparent to us why the appellant should not pay the rent he assumed.”’ We have considered the exhaustive brief and reply brief submitted by counsel for appellants and have read the other cases upon which they rely. These other cases do not, in our opinion, sustain their contention.

The record discloses, however, that appellee filed the general issue to both counts of the declaration, thereby traversing every material allegation of fact therein. By so doing it estopped itself from questioning its sufficiency on demurrer and until the general issue was withdrawn, issues of fact remained undisposed of. Issue had also been joined upon appellants’ first replication to appellee’s special plea to the first count of the declaration. When a plea is filed and an issue formed, all right to test the sufficiency .of any precedent portion of the pleadings is waived unless the declaration be so defective that it will not sustain a judgment and that may be taken advantage of by a motion in arrest of judgment. Schofield v. Settley, 31 Ill. 515; Keeler v. Campbell, 24 Ill. 287; Merker v. Belleville Distilling Co., 122 Ill. App. 326. In rendering judgment upon the pleadings while issues of fact remained undisposed of necessitates a reversal of this judgment and a remandment of this cause.

Reversed and remanded.


author: Justice Huffman.

text:
    Alex Gust, Appellant, v. Sinclair Refining Company and Mary Stebley, Appellees.
    Gen. No. 9,404.
    opinion filed September 19, 1939;
    rehearing denied November 30, 1939.
    Milton A. Kallis and Thomas A. Pojunas, for appellant; Hall & Hulse, for appellee, Sinclair Refining Company; William R. Allen, Sturtevant Hinman, Harry A. Hall and Marshall Meyer, of counsel.
   Opinion by

Justice Huffman.

‘‘Not to be published in full.”


author: Mr. Justice Huffman

text:
    Mary Hyba et al., Appellants, v. C. A. Horneman, Inc. et al., Appellees.
    Gen. No. 9,457.

      Opinion filed September 22, 1939.
    Rehearing denied November 30, 1939.
    C. A. Pedderson, of Rockford, Walter L. Orpe and Edmund M. Gray, both of Chicago, for appellants.
    William D. Knight, of Rockford, and Lord, Bissell & Kadyk, of Chicago, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This action was brought by appellants against appellees under the civil damage section of the Dramshop Act (sec. 135, ch. 43, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 68.042]), which section provides that: 1 ‘ Every husband, wife, child, parent and ... or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, ... of any person, shall have a right of action . . . severally or jointly, against any person or persons who shall, . . . have caused the intoxication, in whole or in part, of such person.”

The complaint alleges appellants to be the parents and brother and sister of Mary Hyba, deceased; that while she was riding in an automobile with Wilson B. Lowery, as his guest, on November 20, 1937, she was killed in an accident alleged to have been caused by his intoxication. It is alleged that his intoxication was produced by defendant appellees. The complaint alleged that the deceased was steadily employed and earned an annual income of $1,800, from which she contributed materially to the support of appellants.

Appellees filed their motion to dismiss the complaint on the ground that appellant, Anthony Hyba, as father and administrator of the estate of Mary Hyba, deceased, instituted an action under the Injuries Act, ch. 70, § 1 et seq., Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 38.01 et seq.], against Wilson B. Lowery for her wrongful death; that appellants in that action were the next of kin of the deceased, and therefore the same persons as bring this suit; that the suit against Wilson B. Lowery under the Injuries Act was settled for the sum of $2,500; and that this action under the Dramshop Act will not lie. It appears that the suit under the Injuries Act was terminated by a covenant not to sue based upon the payment of $2,500.

The court granted the motion of appellees to dismiss this action brought under the Dramshop Act. It is the position of appellees that the Injuries Act and the Dramshop Act are each exclusive of the other, and the rights created thereunder not cumulative; that where a party elects to bring a suit, as was done here, under the Injuries Act against an alleged wrongdoer, he thereby elects to pursue that remedy and is barred from bringing suit under the Dramshop Act against persons producing the intoxication of the wrongdoer, whose consequent acts resulted in the injuries. Appellees urge that where a party brings a suit, which he may bring only by reason of a statute, he thereby elects to pursue the remedy provided by that statute, to the exclusion of any other remedy. Appellants urge that the Injuries Act and the Dramshop Act are separate and distinct, that the causes of action therein created are separate and distinct, and that bringing suit under the one does not bar suit under the other. Thus, the case is presented to this court. The question appears to be somewhat unsettled by judicial decision in this State and no like case in any other jurisdiction has been called to our attention.

The common law gave no remedy for the sale of liquor either on the theory that it was a direct wrong or on the ground that it was negligence, which would impose a legal liability on the seller for damages resulting from intoxication. Neither did the common law provide for survival of actions for wrongful death. The right of action created by the acts under consideration herein are purely statutory. To supply the defect of the common law in the way of remedy for injuries or damages caused by intoxication, the legislatures of most of the States have passed statutes creating the right of action therefor. Such statutes have uniformly been upheld. However, they are penal in character and therefore should be strictly construed. Cruse v. Aden, 127 Ill. 231. But the prevailing view is that such legislation is remedial and should be so construed as to suppress the mischief and advance the remedy.

The survival of action for wrongful death came into existence by virtue of the act of February 12,1853. Its intended purpose is manifest and it was designed for the exclusive benefit of the widow and next of kin of the deceased person. By its terms,' action thereunder cannot be maintained except in such cases as the injured party himself could maintain. FTo such restrictions exist under the Dramshop Act. There, recovery may be had by any person injured in their person, or property, or of their means of support, even though there could be no recovery for wrongful death, under the Injuries Act, and even though the deceased person could not have maintained an action for his injuries had death not ensued. Schroder v. Crawford, 94 Ill. 357; Meyer v. Butterbrodt, 146 Ill. 131, 134; Triggs v. McIntyre, 215 Ill. 369, 374.

Civil damage statutes with reference to keeping dramshops are similar in purpose and therefore have a general similarity in their terms and provisions. The evident object is to punish those who furnish means of intoxication by making them liable in damages caused thereby. Such statutes are generally designed to embrace and include all injuries produced by the intoxication which legitimately result therefrom. To maintain an action under the Dramshop Act against the vendor of liquor, it is not necessary that action should also be maintainable against the intoxicated person. There are many cases where suits result under such act based upon injury to means of support due to the husband’s loss of earning power. It is sufficient if any person has been injured as provided by the act.

The case of Brockway v. Patterson, 72 Mich. 122, 40 N. W. 192, 1 L. R. A. 708, was an action by the wife under a Civil Damage Act relative to the keeping of dramshops, similar to that in force in this State. It was there argued by the defendant, that at common law, no action could be brought by the widow because of the death of her husband, and that the legislature recognizing this fact, provided by statute when recovery might be had for loss of life, and that within such statutory provisions, which were directly aimed at injuries resulting in death, were included all the remedies known to the law for civil damages growing out of the death of any person. The statute there urged by the defendant was one providing for survival of an action for wrongful death similar to the Injuries Act of this State. The court there said with reference to the above contention of the defendant, that the statute upon which the plaintiff: based her action did not mention the widow or speak of the death of an intoxicated person or of death resulting from intoxication. It was there said that the language used in the Civil Damage Act was broad and comprehensive and created a separate and distinct right of action to that created by the Injuries Act, and gave a right of action to the wife or other person injured, in person or property, or means of support, by reason of the intoxication of any person.

We have seen by the above authorities that in order to maintain an action under the Dramshop Act, it is not necessary that a right of action be maintainable under the Injuries Act for wrongful death. While on the other hand, the cause of action given by the Injuries Act is grounded on the deceased’s own rights, and if it appear that his death was the proximate result of his own negligence, there can be no recovery.'

In Hackett v. Smelsley, 77 Ill. 109, the contention of appellees as urged here, was urged there, namely, that the Injuries Act which was a previous statute to the Dramshop Act, provided a remedy for wrongful death caused by another; that such statute created the action in favor of the personal representatives of the deceased person; that recovery thereunder was for the benefit of the widow and next of kin; and that an action under the Injuries Act for wrongful death, and an action under the Dramshop Act, would not lie for damages resulting from wrongful death caused by the act of another. The court on p. 122 of the opinion in referring to the Injuries Act and in making a distinction between the remedies provided for by the two acts, states, that the statute creating the Injuries Act gives the right of action .only where the wrongful act causing the death is such as would, if death had not ensued, entitled the party injured to maintain an action to recover damages in his own behalf. It was there pointed out that the husband who had become intoxicated could not have maintained a right of action in his own behalf. The court suggests that such a contention as there urged by the defendant, and as herein urged by appellees, would be too strict in its application. In harmony with the expression of the court in the above case is that of O’Connor v. Rathje, 368 Ill. 83, 87, where the following language is used with respect to the statutory right of action created by the Dramshop Act and by the Injuries Act': “The Injuries act and the Dram-Shop act are not only separate and distinct but are based upon different powers of the commonwealth, . . . the rights created by the respective statutes do not rest upon the same basis. ’ ’

This is not an action for damages for the death of plaintiffs’ intestate as contemplated and provided for in the Injuries Act, but it is an action for injury to means of support to those enumerated in the Dramshop Act, occasioned by the death of plaintiffs’ intestate which was alleged to have been in consequence of the acts of an intoxicated person whose intoxication was brought about by appellees. By the provisions of the Dramshop Act, one risk incident to the liquor business is, that he who engages therein is made responsible for injuries the intoxicated person may inflict because of such intoxication.

Thus it appears that the Injuries Act does not permit recovery if the deceased’s death was the result of his own negligence, while under the Dramshop Act the right of recovery is not contingent upon the deceased’s exercise of due care and caution. Action under the latter act may be maintained even though the deceased could not have maintained an action for damages in his own right.

Therefore, we find the two acts to be separate and distinct, and that the rights created thereby do not rest upon the same basis, as announced in the case of O’Connor v. Rathje, supra. They are subject to different rules of "law respecting liability. The right of recovery under each appears to be separate and distinct and in no way founded upon or governed by right of recovery under the other. The rules of law and the measure of damages are different with respect to these actions. Exemplary damages are permitted under the Dramshop' Act and contributory negligence of the deceased is no bar to recovery. We thus find that the one action will lie where the other will not. This permits of but one conclusion — that they are independent actions — and hence, the one cannot be considered as exclusive of the other.

It is our conclusion, that the right of action under the Dramshop Act is a statutory remedy and lies as given by the statute without regard to the survival of actions for wrongful death as contained in the Injuries Act. The trial court erred in granting appellees’ motion to dismiss appellants’ complaint. The cause is reversed and remanded with directions to overrule appellees’ motion to dismiss appellants’ complaint, and for such further proceedings as the parties may elect to take.

Reversed and remanded with directions.


author: Mr. Presiding Justice Matchett

text:
    E. W. Brady, Appellee, v. E. B. Marshall, Appellee. Brady’s Stamp Shop, Inc., Appellant.
    Gen. No. 40,608.
    Opinion filed November 27, 1939.
    Rehearing denied December 11, 1939.

      Harry C. Diamond, of Chicago, for appellant; Alfred Diamond and Meyer Shapiro, both of Chicago, of counsel.
    Randolph Bohrer, of Chicago, for appellee; Milton J. Fink, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by intervenor, Brady’s Stamp Shop, Inc., a corporation, and defendant E. B. Marshall from judgments entered in the municipal court of Chicago on October 3,1938. On June 15,1938, E. W. Brady, plaintiff, entered a confession of judgment against Marshall in the municipal court of Chicago for $7,720, based upon a promissory note for $7,500, dated February 24, 1938, and executed and delivered to Brady on that date. August 4, thereafter, the judgment was opened up on petition of defendant Marshall. On August 26, plaintiff amended his statement of claim, setting up a fraudulent transfer of goods as ground for an attachment. The writ of attachment in aid issued and was levied on “five sealed and bound packages containing books of stamps.” The defendant Marshall traversed the grounds alleged for attachment. Plaintiff Brady answered the intervening petition, denying that the intervenor was the owner of the stamps. The issues between plaintiff and defendant as to the attachment and between the intervening corporation and the plaintiff as to the ownership of the stamps came on for hearing before Judge ■ Schiller. The trial was by the court. Evidence was taken; the attachment was sustained. There was a finding that the corporation intervenor was not the owner of the stamps levied on, and judgment accordingly was entered on October 3, 1938. From these judgments Brady’s Stamp Shop, Inc., and defendant, E. B. Marshall, appeal.

Manifestly, two distinct issues are presented by this appeal, any one of which is controlling. First, as between Brady and Marshall, whether the evidence justified a finding that there was fraud giving grounds to sustain the attachment, and secondly, as between the intervenor corporation and plaintiff, whether the intervener was the owner of the property levied on. An understanding of these issues requires a summary of material facts concerning which there is no dispute. Prior to February 24,1938, plaintiff Brady conducted a business at 111 West Jackson boulevard in Chicago known as Brady’s Stamp Shop. He was the owner and the business was that of buying and selling stamps. Marshall had been interested in an investment security business conducted at 29 South LaSalle street. He became interested in the stamp business through suggestions of B. F. Enelow, who was a dealer in stamps, and recommended to Marshall the purchase of Brady’s shop. After talks over the telephone Brady and Marshall met at Marshall’s office, and their 'negotiations resulted in the sale to Marshall of the Brady business and stock of goods at the price of $10,000. On that date a “bill of sale,” so called, was executed. It acknowledged the receipt of $2,500 of the purchase price in cash and a judgment note for $7,500, payable on or before one year from date with interest at 5% per cent. The writing recites that the sale included the stock on hand and good will. It also provides that Marshall shall employ Brady as his assistant in the business at a salary of $200 per month beginning March 1, 1938. By the writing Marshall warranted that when the business would pay operating expenses, including a salary of $200 per month to Brady and interest, he (Marshall) would in addition to the salary pay Brady a percentage of the net profits, such as they might agree upon. Brady promised not to engage in business as a stamp dealer within 50 miles of the city of Chicago for a period of five years and agreed he would not manage any such business in that territory where his name would be identified with it.

On March 4,1938, a charter for the incorporation of Brady’s Stamp Shop, Inc., was issued. The charter provided that the office should be at 111 West Jackson boulevard, where the business of Brady was formerly conducted. The capital stock was $4,000. Brady was the registered agent for the corporation; Marshall was its president. The charter was recorded in Cook county on March 19,1938. While no formal bill of sale of the business was, so far as the evidence shows, given to the corporation, it seems to have taken possession of the business and property. The first check for Brady’s salary was drawn by him on the corporation and was paid to him from its funds. Brady was the manager of the corporation and testified that he personally had the word “Inc.” added to the sign on the door indicating that the business there was conducted in the name of the corporation. This sign was placed there on March 4, 1938, and remained until September 1, 1938. Brady continued to draw a salary from the corporation up to June 15, 1938, when his employment ceased and this suit was begun.

The evidence shows without contradiction that this practical transfer of the assets of the stamp business purchased by Marshall from Brady to the new corporation was made without any attempt to comply with the provisions of the Bulk Sales Act (Smith-Hurd’s Arm. Stats, ch. 121½, sec. 78 [Jones Ill. Stats. Ann. 121.01]; Laws of 1913, p. 258, sec. 1) and the trial judge seems to have been of the opinion that this failure to comply with the statute was alone sufficient grounds for sustaining the charges of fraud upon which the attachment was issued. Failure to comply with the Bulk Sales Law is constructive fraud, but constructive fraud alone is not sufficient basis upon which, to issue ah attachment writ under the attachment statute. We understand it to be so held in the cases of Weare Commission Co. v. Dru ley, 156 Ill. 25, affirming 54 Ill. App. 391; United Paper & Trading Co., Inc. v. Allen, 222 Ill. App. 261; and C. & E. Marshall Co. v. Leon, 267 Ill. App. 242. While this is true, we do not doubt that failure to comply with the act together with proof of other circumstances tending to disclose an actual intention to defraud will justify the issuance of an attachment writ, and the plaintiff strenuously contends there is such proof in the record. In support of this contention it is pointed out that defendant Marshall filed an affidavit of merits to the suit brought on the note making charges which he afterward failed to sustain. The court, however, excluded evidence offered in defendant’s behalf which, if true, would have gone far to negative any actual intention to defraud the plaintiff. The trial court seems to have been of the opinion that oral evidence of conversations between Brady and Marshall, both before and after the execution of the bill of sale, with reference to the possibility of the organization of a corporation which would take over the business, was inadmissible upon the theory that these would violate the rule that oral evidence varying the terms of a contract reduced to writing is inadmissible. The record shows that upon the direct examination of defendant Marshall he was asked what conversation he had with Brady about incorporating the Brady Stamp Shop, Inc. Attorney for plaintiff objected on the ground “that nothing can be stated here in variance of a written contract . . . between Brady and Marshall. ...” Plaintiff’s attorney further said it was immaterial because assuming such a conversation “it does not take it out of the provisions of the Bulk Sales Act.” In response to questions by the court, attorney for defendant said he was trying to prove that Marshall told Brady he was going to incorporate the corporation using Brady’s name, and that Brady said, “All right”; that Marshall told Brady he was going to be the general manager of the corporation; that they would open up a bank account, and that Brady would work for the company at $200 per month; that this was done and that Brady continued to work under these conditions. It was argued that under such an arrangement with knowledge by Brady of the incorporation and transfer of the property to the corporation, an estoppel was created and against Brady, and that he could not under such circumstances take advantage of the noncompliance by Marshall with the Bulk Sales Act. The court stated he would have to sustain the objection, and attorney for Marshall then made this offer: “We offer to prove by this witness that he told the plaintiff in this case before the 24th of February, 1938, and after that date that there would be a corporation organized known as the Brady Stamp Shop, Inc., for the benefit of the same stockholders who were in the Kelly Foreman Co., which company the witness told Brady he was liquidating and had purchased the stamps with the money, proceeds thereof, and that this company, this Brady Stamp Shop Inc., upon starting business would employ the plaintiff as general manager, and that all the stamps on hand at that time would be transferred over to this new corporation, the Brady Stamp Shop Inc., and stock of that company would be issued for those stamps to the stockholders of the former Kelly Foreman Co. that was being liquidated, and that that was accordingly done and the corporation organized on the 4th of March, stock issued to the same stockholders who had stock in the liquidated company, and all of the stamps on hand at that time were transferred over to the new corporation, for which this stock was given in payment, and that the plaintiff agreed that that should be done, and that the plaintiff in this case agreed to that arrangement and started working for his new company, the Brady Stamp Shop Inc., as general manager and continued so, as the evidence shows, until the middle of June, 1938.” This offer of proof was objected to, and plaintiff made a motion to strike it which was sustained. The court remarked: “. . . Here is a statute that requires certain things to be done, and until those things are done that cannot be waived by any act on his part, except where reduced to writing and acknowledged by him in substitution of the legal requirements. ...”

As a matter of fact, the court upon the trial of the issue as to the ownership of the stamps levied on seems to have been under the impression that this also could not be established by oral evidence and excluded evidence tending to show that Marshall had borrowed money from a stockholder with which to purchase a collection of stamps for the business after the intervenor corporation took it over. It is clear that the court erred in these rulings. The corporation was not a party to the bill of sale, and it was not binding upon it. The agreement, if there was an agreement, that the business should be turned over to a corporation to be brought into existence was collateral and in no way tended to vary the terms of the written agreement between Brady and Marshall. Moreover, the conversations which it was desired to put into evidence for the most part took place after the execution and delivery of the bill of sale. The parol evidence rule was therefore not at all applicable. In Mulvey Mfg. Co. v. McKinney, 184 Ill. App. 476, at page 483, this court through Judge Baker said with reference to evidence of this kind: “No rule is better settled than that parol testimony cannot be received to vary, contradict, add to or take from the terms of a valid written instrument. But this rule is not violated by allowing testimony of a distinct, valid, collateral, contemporaneous or antecedent agreement between the parties which was not reduced to writing, where the same is not in conflict with the terms of the written instrument. In discussing* this rule, Taylor in his treatise on the Law of Evidence says, section 1038:

“ ‘The rule does not prevent parties to a written instrument from proving that either contemporaneously or as a preliminary measure they had entered into a distinct oral agreement on some collateral matter. Still less, as will presently be shown, does the rule exclude evidence of an oral agreement which constitutes a condition on which the performance of the written agreement is to depend.’

“The same author says, sections 1049-1157:

“ ‘It is almost superfluous to observe that the rule is not infringed by proof of any collateral parol agreement which does not interfere with the terms of the written contract, though it may relate to the same subject matter.’ ”

The opinion cites Greenleaf, sec. 284a; Lindley v. Lacy, 17 C. B. (N. S.) 578, 112 E. C. L. 578; Weis v. Rhodius, 87 Ind. 1, where both the English and American authorities are cited.

It is clear that in excluding* this evidence there was error for which the judgments must be reversed. In the absence of this evidence we will not pass on the question of whether it was sufficient to create an estoppel, although it would seem on principle plaintiff would be estopped to complain that notice was not given under the Bulk Sales Act, if he in fact participated in and took the benefits of a transaction with full knowledge that such notice was not given. So far as the evidence discloses he was the only creditor. For the error indicated the judgments are reversed and the causes remanded.

Reversed and remanded.

O’Connor and McSurely, JJ., concur.


author: Mr. Presiding Justice Matchett.

text:
    E. W. Brady, Appellee, v. E. B. Marshall, Appellant. Brady’s Stamp Shop., Inc., Appellee.
    Gen. No. 40,648.
    opinion filed November 27, 1939;
    rehearing denied December 11, 1939.
    Harry C. Diamond and Max Marine, for appellant; Alfred Diamond and Meyer Shapiro, of counsel; Randolph Bohrer, for appellee; Milton J. Fink, of counsel.
   Opinion by

Mr. Presiding Justice Matchett.

“Hot to be published in full.”


text:
    Peter Dina, Appellee, v. Dominick Passaglia et al., Appellants.
    Gen. No. 40,662.

      Opinion filed November 27, 1939.
    John A. Bloomingston, of Chicago, for appellants.
    Dillard B. Baker, of Chicago, for appellee.

       See Callaghan’s Illinois Digest, same topic and section number.

   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Defendants appeal from a judgment in favor of plaintiff for $1,000, entered on the verdict of a jury in a negligence action. The suit arose out of a collision which occurred at the intersection of South California avenue and 59th street in the city of Chicago, on April 11, 1935, when a motor truck owned by defendants and driven by their servant, collided with a Ford automobile owned and driven by the plaintiff. South California avenue runs north and south; 59th street east and west.

At the time of the occurrence the plaintiff was driving the Ford north on the east side of the avenue, and the truck was being driven west on the north side of 59th street. Two streetcar tracks ran east and west on 59th street. West bound cars ran over the north track; east bound cars over the south track. South California avenue was 60 feet wide.at the intersection. On the southeast corner of the intersection was a vacant lot. The driver of the truck could see the Ford car coming north, and the driver of the Ford, looking, could see the truck going west as it approached the intersection. The collision occurred in the northeast corner of the intersection, when plaintiff was about two-thirds way across it. The testimony submitted in behalf of plaintiff was to the effect that the truck was not in the intersection when he started to drive the Ford car across it; that he proceeded slowly because of another northbound car a few feet ahead of him; that defendants’ truck was driven into the intersection at a speed which caused it to strike the Ford automobile with a force which threw it 30 feet west of the intersection and over on to the north curb, knocking down and turning- over a news stand situated there. The collision occurred about 12:30 p. m. It was a rainy day, drizzling.

The driver of the truck testified that when he was about 75 to 100 feet east of South California avenue, he saw plaintiff’s automobile at the alley south of 59th street and about 175 feet from the street. He says that he was driving about 25 miles an hour; that he slowed down at the east curb but did not stop; that plaintiff’s car was then coming at a speed of 30 to 35 miles an hour and about 50 feet from the corner; that when he saw plaintiff was not stopping he put on the brakes and turned toward the north. After the collision the truck was on the northwest corner of the intersection. The fender on the left side of the truck struck the right side of the Ford, and the damage was such as to require $175 for repairs.

The complaint in three counts charged in the first and second counts that defendant drove at a dangerous and reckless rate of speed, and in a manner in violation of certain city ordinances. The third count charged wilful and wanton conduct. A special interrogatory was submitted to the jury. “Was the plaintiff guilty of any negligence which proximately contributed to his alleged injury?” The jury answered, “No.”

It is urged for reversal that the court erred in admitting in evidence an ordinance designating South California avenue at this place as a through street and other rulings on the admission and rejection of evidence ; that the verdict is against the manifest weight of the evidence; that plaintiff was guilty of contributory negligence as a matter of law; that the court erred in refusing and giving of instructions; that counsel was guilty of prejudicial conduct in interjecting the fact that defendants carried insurance before the jury; that the damages are excessive and the special finding contrary to the weight of the evidence.

As the judgment must be reversed and the cause remanded for another trial we shall not undertake to discuss the weight of the evidence, the conduct of counsel or the special finding. The controlling question in the case is whether the court erred in admitting in evidence over the objection of defendants the city ordinance of January 10, 1935, and instructing the jury upon the theory that it was applicable. As already stated, the evidence showed without contradiction that the driver of defendants’ truck did not stop when in driving westward he reached South California avenue. Section 2010 of the Traffic Code (see Busch-Hornstein Revised Code, 1931, sec. 2010) provides that the driver of any vehicle should come to a stop upon reaching any through street. On the trial plaintiff offered in evidence, and the court received over objection, the ordinance of January 10, 1935, which is as follows: “Be it ordained by the City Council that South California Avenue from the south side of west 63rd Street to the north side of West 51st Street, be, and the same is hereby designated as a through street; the Commissioners of Streets and Electricity shall install the necessary signs, and this ordinance shall be in force and effect from and after its passage and due publication.” Plaintiff also" offered in evidence, and over objection it was received, a communication from the city clerk to the city council, dated February 13, 1935, which read as follows: “Gentlemen: You are hereby advised that the ordinance listed below passed January 10, 1935, was officially published in the Chicago Journal of Commerce on January 26, 1935: First designation of South California Avenue from 63rd Street as a through street to 51st Street.”

Paragraph 1973, art. 2, ch. 38 of the Busch-Hornstein Code, 1931, provides: “Signs and signals penalty not to be imposed if sign not erected. The commissioner of public works shall determine and designate the character of all official warning and direction signs and signals. It shall be his duty to place and maintain, or cause to be placed and maintained, all official signs and signals herein required. . . .

“No provision of this chapter for which signs are required shall be enforceable against the alleged violator, if at the time and place of the alleged violation the sign herein required is not in proper position and sufficiently legible to be seen by any ordinarily observant person.”

The evidence shows without contradiction that the “stop through” signs were first placed at the intersection of 59th street and South California avenue on June 22, 1935.- The occurrence out of which the suit arises occurred on April 11, 1935. The evidence of all the witnesses for both plaintiff and defendants is to the effect that these signs had not been erected at the time of the accident. The plaintiff has filed an additional abstract showing there was a “caution” sign at the intersection. What the character of the sign was does not appear. Clearly, it was not the sign required by the ordinance. Chapter 38 of the Busch-Hornstein Code deals with traffic regulations and consists of 10 articles. Article 5 deals with the subject of “Through streets and one way streets, ’ ’ and section 2009 specifically designates the streets and parts thereof which are established as through streets. The ordinance of January 10,1935, in substance merely purported to add South California avenue from 63rd street to the north side of W. 51st street as one of these through streets. We think the provisions of section 1973 as to signs and signals applicable to this ordinance, but if it is not, the language of the ordinance itself, rightly interpreted, discloses the intention of the council that it should not go into effect after passage and publication until the necessary signs were installed. In ruling upon this evidence the court expressed the opinion that the postponement of the time at which the ordinance should go into effect was applicable only to proceedings brought for the penalty imposed for violation of the ordinance. This is not, as we view it, a reasonable construction. The ordinance of January 10,1935, does not, standing by itself, purport to impose any penalty at all. Presumably, this matter is covered by section 2031, article 10 of chapter 38 which provides: “Any person violating any of the provisions of this chapter, or any rule or regulation made in compliance therewith, upon conviction thereof, shall be punished by a fine of not to exceed two hundred dollars.” The ordinance of January 10, 1935, is, we hold, in pari materia with chapter 38 and to be construed in connection therewith.

The court not only erred in admitting the ordinance in evidence over defendants’ objection but further erred in instructing the jury that if it should find from the evidence under the instructions of the court that the defendants’ truck in question was driven on 59th street across the intersection of 59th street and California avenue at the time and place in question, without bringing the truck to "a stop before proceeding across California avenue, and as a result of said action the plaintiff’s ear was struck by the truck while plaintiff was proceeding across the intersection in a proper manner, the jury should find the issue for the plaintiff and assess the plaintiff’s damages accordingly. The admission of the ordinance and the giving of this instruction were, we hold, reversible error. For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.

0’Connor and McSurely, JJ., concur.


text:
    Mary Miller, Appellee, v. Edward P. Russell, Appellant.
    Gen. No. 40,682.

      Opinion filed November 27, 1939.
    Rider & Thuma, of Chicago, for appellant; Chester D. Kern, of Chicago, of counsel.
    J. Kentner Elliott, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action begun May 4, 1937, for personal injuries, upon trial by jury there was a verdict for plaintiff in the sum of $2,000, on which the court overruling defendant’s motion for a new trial, entered judgment and defendant appeals. It is contended for reversal that the evidence fails to disclose plaintiff was in the exercise of due care; that the evidence does not prove defendant was guilty of any negligence; -that the court erred in denying defendant’s motion for a new trial; and that the damages are excessive and the verdict the result of passion and prejudice.

Plaintiff, Mary Miller, was a widow about 67 years of age. She fell and was injured in the basement of defendant’s home on May 14, 1936. Less than a week prior to the time she was injured she was employed by defendant to serve as a cook. The home was on Astor street in Chicago, fronted east and was four stories high. The main entrance was on the east. To the right and north of this main entrance there was a door leading to the basement. This door opened onto a platform about 4 feet, 3 inches long and 4 feet wide. From the platform a stairway of twelve steps led to the floor of the basement. The steps were 10 inch tread with 7% inch risers. At the lower end this stairway connected with a passageway in the basement which ran from east to west to the elevator and on into other parts of the basement. On the wall to the right, as an entrant descended the stairway, there was a handrail or banister. From the foot of the stairway the passageway continued straight west about 17 feet to the door of an elevator leading to the upper floors of the home. Plaintiff’s room was on the third floor. About 13 feet, 6 inches from the foot of the stairway and in the passageway were two steps with 12 inch treads and 7 inch risers leading to the door of the elevator, which was directly in front of the steps and 4 feet to the west. At the steps there was a jog south of about 3 feet in the passageway. From there the passageway ran west leading to the laundry and other rooms. At the entrance, at the head of the stairs and in the center of the ceiling above the platform, was a light fixture with a bulb which was operated by a switch at the right of the entrance door. This switch also turned on another light in the ceiling of the basement, which was 13 feet to the west and south of the two steps in the passageway and 9 feet beyond the elevator. The light at the head of the stairs and the light in the ceiling southwest of the elevator were both 50 kilowatts. The floor of the basement was cement. There was a light in the elevator controlled by a switch inside of it, and another light just outside the elevator controlled by another switch outside of it. Plaintiff had been shown the lighting system and switches by Mrs. Johnson, who was her predecessor in defendant’s home.

The household of defendant consisted of himself, Mrs. Christie (his daughter), his grandson and a maid. Defendant also employed a janitor. The kitchen was on the second floor.

On the trial plaintiff was the only occurrence witness. She testified she was injured on Thursday night about 10:30 p. m. This Thursday was her “day out.” She went from the home at about 3:00 p. m. She says that in going out she took the elevator to the basement, then went east by the passageway and up the stairway to this side door. She says everything at that time was lighted up. She had received from her employer a key to the basement door, and the evidence justifies the inference there was a direction that she should enter and leave the home by this basement door. She returned about 10:30 p. m. on the evening of the same day. She opened the door with the key. She says, “It was pitch dark, everything.” She turned the switch at the head of the stairs with her right hand. She says she got “very little, a small light. It was a very small light”; that when she turned the switch, “Well, it is first a little light, it don’t light, you know, it is such a little light, it didn’t light.” “Q: ‘Did a light come on when you turned it?’ A: 6 Yes, it come on, but it was all dark. ’ ” Plaintiff says that she walked down the stairs and in the passageway toward the elevator, and at the two steps she fell. She lay upon the cement floor for about a half hour. No one came so she slid on her left side to the elevator, opened the door, turned on the switch in the elevator and was taken upstairs by it. She then pushed a button and called for help. The maid came and later told her defendant had called the doctor. The maid took plaintiff to plaintiff’s own room. The next morning the doctor said she would have to go to the hospital. She stayed in defendant’s home until Saturday, then she says, at the request of Mrs. Christie, she went to the home of her daughter. On Monday she was taken to Eavenswood Hospital, where she stayed over night. The next day she went to the County Hospital. Medical and other testimony shows that she sustained severe injuries including the misplacement of her shoulder. If defendant is liable the damages are not excessive.

The complaint charged defendant was negligent in two respects. First, in failing to have lights installed sufficient to light the passageway at the two steps and, secondly, in failing to install and maintain handrails in the passageway at the steps. It is suggested by defendant that the judgment should be reversed because the evidence fails to show that plaintiff at and before the time of her injury was in the exercise of due care. It is necessary in this State that there be affirmative proof of such care, but when there is such proof the question of the weight to be given to the evidence and the final question of whether a plaintiff is in the exercise of due care is for the jury. There is proof here from which the jury could find due care. Plaintiff’s testimony is to the effect that she turned on the light. It does not appear that there was anything else she could do except to walk carefully as possible under the circumstances. There is no suggestion that she was negligent in any particular way. It is suggested that when she noticed the way was dark she might have requested leave to enter by the main door. We are not impressed with this suggestion. The plaintiff was a servant and the way in which she was to enter and leave the home had been clearly indicated to her. The key was given her for that purpose. The contention that plaintiff was guilty of contributory negligence as a matter of law or the verdict against the weight of the evidence on this point cannot be sustained.

It is suggested and argued at length that defendant was not guilty of any negligence in the construction and maintenance of this passageway for the plaintiff. Plaintiff’s testimony is to the effect that she turned on the switch but that notwithstanding the light which appeared was insufficient. It was the duty of the defendant to furnish plaintiff a reasonably safe way in which she might enter the home where her work was to be done. A plat of the home prepared by Mr. Doyle, employed by the plaintiff for that purpose, is in evidence and pictures of the stairway and passageway procured by the plaintiff are also in evidence. These show the measurements as heretofore indicated. They also show a handrail on the stairway but no handrail at the two steps in the passageway. The light in the elevator and in the ceiling outside of it were not on, and no way was provided by which plaintiff could turn these lights on until she reached the elevator. She fell before she reached it. The plat of the basement in evidence shows that the light which was supposed to turn on from the switch at the top of the stairway was behind the elevator and 13 feet distant from the two steps. The questions of whether this construction was faulty and whether the light provided was sufficient were questions for the jury. There were no windows in the basement. In the absence of sufficient artificial light it would be at all times dark.

The defendant argues earnestly that the defects in the passageway were obvious and open and that defendant ns to these assumed the risk. Much reliance is placed on Burke v. Crimmins, 256 Mass. 14, 152 N. E. 43. In that case the electric lighting system in the home where plaintiff was employed had been disabled by a severe storm, of which the plaintiff had full knowledge. The employer showed plaintiff, who was only recently employed, her way upstairs by a lamp' or candle which the employer held in her hand. The plaintiff voluntarily attempted to return without any light, fell, and was injured. The Massachusetts court held plaintiff assumed this risk. The cases are distinguishable in that in the Burke case, plaintiff, without any direction, undertook to pass down the' stairway in a dangerous situation in a way different from that indicated by her employer as proper. Here plaintiff entered by a way prepared by the employer, and as the jury had a right to find, by his direction. A review of all the cases would unduly extend this opinion. Practically all of them will be found in the annotation to Eaton v. Wallace (Mo.), 287 S. W. 614, 48 A. L. R. 1291, 1295. _ The general rule that a master is bound to provide a safe place to work covers a situation such as appears in this case. 39 Corpus Juris, pp. 349, 350, secs. 468, 469.

Here the evidence shows defendant provided two ways for entering his home. He and his family entered by one way; the plaintiff, his employee, was directed to enter by another. The jury has found that the way prepared for plaintiff to enter was not reasonably safe. There was evidence from which the jury could so find, and also that plaintiff was ordered to use this way. It is true the defendant, the janitor, and Mrs. Johnson all testified in substance that on the morning after the accident the lights were in the usual condition. If this were true it would have been possible to prove that under the system adopted the light thrown on the steps where plaintiff fell was sufficient. There was no such proof. We hold the questions of the negligence of defendant, the contributory negligence of plaintiff and the assumed risk by the plaintiff were for the jury, and the judgment will be affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


text:
    Frances Merle Long White, Administratrix, With Will Attached of Estate of Carl Murray White, Deceased, Appellee, v. Chaney L. Parish, Appellant.
    Gen. No. 40,707.
    opinion filed November 27, 1939.
    Charles E. Loy, for appellant; Donald J. Seeley, for appellee.
   Opinion by

Mr. Presiding Justice Matchett.

“Not to be published in full.”


text:
    Daniel F. Lyons, Respondent, v. Charles Haumiller, Petitioner.
    Gen. No. 40,798.
    opinion filed November 27, 1939.
    Healy, Beverly & Funk, for petitioner; Irving G. Zazove, for respondent.
   Opinion by

Mr. Presiding Justice Matchett.

“Not to be published in full.”