author: Mr. Freshing Justice Matchett

text:
    Louis D. Cowen and Isador Becker, Appellants, v. David Epstein, Appellee.
    Gen. No. 32,294.

      Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Isador Becker, for appellants; Walter H. Shurtleff, of counsel.
    Julian J. Luster, for appellee.
   Mr. Freshing Justice Matchett

delivered the opinion of the court.

Cowen and Becker were complainants in the trial court and filed a bill averring that on March 25, 1926, being seized in fee simple of certain premises, they entered into a contract in writing with defendant Epstein for the sale of the same; that on April 1,1926, they delivered a good and merchantable abstract of title, showing good title in fee simple in the premises- in themselves; that on May 1 they made a demand in writing on the defendant that he perform, which he failed to do and refused to accept, a good and sufficient warranty deed, whereby the contract became null and void and the earnest money paid by defendant forfeited as liquidated damages; that on May 4, 1926, defendant caused the contract to be recorded, thereby clouding the title of the complainants. The bill renewed the tender of the deed, prayed that the contract might be declared null and void and removed as a cloud upon their title and delivered up and canceled, and that the earnest money might be decreed to be retained by them as liquidated damages; that they might receive reimbursement for expenses and attorneys’ fees, and have other relief. The written contract, the opinion of defendant’s attorney and the opinion of the Chicago Title & Trust Company were attached to the bill as exhibits.

The defendant answered, admitting the contract of purchase, denying that a good and merchantable abstract of title was delivered, and averring that the title tendered was defective in that it was subject to a condition “that no spirituous or malt liquors shall at any time be sold on said premises,” denying that the complainants had a right to forfeit the earnest money. He averred that he was always ready, willing and able to pay the purchase price on presentation of a good and merchantable title as - called for by the contract of purchase, claimed a vendee’s lien on the property, and denied that the complainants had been willing and able to consummate the sale of the premises in accordance with the terms and conditions of the contract.

Thereafter the defendant filed a cross-bill, reciting the proceedings theretofore had as heretofore described, averring that pursuant to the contract of sale he had paid as part of the purchase price $1,000, averring that he did not purchase the property subject to the restrictions as set forth, and that by reason thereof cross-complainant was in equity possessed of the right of lien on the real estate to secure the $1,000 which had been paid under the contract, together with lawful interest from March 25, 1926.

The cross-bill prayed that cross-complainant might be decreed entitled to a lien for the amount due him; that the same should be paid within a short time, in default of which the premises should be sold.

The complainants answered the cross-bill, admitting the restriction contained in a warranty deed in the chain of title to the effect that no spirituous or malt liquors might be sold on the premises, but denied Epstein contracted to purchase the property free and clear of that condition, and denied that they failed and refused to clear up the title in accordance with the terms of the contract or that cross-complainant was entitled to a lien for the amount of the earnest money paid under the contract or the return of the same. The answer further averred that Epstein failed and refused to perform covenants and agreements con-. tained in the contract; that they were and at all times had been ready, able and willing to perform on their part, and that they had been damaged by the refusal of Epstein to complete his contract and were in good conscience entitled to retain the earnest money.

The court found that the premises were subject to a condition as follows: “That no spirituous or malt liquors shall at any time be sold on said premises as contained in Warranty Deed from Martin Luther College to Laurentius C. Abrahams on, dated October 11, 1893, and recorded on November 21,1893, in Book 4351, page 289, as Document No. 1958233”; that the contract was not subject to this condition and that the objection was a good and valid objection; that cross-complainant had paid the sum of $1,000 as earnest money under the contract, but that he was not required to pay the balance or accept the title, and that there was then due to Epstein from the complainants $1,000, for which he was entitled to a lien. It was therefore decreed that cross-complainant should have such lien, and that unless the same was paid within ten days a master in chancery should sell the premises to satisfy the lien. The original bill was dismissed for want of equity.

The sole question in the case is whether the restriction that no spirituous or malt liquors should be at any time sold upon the premises was a valid objection to the title. Complainants contend that it was not and that the court erred in finding it so to be. They claim as applicable to the record the proposition that a condition running with the land does no'i create a defect in title when it binds the owner no further than he would be bound by the law in the absence of the covenant. Clement v. Burtis, 121 N. Y. 708, 24 N. E. 1013; Bull v. Burton, 227 N. Y. 101,124 N. E. 111, are cited.

Complainants also point out that conditions subsequent tending to restrict and defeat an estate are not favored, being construed strictly against the grantor, and can only be created by apt language which in itself creates such conditions; that such conditions do not work a forfeiture unless clearly expressed in un.equivocal language or necessarily implied; that all doubts as to the construction of a restriction must be resolved in favor of the natural rights and against the restriction; that all doubts should be resolved in favor of the free uses thereof for lawful purposes by the owner of the fee; that words will not entail a forfeiture of the estate unless it appears that this was the distinct intention of the grantor and the necessary understanding of the parties to the instrument. Cases are cited to these propositions which, for the purposes of this opinion, we may assume to be entirely correct.

However, this is not a suit to determine whether the condition which here appears has been in fact broken and the estate forfeited by reason thereof. If it were such a suit, it may be conceded that these propositions would be applicable. The question here is whether the vendors offered to the vendee such a title as he was obligated to accept under the contract. The contract contained no provision excepting the condition with reference to the sale of spirituous or malt liquors on the premises, and complainants must be supposed to have been familiar with the condition of their title. There being no exception to this restriction in the contract, the defendant was not obligated to take a title which was doubtful. The vendor in such a case has no right to demand the acceptance of a title which may mean a lawsuit in which he may lose. Street v. French, 147 Ill. 342.

May the condition which places a restriction upon this title be disregarded upon the theory that it binds the owner of the title no further than he would be bound by law in the absence of the condition? Appellants cite Clement v. Burtis, supra, in which a condition imposed upon a title that the grantee or his heirs would not carry on any business “which shall or may cause or become a nuisance to others owning lands or contiguous thereto” was held not to create a defect in the title because it bound the owner no further than he would be bound by law in the absence of the. covenant.

In Bull v. Burton, supra, a similar rule was announced. The complainants here contend that, since by reason of the enactment of the Eighteenth Amendment to the Constitution and by reason of the enactment of the Illinois Prohibition Act (see Cahill’s St. ch. 43, H 2, as construed in People v. Alfano, 322 Ill. 384; People v. San Filippo, 243 Ill. App. 146) the condition which is here placed upon the title does not amount to any restriction other than that which the law of the State and of the Nation imposes, and may therefore be disregarded.

A similar question was passed on in Isaacs v. Schmuck, 245 N. Y. 77. In that case the parties entered into a contract for the purchase and sale of real property located in New, York. As here, with certain exceptions named in the contract, the title was to be conveyed free of all incumbrances. An examination of the title disclosed that the vendor had acquired the same by a deed which provided that the vendee accept the same with a covenant that neither the vendee nor her heirs or assigns should “at any time hereafter permit or suffer any wine or malt or spirituous liquor to be sold upon the said premises or any part thereof * * The plaintiff rejected the title because of this and other restrictions, and suit was entered to recover the earnest money and attorneys’ fees. The defendant counterclaimed for reformation of the contract so as to provide for the acceptance of title subject to restrictive covenants and for specific performance of the contract as reformed. The plaintiff had judgment for the amount of his deposit with interest. On appeal the Appellate Division by a divided court held that the counterclaim stated a case for reformation and reversed the judgment but allowed an appeal. The court states in an opinion by Cardozo, C. J., that there was no cause for reformation. Upon the question as to whether the restriction with reference to the sale of wine or malt or spirituous liquors might be ranked as an incumbrance such as to affect the quality of the title, the court held that by reason of the Eighteenth Amendment and the National Prohibition Act, which forbid the sale of intoxicating liquors for beverage purposes, if the covenant did no more, its existence would not serve to make the title to the land unmarketable, citing Clement v. Burtis, 121 N. Y. 708; Bull v. Burton, 227 N. Y. 101. The opinion further stated, however, that the covenant did more than that; that under the Constitution and the Act of Congress wine and liquor might still be sold when an appropriate license was obtained; that there might be sales by pharmacists in limited quantities upon the prescription of physicians, or by wholesale dealers to buyers to whom permits had been issued, and that such sales, though lawful under the statute, would violate the restrictions to which the defendant’s land had been subjected. Reviewing quite at length the history of the law with reference to the control of the traffic in intoxicating liquors, the court held that it was impossible to say that the covenant would be anything less than an incumbrance and that it would be the same in effect as the prohibition of any other single business such as a restaurant or a bakery; that the buyer having bargained for complete dominion, the court might not require her to be satisfied with less.

This case cannot, we think, be distinguished on the facts from the case there decided. Neither the law of the United States nor the law of the State makes aj.1 sales of spirituous or malt liquors illegal. Either may be sold for lawful purposes and under conditions such as are prescribed by law. On the other hand, it may reasonably be contended that this restriction upon the title prohibits the selling of either spirituous or malt liquors at any time upon the premises, whether for lawful or unlawful purposes.

We conclude that the title tendered was not such as was required by the terms and conditions of the contract between the parties, and the judgment is therefore affirmed.

Affirmed.

O’Connor and McSurbly, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Erna H. Eggers v. Peter Adler et al., on Appeal of Joseph Seranella, Appellant. Abraham Shayne, Appellee.
    Gen. No. 32,312.
    Opinion filed February 27, 1928.
    Monahan & Monahan, for appellant.
    Kamfner, Horwitz, Halligan & Daniels, for appellee ; Max Daniels, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The appellant is the owner of the equity of redemption of certain premises and appeals from an order which directed that $2,480.68, held by the clerk of the court, representing rents derived from the premises, was the property of Abraham J. Shayne, and that the same should be turned over to him.

The material facts seem to be undisputed, and are that on October 30, 1925, a bill to foreclose a certain trust deed was filed, to which Shayne as the holder of a second mortgage, and Seranella as the owner of the equity, were made defendants: On November 20,1925, a receiver was appointed for the premises, and on February 15, 1926, the cause having in the meantime been referred to a master who took the proofs and reported, a decree of foreclosure was entered. It found the amount due to the complainant on the first mortgage to be $16,711.82 and interest, and allowed the complainant $1,000 for solicitors’ fees, and further found that there is due the defendant, Abraham J. Shayne, “the owner of a mortgage or Trust Deed on said real estate; said Trust Deed securing a note in the sum of Four Thousand Dollars ($4,000), executed by Attorney W. Ziolkowski and Nettie Ziolkowski; both note and Trust Deed dated May 7th, 1925; that the said Trust Deed was recorded * * * and that there was due to the defendant, Abraham J. Shayne, on said note and Trust Deed on the date of the Master’s Report herein, to-wit: January 27th, 1926, # * * the total amount * * * of Thirty-seven Hundred Seventy-nine Dollars and Thirteen Cents ($3,779.13)”; that Shayne had a lien on the premises secured by the trust deed described.

The trust deed appears a part of the record as “Exhibit No. 1.” Besides other usual covenants it provides that upon the filing of any bill of complaint in a court having jurisdiction, the court may appoint any suitable person receiver, with power to receive and collect the rents, issues and profits arising out of said premises and apply the same towards the payment of the expenses and costs in such proceedings, and any remainder upon the indebtedness.

March 19, 1926, the master filed his report of sale and distribution, showing that the proceeds of the sale were sufficient to pay the costs, expenses and the full amount due the complainant, Erna H. Eggers.

' April 26, 1926, on motion of the solicitors for the receiver, an order, which recites notice to the parties, approved the final account of the receiver, confirmed his acts and doings and ordered that the balance in his hands, amounting to $1,142.60, be distributed, $300 to the receiver for his services and $250 to his attorneys for their services, and the balance to the owner of the equity of redemption, and that the motion to discharge the receiver be continued until April 28, 1926. An order was also then entered that Shayne be given leave to file a cross-bill by that time and that leave be given to all parties not in default to plead, answer or demur thereto within 20 days. No question was raised in the trial court or is argued here as to the propriety of this distribution.

April 28, 1926, Shayne filed his cross-bill in which he set up the prior proceedings, the report of the master, the findings of the decree, the sale of the premises, and the fact that no money was realized to satisfy his claim or any portion thereof; that the makers of his notes secured by the trust deed were insolvent; that the premises were insufficient security for the debt, and he prayed that a deficiency decree might be entered in his favor and a receiver appointed to collect the rents, issues and profits for his benefit during the period of redemption. The makers of the second trust deed were made defendants to the proceedings and a summons prayed against them. On the same day an order was entered which recites that Shayne

May 11, 1926, Seranella answered the cross-bill averring that he was the owner in equity; that he neither admitted nor denied any of the other material allegations but demanded strict proof, and praying the same advantage of the answer as if he had pleaded or demurred.

June 22, 1927, the receiver presented his final report and account. An order was entered that $600 be paid to the receiver as compensation and a further sum of $600 to his attorneys, the balance remaining in his hands to be turned over to the clerk of the court and the receiver discharged.

July 1,1927, Seranella filed a petition setting up the prior proceedings, averring that he was not personally liable upon the mortgage indebtedness mentioned in the cross-bill; that there was no deficiency decree against him; that he was legally and equitably entitled to the balance of the rents and profits in the hands of the clerk, and praying that the same should be paid to him.

Thereafter, on July 16th, the order turning over the money to Shayne, as hereinbefore recited, was entered.

firmed, having expired. On this point appellant relies upon Burleigh v. Keck, 84 Ill. App. 607.

In that ease Keek, the appellee, was a party defendant to foreclosure proceedings as the holder of a second mortgage, and he filed an answer asking that he be paid the amount due under his second mortgage. He filed no cross-bill and asked no relief, save that he be permitted to participate in the distribution. Complainant obtained a decree adjudging his mortgage a lien and ordering a sale, which was had, and the master reported the satisfaction of the first mortgage but no surplus to apply on the second mortgage. After the expiration of the term of court at which the report of sale had been confirmed, Keck filed a petition asking for the appointment of a receiver, and an order was entered appointing a receiver who collected rents and profits during the period of redemption. Upon a contest between the assignee, the owner of the equity and Keck, the chancellor ordered the funds paid to Keck. This order was reversed in the Appellate Court, the opinion of the court stating that there were only two questions in the case: (1) as to whether Keck or Burleigh was entitled to the rents and profits; (2) as to whether Burleigh, by reason of having failed to prosecute his appeal from an order appointing a receiver could .then maintain such appeal. The court answered both questions against Keck, saying that as he had not intervened until after the expiration of the term of the final decree by answer, cross-bill or petition to obtain the foreclosure of his mortgage, the appellant, Burleigh, as owner of the equity, was entitled to the rents and profits under the authority of Davis v. Dale, 150 Ill. 239, upon which appellant here also relies.

The case is distinguishable in that no cross-bill was there filed and further in the fact that the order appointing a receiver, unlike the one in this case, did not provide that the rents should be collected for the benefit of the holder of the second mortgage. That ease was decided by the Appellate Court in the March term, 1899. In the March term, 1904, in Ruprecht v. Henrici, 113 Ill. App. 398, this court was again called upon to pass upon the question of whether a receiver had been properly appointed upon petition of the holder of a second mortgage in the absence of a cross-bill, and the court held that a defendant who had answered in a proceeding of that kind could not have such relief except upon a cross-bill, citing Smith v. West, 103 Ill. 332, and White v. White, 103 Ill. 438. Burleigh v. Keck, supra, however, does not seem to have been cited, or at least is not referred to in that case. The order appointing the receiver was, however, reversed. The cause having been remanded, the defendant filed a cross-bill and a receiver was again appointed to collect the rents during the redemption period. In that case, of course, the cross-bill was not filed until after the foreclosure decree under the original bill had been entered and after the mortgaged premises had been sold. The master’s report had been entered and a motion made to strike the cross-bill for that reason, but was denied. It was contended that the cross-bill was not a bill of foreclosure, but merely a bill to sequester the rents, and that this could not be done as the holder of the second mortgage had an adequate remedy at law. The Appellate Court, however, held that a court of equity, having jurisdiction of the subject matter, could not be ousted of its jurisdiction to settle matters of controversy growing out of the subject matter merely because in some one particular a remedy might have been had at law, and that, while in strict terms a further foreclosure and sale of the premises could not be had, there was still a fund growing out of the mortgaged premises which, in case of a deficiency decree, might have been applied to satisfy it; that the appellee as to the rents was equitably in the position of a mortgagee whose debt had not been paid in full by a foreclosure sale and who was entitled to collect the rents on a deficiency decree. The court cited Roach v. Glos, 181 Ill. 440, as applicable.

This case reached the Supreme Court and is reported as Ruprecht v. Muhlke, 225 Ill. 188. The court held that the holder of a junior mortgage was entitled to the rents only from the date of filing the cross-bill and that the owner of the equity was entitled to the same prior thereto. The order was reversed and the cause remanded with directions. In the course of its opinion the court said :

“The next contention of the plaintiff in error is, that the cross-bill of defendant in error was not filed in apt time, and for that reason it is urged the second appointment of Clettenberg as receiver was improperly made. The general rule is that a cross-bill should be filed in apt time, which would usually be before final decree. (Fread v. Fread, 165 Ill. 228.) In this case, however, no attempt was made, by virtue of the cross-bill, to interfere with the final decree, which had been entered and executed by a sale of the premises prior to the time the cross-bill was filed. The sole object of the cross-bill was to reach, through a receiver, the rents, issues and profits of the premises sold, during the period of redemption. In Chicago Artesian Well Co. v. Connecticut Mutual Life Ins. Co., 57 Ill. 424, which was a mechanic’s lien suit, a cross-bill was filed after a final decree, declaring the rights of the parties in respect to their several liens, had been entered; but said cross-bill was not filed with a view to interfere in any way with the operation of that decree, nor did it tend to delay the petitioner in securing his 'rights under said final decree, hence the cross-bill was regarded as filed in sufficient time. We think the cross-bill was properly filed.”

In Haas v. Chicago Building Society, 89 Ill. 498, it was held in a foreclosure case that a receiver might be appointed after final decree and foreclosure of sale upon due notice, the court saying that the necessity for the appropriation of the rents to the payment of the mortgage debt might frequently not appear until after both decree and sale; that the amount due was often a matter of dispute and could only be determined by the decree, and what the property would sell for could only be ascertained with certainty from the result of the judicial sale; that if an appropriation of the rents on the indebtedness was justified by the surrounding facts before the sale, there was no good reason why the same and more weighty facts existing after sale might not warrant a similar procedure; that the security was not exhausted by the sale, for there was a fund included in it which was secondarily liable. The court further stated:

“We hold, then, both upon the principles of equity that lie at the foundation of the chancery court, and upon authority, a receiver may sometimes be allowed after decree and sale, and that a mortgagee does not, in all cases, exhaust his security by a foreclosure and sale. It is, however, a power that the chancellor would be slow to exercise except in an extreme case, and to prevent palpable wrong and injustice.”

The appellant here attempts to distinguish this and other cases cited by the fact that in these cases the cross-bill was filed and the order appointing the receiver entered within the term at which the final decree of foreclosure was entered. This case is not distinguishable from Ruprecht v. Muhlke, supra, on that ground. The cross-bill there was filed several terms after the decree was entered. In any event, we fhinh that distinction could not avail. While the decree of foreclosure and sale is a final one, it does not necessarily dispose of all the issues in the case or the subject matter of the suit. As to undisposed of matters, the jurisdiction of the court would continue until the whole matter is disposed of, although, of course, further proceedings would not be allowed to change or modify in any way the final decree theretofore entered. The jurisdiction of the court of chancery over undisposed of matters does not end at the expiration of the term at which a particular final decree may be entered.

We think the court was not without jurisdiction and that the order was equitable and just, and it is affirmed.

Affirmed.

O’Connor, J., concurs.

Mr. Justice MoSurely dissents.


author: Mr. Justice MoSurely

text:
    Twenty-Five Fifth Avenue Corporation, Appellee, v. Walter O. Roach, Appellant.
    Gen. No. 32,169.
    Opinion filed February 27, 1928.
    Robert F. Kolb, for appellant.
    Schoen & Green, for appellee.
   Mr. Justice MoSurely

delivered the opinion of the court.

Defendant appeals from a judgment against him for $1,509.84 in an action for rent entered upon a directed verdict.

The defendant and another were lessees of an apartment in a building in New York City. The lease by its terms expired October 1,1926. There was an abandonment of the premises by the lessees and after crediting them with amounts received from other tenants, there remained due $1,509.84.

Defendant by his affidavit of defense does not question the correctness of this statement, but asserts as a defense a claim of set-off. The court was of the opinion that such a claim could not properly be made the subject of a set-off and instructed the jury accordingly to find for the plaintiff.

Defendant’s claim of set-off alleged that he was a citizen and resident of Illinois, while plaintiff was not a resident of Illinois and had no officer or agent in this State upon whom service of process might be had; that plaintiff unlawfully converted to its own use certain household furniture belonging to defendant in excess of the value of $2,500. Defendant thus sought to set off against an action on a written instrument a claim for damages, in excess of plaintiff’s claim, in a tort action of conversion. The trial court properly ruled this could not be done. From the early case of Edwards v. Todd, 1 Scam. (Ill.) 461, it has been the rule that a claim in tort may not be set off against a claim in contract, although sometimes this may be done in recoupment.

Defendant cites certain decisions of this court which he interprets as holding that, where the plaintiff is a, nonresident, any kind of claim may be set off. The cited cases do not support this. In all of these cases the set-offs were claims arising in contract. We are referred to no case holding that a claim arising out of a tort may be set off against an action on a contract.

Although the point is not made in defendant’s brief of points, some claim is made in argument that the finding and judgment are excessive by $400. No such claim was made in the affidavit of merits filed, and upon the trial, in answer to a question by the court, defendant’s counsel conceded the accuracy of the amount claimed by plaintiff, thus waiving every question except the right of set-off.

The trial court properly sustained plaintiff’s objection to defendant’s evidence tending to support his claim of set-off, and as no other defense was asserted, the peremptory instruction for a verdict properly followed. The judgment thereon is affirmed.

Affirmed.

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


author: Mr. Justice McSurely Mr. Justice O’Corroe

text:
    Lillie E. Goodman, Administratrix with the Will Annexed of the Estate of Frederick R. Goodman, Deceased, Appellee, v. Chicago & Eastern Illinois Railway Company, Appellant.
    Gen. No. 32,286.

      Opinion filed February 27, 1928,

      Edward W. Eawlins, for appellant; H. T. Dick, of counsel.
    James C. McShane, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

January 12, 1926, Frederick E. Goodman, married, about 50 years of age, while driving his automobile across the railroad tracks of the defendant, was struck by a passenger train and killed. The administratrix brought suit and upon trial had á verdict for $6,500. From the judgment thereon, defendant appeals. For convenience, Goodman hereafter will be called plaintiff.

The declaration charged in three counts, respectively, that defendant owned and operated the railroad in question and that it negligently failed to provide and maintain a flagman at the railroad crossing at the time of the accident and failed to furnish a certain automatic bell and signal lights, and, generally, the negligent and improper operation of the train, thereby striking plaintiff and causing his death.

The accident happened in the village of Glenwood, Cook county, Illinois, where Main street, running easterly and westerly, crosses the tracks of the defendant which run northerly and southerly. Plaintiff was driving west and the train was coming from the south. No automatic bell or gates have ever been maintained at this crossing. A flagman is kept there from seven o’clock in the morning until five o’clock in the evening, but no flagman has ever been kept there after five o’clock. The crossing is at grade, and there is a large cross-arm railroad crossing sign. The depot is north of Main street and east of the tracks. About 143 feet farther east, on the north side of Main street, is a store building. The nearest building to the crossing on the other side of the street is a dwelling approximately 110 feet south of Main street and 100 feet east of the most easterly rail. There is a street light just south of Main street, east of the track, about 70 feet east of the most easterly rail, and 200 feet farther south and east of the tracks is another street light, which is approximately 48 feet east of the most easterly rail. Immediately east of and parallel to the tracks is a road running north and south. Both of these street lights are east of this road.- There is a watchman’s shanty about 6 by 5 feet in dimension, standing approximately 35 feet south of the center of Main street and 9 feet east of the track. Except for these street lights and this shanty, there is an entirely unobstructed view from a point, at least, 100 feet east of the tracks southward along the tracks down to a whistling post which is approximately 1,700 feet south of the crossing. For 1,000 feet south of the crossing, the tracks are straight and then they begin to curve slightly to the southwest.

The accident happened shortly before six o’clock in the evening, at which time it was dark. There was a light snow falling. Two witnesses describe this snow as “wet.” It was a cold night around zero, which would seem to negative the testimony that the snow was wet. All agree it was just an “average snow.” Photographs of the location taken the morning after the accident indicate a light snowfall, in some places not sufficient to cover the ground.

Plaintiff lived at Homewood, Illinois,.which is about three miles west of Grlenwood. He was employed at East Chicago, Indiana. Lloyd Hemingway, who lived in Grlenwood, was also employed in the same place and for some time prior to the accident he and plaintiff had been going to and from their work together in an automobile. Hemingway lived on. the south side of Main street, about a block east of the railroad crossing. In the morning he would drive westerly over the crossing, go to Homewood, pick up plaintiff and proceed to their place of work. At night they would go home by the same way. For the two days before the accident they went to work in plaintiff’s car, following the same route. Plaintiff would come to G-lenwood, cross the tracks on Main street, go eastward to Hemingway’s home, and then retrace their route, going westward across the tracks to East Chicago. This route would be reversed in the evening. On these occasions there was no flagman at the crossing.

Upon the evening of the accident, after crossing the tracks and going eastward on Main street with Hemingway, and after having left him at his home, plaintiff immediately turned around and started back west over the crossing when he was struck by defendant’s northbound train. The crossing was well lighted. The headlight on the engine was burning and the whistle was blown. The automatic bell on the engine was ringing.

One witness testified that he crossed the tracks shortly before the accident; that as he came to the crossing, he brought his automobile to a stop and heard the train whistle to the south. He continued on across the tracks and went into the store and just as he got inside heard the crash of the accident.

Another witness testified that she crossed the tracks on the south side of Main street going east shortly before the accident and that as she approached the tracks she heard the whistle and saw the train coming when it was down at the curve; that she could see the headlight plainly; that after she crossed the tracks, she went to her home in the store building when she heard the noise of the accident.

Bobert Krause was an eyewitness. He had come west along the south side of the street and had started across to the store to deliver milk.. He was then about 150 feet east of the crossing when plaintiff passed him in his automobile going west. Krause heard the train whistle and stopped, turned and watched both the automobile and the train. When plaintiff got about 30 feet from the train, he slowed down to about 7 miles an hour and continued at that speed until he had almost reached the tracks, when he speeded up to about 9 or 10 miles an hour and ran in front of the train and was struck. When the witness first saw the train, it was between 200 and 250 feet south of the crossing and he heard the whistle and saw the headlight.

Plaintiff was driving a touring car with a windshield in front and glass windows on the side, so that the driver could look out on either side and in front. The speed of the train was estimated by some witnesses at 50 or 60 miles an hour. The engineer testified that he was running at the rate of 40 miles an hour. Both engineer and fireman testified that the automatic bell on the engine was ringing, the headlight burning and that, as they got to the whistling post, the road-crossing whistle was sounded.

There was evidence as to the railroad traffic and also the street traffic at this point. There were about 18 passenger trains a day and 2 or 3 freight trains per hour. The volume of vehicular traffic passing over the crossing was estimated at about 4 motor vehicles every 5 minutes, and this traffic was heavier between five and seven o’clock in the evening because of the factory employees going home.

Did the evidence warrant the jury in finding the defendant guilty of negligence as charged and that such negligence proximately caused plaintiff’s death? Plaintiff’s counsel argues that the duty to maintain a flagman or signal bell at the crossing was imposed by the Public Utilities Act, chapter 111a, sections 32 and 73, Cahill’s St. ch. Illa, W 47 and 92. We are not disposed to accept this argument, but are inclined to hold that, so long as the commerce commission had not ordered any flagman or signal bell to be installed and maintained at the crossing, it was a question for the jury to determine in this particular case whether the omission to supply the same was negligence. Without discussing this question further, we may concede that the questions of whether defendant was negligent as charged and whether such negligence was the proximate cause of plaintiff’s death were properly left to the determination of the jury.

A more serious question, confronts us, however, as to whether the evidence warranted the jury in finding that plaintiff was in the exercise of ordinary care for his safety and whether, he was guilty of negligence which contributed to the accident. From the foregoing statement of facts, it cannot reasonably be controverted that plaintiff continuously for, at least, the space of 100 feet along Main street east of the track had a clear and unobstructed view for such a distance south along the track that the slightest look in that direction would have revealed the approaching train in time for him to have avoided the accident. Neither the watchman’s small shanty nor the street lamp posts could hide the approaching train. The crossing whistle was heard by others nearby and the headlight on the engine was seen by them, and there was nothing to prevent plaintiff from hearing and seeing the same.

An argument is predicated upon the rule that a presumption of due care must be drawn from the natural instinct of self-preservation. Such a presumption can only obtain where there is no eyewitness to the accident, but where, as here, there is an eyewitness who saw the accident, evidence as to the habits of the plaintiff as to care and prudence was inadmissible and there can be no presumption of due care on his part. The witness Krause was an eyewitness and watched plaintiff’s -automobile, seemingly anticipating that, unless he altered his progress, he would be struck by the train. Petro v. Hines, 299 Ill. 236; Ingle v. Maloney, 234 Ill. App. 151; Anderson v. Chicago, R. I & P. Ry. Co., 243 Ill. App. 337.

The argument that plaintiff might have inferred from the presence of the watchman’s shanty that defendant maintained a flagman who would give the danger signal when a train was approaching is without merit. Plaintiff knew from previous experience that there was no flagman at the crossing at this time. Furthermore, he would not be relieved from the duty to exercise due care because of a presumption that a flagman would give a signal, especially when the presence of the flagman himself is based upon a presumption. As was said in Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154: “One who has an unobstructed view of an approaching train would not be justified in closing his eyes and crossing a railroad track in reliance upon the presumption that a bell would be rung or a whistle sounded. No one can assume that there will not be violations of the law or negligence of others and offer the presumption as an Axcuse of failure to exercise care. * * *” See also Jaroszewski v. Chicago Rys. Co., 241 Ill. App. 1; Specht v. Chicago City Ry. Co., 233 Ill. App. 384; Chicago, M. & St. P. Ry. Co. v. Bennett, 181 Fed. 799.

The presence of the snow is advanced as explaining the failure of the plaintiff to apprehend the approaching train. A driver of a motor vehicle is bound in using the highway to notice the conditions and observe the surroundings occasioned by climatic incidents. If the snow interfered at all with plaintiff’s vision, ordinary care and precaution in approaching a dangerous crossing would demand an increased degree of care, even to the extent of stopping his automobile. There is abundance in the record, however, to justify the conclusion that the snow was not sufficient to prevent plaintiff from seeing the train.

Similar cases have been frequently before our courts. In Burns v. Chicago & A. R. Co., 223 Ill. App. 439, there is a list of cases in which it has been held under similar circumstances that the accident was caused through the contributory negligence of the plaintiff. In Graham v. Hagmann, 270 Ill. 252, there is a comprehensive statement relating to such accidents:

“Railroads are engaged in the performance of a business of a quasi public nature, and in carrying out the purposes for which they are created must necessarily often operate their trains at such a high rate of speed that they cannot be brought to a sudden stop without endangering the lives and safety of those riding therein. They travel on fixed tracks and cannot turn aside, and the danger to be encountered in entering thereon is so well known and is a matter of such common knowledge, that when a traveler on a public highway fails to use' the ordinary precautions before driving thereon, the general knowledge and experience of mankind condemn such conduct as negligence.”

Many other like cases might be cited. Following these cases, we are of the opinion that the jury was not justified in finding that plaintiff was free from contributory negligence directly causing the accident, and that in this view of the case the judgment should be reversed and the cause remanded.

However, a more decisive question is presented. At the close of plaintiff’s evidence and again at the close of all the evidence, the defendant moved the court to instruct the jury to find the defendant not guilty, which, motions were denied and the tendered instructions refused, thus presenting the question for our determination whether it can be said, as a matter of law, that plaintiff was guilty of contributory negligence. While the courts of this State have usually left the question of due care on the part of a plaintiff to the determination of the jury as a question of fact, yet there are many decisions in this and other jurisdictions holding that, as a matter of law, plaintiff under similar circumstances cannot recover. Lake Shore & M. S. R. Co. v. Hart, 87 Ill. 529. The most recent decision dealing with like circumstances is Baltimore & O. R. Co. v. Goodman, — U. S. —, 72 L. Ed. —, 48 Sup. Ct. 24, by Mr. Justice Holmes, in which the court said:

“When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself in an emergency it was his own fault that he did not reduce his speed earlier or come to a stop. It is true as said in Flannelly v. Delaware & Hudson Co., 225 U. S. 597, 603, 32 S. Ct. 783, 56 L. Ed. 1221, 44 L. R. A. (N. S.) 154, that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the Courts. See Southern Pacific Co. v. Berkshire, 254 U. S. 415, 417, 419, 41 S. Ct. 162, 65 L. Ed. 335. ’'

This principle has been accepted and followed in Davis v. Pere Marquette Ry. Co., 241 Mich. 166, 216 N. W. 424, where the court said:

“Plaintiff was guilty of contributory negligence as a matter of law. There is a standard of conduct, based on the rule of reasonable care, to which all drivers of motor vehicles must conform or bear the consequences.”

This was also followed in Kutchma v. Atchison, T. & S. F. Ry. Co., 23 Fed. (2d) 183. Peculiarly pertinent to the instant case is the language in this opinion: “To listen only when one cannot hear an approaching train because other noises obstruct the sense of hearing, and to look only where the view of the approaching train is obstructed, is as careless and neglectful of duty as to not listen or look at all.” In New York Cent. & H. R. R. Co. v. Maidment, 168 Fed. 21, is an illuminating discussion of the new questions as to reciprocal rights and duties arising out of the use of the automobile with reference to grade crossings of railroads. The opinion notes the difference between the difficulties of controlling horses at grade crossings, on the one hand, and the absolute control of the driver of an automobile over his machine, on the other. The opinion concludes:

“It will thus be seen an automobile driver has the opportunity, if the situation is one of uncertainty, to settle that uncertainty on the side of safety, with less inconvenience, no danger, and more surely than the driver of a horse. Such being the case, the law, both from the standpoint of his own safety and the menace his machine is to the safety of others, should, in meeting these new conditions, rigidly hold the automobile driver to such reasonable care and precaution as go to his own safety and that of the traveling public. If the law demands such care, and those crossing make such care, and not chance, their protection, the possibilities of automobile crossing accidents will be minimized.”

The foregoing considerations seem to us convincing and we therefore hold that plaintiff was guilty of negligence directly contributing to his death, as a matter of law, and that the trial court should have directed a verdict for the defendant. For this reason the judgment will be reversed without remanding. Collins v. Kurth, 322 Ill. 250.

Reversed.

Finding of fact: We find, as a matter of law, that the plaintiff was guilty of negligence directly contributing to his death and that the trial court should have directed a verdict for the defendant because the evidence did not tend to establish a cause of action.

Mr. Justice O’Corroe

specially concurring: I agree with the conclusion reached by the majority of the court, but not in all that is said in the opinion. It is our duty to follow the law as announced by the Supreme Court of this State, although it is at variance with the law as stated in opinions of the United States Supreme Court. In my opinion, the rule laid down in the case of Baltimore & O. R. Co. v. Goodman, — U. S. —, 72 L. Ed. —, 48 Sup. Ct. 24, and cited with approval in majority opinion, went too far and is not in accord with the law of this State. Mr. Justice Holmes in the Goodman case says: “When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop for him.” This is a self-evident fact and so far as we are advised the contrary has never been contended. But the alleged negligence in this case, as appears from the opinion of the Circuit Court of Appeals, 10 Fed. (2d) 58, was the failure of the railroad company to maintain adequate signals at the crossing and not that the train should have stopped for the automobile to pass. As I understand it, the rule laid down in the Goodman case will bar a recovery in every case, as a matter of law, where the contributory negligence 'of the injured or the deceased person is a defense, and that it makes no difference how much the approaching train is obscured from view, nor the fact that the railroad company maintained no flagman or signals. The law as laid down in Flannelly v. Delaware & Hudson Co., 225 U. S. 597, is in accord with the law of Hlinois.


author: Mr. Justice O’Connor

text:
    Brighton Theatre Company, Appellee, v. Theodore Graf, Appellant.
    Gen. No. 32,140.
    Opinion filed February 27, 1928.
    A. S. and E. W. Froehlich, for appellant.
    Egbert W. Dunn, for appellee. '
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover $11,913.79 which it claimed was due by reason of the defendant’s breach of a contract. The case was tried before a judge and a jury. There was a verdict in favor of plaintiff for $5,467.62, from this plaintiff remitted $635.01, leaving a balance of $4,832.61, upon which judgment was entered and the defendant appeals.

The record discloses that plaintiff was constructing a moving picture theater on Archer avenue, Chicago, and on December 5, 1919, entered into a written contract with the defendant, whereby the defendant agreed to do the lathing and plastering in connection with the building. And the evidence on behalf of plaintiff tends to show that the consideration specified in the contract dated December 5, 1919, was $17,000; that on June 8, 1920, by agreement of parties, the consideration was increased to $18,400 and the date of the contract changed to June 8, 1920. There was evidence on the other side tending to show that no change was made, but we think this question is immaterial and, therefore, nothing further will be said on this point.

The evidence further tends to show that the price of labor and material advanced very materially after the date of the contract and that the defendant was demanding that he be paid more than the amount specified in the contract and that he threatened to abandon the work unless this was done. Thereupon on October 6, 1920, the parties entered into the following written agreement:

“We, the undersigned, hereby agree to submit the differences existing between us in regard to building at 4221-4227 Archer avenue to arbitration; each of us to select one man and the two men selected to appoint a third man as umpire and we agree to abide by the decision of the majority of said arbitrators. The said Arbitration Committee shall meet not later than October 8, 1920, to consider the differences between us and shall submit their judgment of the case not later than October 15, 1920.”

The evidence further tends to show that plaintiff appointed an arbitrator, but that the defendant failed to do so, although there is some slight conflict on the latter point. But there was no arbitration and shortly thereafter the defendant abandoned the work, the evidence being to the effect that he did so because the plaintiff refused to pay him more money for the lathing and plastering that he was to do in accordance with the terms of the written contract. It further appears that shortly after the defendant abandoned the work, plaintiff took it over and completed the lathing and plastering and that the last work was done about January 5, 1921.

On the 19th of March, 1924, plaintiff brought this suit, claiming that it had been damaged by reason of the defendant’s breach of the written contract in that it had cost plaintiff to finish the work $5,886.04 more than the contract price. A further claim was made that plaintiff, by reason of the defendant’s delay and failure to complete the work, had lost rents from August 1,1920, to January 5,1921, aggregating $6,027.75, making plaintiff’s total claim $11,913.79.

The written contract entered into by the parties provides that should the defendant refuse or neglect to supply “a sufficiency of properly skilled workmen, or materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence” that the architect should be at liberty, after five days’ written notice to the defendant, to provide such labor or material and to deduct the cost thereof from any money then due or to become due to the defendant under the contract. And further that if the architect should certify that the refusal or neglect of the defendant in the respect above mentioned was sufficient ground, then the owner (plaintiff) or architect should “also be at liberty to terminate the employment of the contractor,” (defendant) and to enter upon the premises and take possession for the purpose of completing the work and that if this were done, the contractor should not receive any further payment under the contract until the work was wholly finished, at which time, if the unpaid balance of the amount to be paid under the contract should exceed the expense incurred by the owner for finishing the work, then the excess should be paid to the contractor, but if the expense incurred by the owner exceeded the unpaid balance, then the contractor should pay the difference to the owner. The contract then contained the following: “The expense incurred by the Owner, as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such fault, shall be audited and certified by the Architect, whose certificate thereof shall be conclusive upon the parties,” provided, however, if either the owner or the contractor should dispute the architect’s decision, then the matter was to be referred to arbitration.

The defendant contends that the judgment is wrong and should be reversed because plaintiff did not attempt to comply with the provisions of the contract above referred to; that he was not given the five days ’ notice as provided in the contract which was a condition precedent to the right to take over and complete the job. And further that under the contract the work having been taken over by the owner, the additional expense incurred by the owner in finishing the work should be audited and certified to by the architect and that since this was not done, the judgment cannot stand.

In reply to these contentions plaintiff says that his suit is not brought upon the written contract entered into between the parties whereby the defendant agreed to do the lathing and plastering of the building, but that the suit is predicated upon the violation by the defendant of the written agreement entered into by the parties on October 6, 1920, and above quoted. And a further contention is that even if the suit be considered as brought upon the written contract, then the provision of the contract providing that the work might be taken over and finished by the owner, as above stated, does not apply because the defendant abandoned the work. As to the first contention of the plaintiff, we think it cannot be sustained for a number of reasons. In the first place, plaintiff’s statement of claim discloses the fact that plaintiff’s suit is bottomed on the written contract entered into between the parties. In fact the written agreement entered into October 6th between the parties to arbitrate their differences did not cover the question under consideration. The evidence all shows that the difference between the parties on October 6th, and prior thereto, was as to how much additional consideration should the defendant receive for completing the job. Moreover it appears from the record that plaintiff on May 16,1924, about two months after the suit was brought, filed a copy of the written contract entered into between the parties as being a copy of the contract sued on. As to the second contention made by the plaintiff, we are also of the opinion that while it is plausible, it cannot be sustained. The contract provides that in case the work is taken over by the owner and the job finished and the owner is thereby required to pay more money for the work than provided in the contract, the excess shall be paid by the defendant. It also provides that where the owner takes over the work the expense thus incurred by him “shall be audited and certified by the architect whose certification thereof shall be conclusive upon the parties.” The parties here by their written contract provided a method for determining the cost for the completion of the work and this method was to be conclusive upon the parties unless objection was made to the architect’s decision, in which case the matter was. to be determined by arbitration. The parties having by their contract expressly provided for a contingency such as the. one involved in the instant case, that method should have been pursued or some excuse given for not doing so. A case in point, where the provision of the contract was almost identical in terms with that before us, and where the facts were substantially the same as in the instant case, the court held that before a recovery could be had for work done in completing a job, the architect’s certificate, showing that he had audited and certified the work, must be produced. International Cement Co. v. Beifeld, 173 Ill. 179. (See' also American Bonding Co. of Baltimore v. United States, 167 Fed. 910.) In the Beifeld case as in the instant case it was contended that the provision of the contract did not apply where the contractor had abandoned the work, but this was held untenable. We think that case controlling here.

The judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

Hatchett, P. J., and HcSurely, J., concur.


text:
    Karolina Hodur and Joe Krafczyk, Appellants, v. Robert M. Cutting and T. T. Bartelme, Trustees of the Chicago Acceptance Company, a Trustee, Appellees.
    Gen. No. 32,163.

      Opinion filed February 27, 1928.
    F. D. Shoes, for appellants.
    Cutting, Moore & Sidley, for appellees; Charles S. Cutting and John Paulding Brown, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought an action against the defendants to recover the value of an automobile truck which it alleged the defendants wrongfully and maliciously took from the plaintiffs and converted to their own use. The value of the truck was alleged to be $2,000. The defendants filed an affidavit of merits, denying that they took and converted the truck. Afterwards the facts were stipulated and the cause submitted to the court without a jury. The court found the issues against the plaintiffs, judgment was entered on the finding and plaintiffs appeal.

So far as it is necessary to state them, the facts as stipulated are: That on January 28, 1925, 'the National Transit Company owned the truck in question and on that day executed its chattel mortgage, to secure its note for $2,065, to the Chicago Truck Sales Company, a corporation. On the same day the chattel mortgage and note were assigned to defendants. The note stated on its face that it was secured by a chattel mortgage. Afterwards, the date not appearing, the National Transit Company, the mortgagor, sold the truck to Frank Krafczyk, without the written consent of the owners of the note and mortgage. During the summer of 1925 the National Transit Company, the mortgagor, was forced into the hands of a receiver. The defendants then demanded the truck from Frank Krafczyk, who was in possession of it, but he refused to deliver it, but on the contrary concealed it from defendants. His refusal to deliver the truck was based on the ground that he had paid the National Transit Company the full value of the truck. On October 26, 1925, the defendants in the case at bar began a replevin suit against Frank Krafczyk for the possession of the truck, but the bailiff of the municipal court was not able to find the truck and the writ was returned “served on the defendant but property not found.” Thereupon, by leave of court, a count in trover was added and afterwards Frank Krafczyk was defaulted and on December 22, 1925, a judgment was entered against him and in favor of the plaintiffs in that case (defendants in the instant case) for $2,000. No part of that judgment has been paid, although the plaintiffs in that case caused to be issued two writs of capias ad satisfaciendum which were placed in the hands of the bailiffs for service. Six days after the trover judgment had been entered as above mentioned, Frank Krafczyk sold the truck to plaintiffs for $1,700, that being the amount plaintiffs had loaned him when he purchased the truck from the National Transit Company. Plaintiffs were given a bill of sale for the truck by Frank Krafczyk, which was duly recorded in the recorder’s office of Cook county on February 24, 1926. On May 3,1926, the defendants learned that the truck was in the possession of the plaintiff Joe Krafczyk and took it by force under their chattel mortgage. Two days later, on May 5th, they notified Frank Krafczyk that the truck would be sold at foreclosure under the chattel mortgage. Before the sale took place plaintiffs obtained the truck from the defendants on a writ of replevin in a suit brought by them against the defendants. That suit was afterwards dismissed because the plaintiffs in that case failed to file a statement of claim within three days from the date the suit was started, as required by the Municipal Court Act, Ca-hill’s St. ch. 37, 389 et seq. A writeof retorno hah endo was issued in favor of the defendants and after-wards plaintiffs returned the truck to the defendants. Plaintiffs then brought the instant case. It further appears that the note given to the Transit Company, the payment of which was secured by the chattel mortgage above mentioned, was payable in 12 equal instalments, and that before the truck was seized under the chattel mortgage above stated there was a default in one or more of the payments. It was further stipulated that the plaintiffs would “rely wholly upon the fact that the defendants obtained judgment in trover under the facts hereinbefore stated against the said Frank Krafczyk” and by the other facts as shown by the stipulation, plaintiffs contended that defendants had abandoned, waived, forfeited or otherwise lost any lien which they had by virtue of the chattel mortgage.

A careful reading of the briefs filed by counsel for plaintiffs discloses that plaintiffs’ contention is that although Frank Krafczyk obtained no title to the truck when he bought it from the National Transit Company, yet he obtained title to it when the defendants in the instant case obtained judgment against him for $2,000 in the trover action which they brought against him. In this connection counsel say, “Hence, up to the time a judgment in trover was rendered against Frank Krafczyk, he had no title. But who would say that he did not thereupon become possessed of a title which he could pass on to these appellants (plaintiffs) ? Could not the truck have been levied upon to satisfy the judgment and if so, would it not have to be his property before it could be levied upon? What fiction of law says that a plaintiff may have judgment for the value of the property and have possession of it too?” And again he says that plaintiffs, by bringing the action of trover, took “the fatal step of saying that the property now belongs to the defendant and ask for a judgment for its value and then still be allowed later to claim that by some miraculous provision of the law, the title has flashed back again into the plaintiff and that he may have possession of the property also.”

A great deal is said in the argument as to the several remedies a mortgagee has; that he may enter judgment on the mortgage note, foreclose the mortgage, bring replevin, etc., and may pursue these concurrently. But plaintiff says that the mortgagee cannot also maintain an action of trover. In Barchard v. Kohn, 157 Ill. 579, the court said (p. 586): “We have also held, that a chattel mortgage is a conditional sale; that, when there is default in the performance of the condition, the title of the mortgagor vests in the mortgagee; and that the mortgagee, upon default or condition broken, being invested with the legal title, may bring replevin, or trover, or reduce the property to possession, and proceed to sell under the power in the mortgage. * * * But even in this class of remedies the inconsistency, relied upon as the basis of the theory of/waiver, is more seeming than real. ’ ’ But we think it would, serve no purpose to discuss this proposition further because we are clearly of the opinion that theJitle to the truck did not vest in Frank Krafczyk by reason of the fact that the plaintiffs (defendants here) in the action of trover against him recovered a judgment against him for the value of the car, because we are clearly of the opinion that in an action of trover or for conversion, where plaintiffs have a judgment, the title to the personal property does not vest in the defendant until he has paid the. judgment. 38 Cyc. 2112; 28 Am. & Eng. Encyc. of Law (2nd Ed.) 738; Lovejoy v. Murray, 70 U. S. (3 Wall.) 129; Moss v. Marks, 70 Neb. 701; Atwater v. Tupper, 45 Conn. 144; Cramer v. Brownell, 166 App. Div. 456,151 N. Y. S. 1001; Russell v. McCall, 141 N. Y. 437; John A. Tolman Co. v. Waite, 119 Mich. 341.

In 38 Cyc. 2112, it is said: “In several jurisdictions title to property involved in an action for conversion is held to be transferred to defendant by the entry of judgment in plaintiff’s favor. But the prevailing doctrine is that title is vested in defendant only upon the full satisfaction of the judgment.” To the same effect is 28 Am. & Eng. Encyc. of Law (2nd Ed.), 738, where the rule is stated as follows: “There is conflict in the decisions with regard to the effect of a recovery in trover upon the title to the chattels converted. In the earlier cases the general rule was announced that a recovery in trover for the value of chattels converted vested of itself the title of the plaintiff in the defendant, without regard to a satisfaction of the judgment. In the later decisions, however, the rule, now generally ■recognized as the better doctrine, is that'the mere, recovery of judgment in trover does not vest in the defendant the title of the plaintiff, but the title is divested from the plaintiff and vested in the defendant only by a satisfaction of the judgment.” And in a very able opinion in the case of Lovejoy v. Murray, supra, rendered by Mr. Justice Miller of the Supreme Court of the United States, he reaches the conclusion announced in the authorities just quoted. He there says, quoting from Lord Ellenborough, in Drake v. Mitchell, 3 East 258: “A judgment recovered in any form of action, is still but a security for the original cause of action, until it be made productive in satisfaction to the party; andf therefore, till then, it cannot operate to. change any other collateral concurrent remedy which the party may have.” The court then analyzes a great many authorities which hold that in an action of trespass or trover the title does not pass until the judgment is paid, and continuing the court says (p. 133): “If we turn from this examination of adjudged cases, which largely preponderate in favor of the doctrine that a judgment without satisfaction is no bar, to look at the question in the light of reason, that doctrine commends itself to us still more strongly. The whole theory of the opposite view is based upon technical, artificial and unsatisfactory reasoning. * * *

“In reference to the doctrine that the judgment alone vests the title of the-property converted, in the defendant, we have seen that it is not sustained by the weight of authority in this country. It is equally incapable of being maintained on principle.

“The property which was mine has been taken from me by fraud or violence. In order to procure redress, I must sue the wrong doer in a court of law. But, instead of getting justice or remedy, I am told that the very act of obtaining a judgment — a decision that I am entitled to the relief I ask — the property which before was mine, has become that of the man who did me the wrong. In other words, the law, without having given me satisfaction for my wrong, takes from me that which was mine, and gives it to the wrong doer. It is sufficient to state the proposition to show its injustice. ’ ’

And in Moss v. Marks, 70 Neb. 701, the court said (p. 704): “Indeed, it has been repeatedly held that judgment for plaintiff in trespass or trover, without satisfaction, will not pass the title of the property involved to the defendant. Lovejoy v. Murray, 3 Wall. (U. S.) 1, 18 L. Ed. 129; Elliott v. Hayden, 104 Mass. 180; Bell v. Perry, 43 Iowa 368. This is said to be the accepted doctrine in this country. Cooley on Torts, 458. When the owner has elected to waive the tort and sue upon an implied contract to pay for the chattels, the rule is different. In 7 Enc. of PI. & Pr. p. 370, it is said, speaking of assumpsit in such cases: ‘As the theory of it is a transfer of title to the converted property from the owner to the wrongdoer or his vendee, it is the opposite of the theory upon which are predicated the remedies of trespass, trover, and replevin, which is that of continued title in the injured party. ’ ’ ’

In passing upon the same question the Supreme Court of Connecticut in Atwater v. Tupper, 45 Conn. 144, says (p. 148): “But we have no occasion to discuss this point, as we are satisfied that the better rule is that the title changes when the judgment is satisfied. The change of title is by operation of law; and the law will not deprive one of his property without his consent until he receives compensation.”

As stated in the Moss case, supra, where a person brings an action of trover, it is on the theory that he has title to the property and under the authorities above cited the title to a chattel does not pass by operation of law to the defendant in trover until the defendant has satisfied the judgment. So in the instant ease, since Frank Krafczyk has satisfied no part of the judgment rendered in the trover action against him, the title to the automobile truck did not pass to him but continued to be in the plaintiffs in that case (defendants here). And since Frank Krafczyk had no title to the property, none passed by the attempted transfer of the truck to the plaintiffs in the instant case. Plaintiffs, therefore, having no title or right of possession in the truck, cannot maintain the instant case, which is an action for conversion.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Hatchett, P. J., and HoSurely, J., concur.


text:
    John F. Larkin, Appellee, v. R. W. Stewart et al., Trustees of the Employees’ Stock Purchasing Plan of the Standard Oil Company, Appellants.
    Gen. No. 32,246.

      Opinion filed February 27, 1928.
    Hicks & Folonie, for appellants.
    Nat M. Kahn, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants seek to reverse a decree of the circuit court of Cook county, whereby it was decreed.that they pay complainant $2,263.

On' April 4, 1928, the complainant filed this bill against the Standard Oil Company, a corporation, and B-. W. Stewart, W. M. Burton and E. Gr. Seubert, trustees of the Employees’ Stock Purchasing Plan of the Standard Oil Company. The trustees will be hereinafter referred to as defendants. The cause was heard upon the bill of complaint, the answer of the Standard Oil Company and the answer of the defendants. No evidence being offered. The defendants filed their answer to the bill. Complainant’s exception to a paragraph of the answer was sustained. Thereupon the defendants, by leave of the court, filed an amended answer. Again a similar exception was filed and sustained and the defendants filed an amended and supplemental answer, to which the same exception was sustained. Thereupon the defendants elected to stand by their answer. The matter was set down tipon the bill and answer and a decree entered in favor of the complainant.

From the allegations of the bill it appears that complainant, a resident of Chicago, had been in the employ of the Standard Oil Company as a steam fitter and foreman of the steam fitting work for a period of about 13 years; that for the purpose of inducing its employees to continue in the steady and faithful performance of their duties, the Standard Oil Company proposed entering into a stock purchasing plan, which provided inter alia that its employees might make periodical payments from their wages to certain trustees and that the Standard Oil Company would then also pay to the trustees an amount equal to one-half of that paid by the employee; that certain of the employees, including the complainant, entered into the agreement and that the defendants were the trustees of the funds under the stock purchasing plan; that the plan extended over a 5-year period commencing March 31,1921, and that the money coming to the trustees from the employees and from the Standard Oil Company would be used by the trustees in purchasing stock of the Standard Oil Company on account of such employee; that the plan was to be terminated on the 31st day of March, 1926, at which time the trustees would deliver to each employee, who had agreed to the proposition, the shares of stock and all benefits derived under the plan during the 5-year period. Further allegations, of the bill are that complainant accepted the proposition and paid an average of $20 per month to the trustees, beginning March 31, 1921; that the Standard Oil Company paid to the trustees an amount equal to one-half of that paid by the complainant; that the trustees rendered annual statements to the complainant, showing the state of his account, the last covering the period ending March 31, 1925, which showed that $1,581.38 had accumulated from complainant’s earnings and the Standard Oil Company’s deposits with the trustees. It further showed that the trustees had purchased for the benefit of the complainant 32 shares of stock of the Standard Oil Company. It is further alleged that complainant continued to perform his duties as employee of the Standard Oil Company until the 31st of December, 1925, when he was discharged; that he remonstrated against the discharge and claimed that it was not justified. The bill then sets up a provision of the stock purchasing plan which is as follows:

“An employee who leaves the service of the Company voluntarily, or is discharged for good cause (of which the Trustees shall be the sole judges), shall thereupon cease to be a participant in the plan, and his account shall be closed by returning to him the amount of his deposit, with interest, at the rate of 6% per annum, or at the option of the Trustees, by assigning to him the equivalent thereof in stock of the Company, to be reckoned at the average cost thereof to the Trustees, during the period that he may have been a participant in the plan.”

The bill then alleges that the attempted discharge was improper because not based upon any “good cause”; that he was not given the usual notice of one week (he being paid weekly); that at the time of his discharge, there were only about three months remaining of the 5-year period covered by the stock purchasing plan; that after he was discharged (the date not being given) he tendered to the defendants the amount of his usual payments under the plan, but that they refused to accept it and that he was not permitted to resume his work with the Standard Oil Company; that at no time had he received from the defendant trustees any communication or declaration in any manner that they were of the opinion or had determined that the discharge of complainant by the Standard Oil Company was for “good cause”; and that, therefore, the failure of the trustees to give complainant such notice in equity and good conscience constituted a waiver of the right of the trustees to apply the provision of the employees’ stock purchasing plan hereinbefore set forth. It was further alleged that on the 31st of March, 1926, the trustees tendered to complainant in full satisfaction of all his claim $1,314.57, being at least $1,200 less than he was entitled to receive and he refused to accept the money tendered; that the trustees threatened to forfeit his rights, which were at least worth $1,200, by giving him a purported notice that they had determined his discharge was for good cause. The prayer was that they be enjoined from giving him such notice and for general relief.

The defendants, trustees, filed their answer, which, among other things, admitted that complainant was an employee of the Standard Oil Company and had entered into the stock purchasing plan; that the money complainant had contributed to the fund, under the stock purchasing plan, with interest thereon at 6 per cent computed to March 31, 1925, amounted to $1,314.57, which they tendered to him, but that he refused to accept it. The answer further set up that complainant was discharged about January 4, 1926; that in their judgment the discharge was for good cause and that, by virtue of such discharge, complainant ceased to be a participant in the plan, but was entitled to the money he had deposited with them with interest thereon at the rate of 6 per cent per annum. The answer further averred that the complainant did not perform his services for the Standard Oil Company satisfactorily, hut, on the contrary, abandoned his work and gave no reasonable excuse; that at divers times before he was discharged, he was late in reporting for work and was negligent in the performance of his duties; that a number of times he did practically no work, although assigned specific duties to perform; that he refused to obey instructions and made unreasonable claims against his employer, claiming the right to double time for which he was not entitled; that he made threats against his employer to secure the intervention of the union of which he was a member, to embarrass and stop the work of his employer; that he refused to accept orders from his superiors; that he criticized the policies of his employer and that he was a trouble maker. A copy of the stock purchasing plan is attached to and made a part of the answer. The defendant, the Standard Oil Company, filed its answer, in which, among other things, it set up that the complainant, about January 4, 1926, was discharged for good cause and that by reason of such discharge he was entitled to the return of the money he had deposited with the trustees, with interest thereon, which was tendered him, but which he refused to accept. The answer also sets up that the complainant did not perform his duties satisfactorily and specific derelictions are set forth substantially the same as those in the answer of the defendant trustees.

Complainant excepted to the answer of the trustees in that they had failed to specifically answer the aliegations of the bill which charged that they had not given complainant notice that the trustees had determined that his discharge was for good cause. The exception was sustained. In its supplemental and amended answer the trustees set up that in January, 1926, shortly after complainant was discharged he tendered to them payment under the stock purchasing plan which they declined and refused to accept on the ground that he had theretofore been discharged for good cause.

The court, after sustaining complainant’s exception to its amended and supplemental answer, entered a decree which recites that the matter came on to be heard upon the bill of complaint, the answer of the Standard Oil Company and the answer of the trustees. The exceptions of the complainant to the answer of the trustees having been sustained and the trustees having elected to stand by their answer, the court found that after complainant’s discharge it was the trustees’ duty to adjudicate, within a reasonable time whether such discharge was for good cause and to notify complainant of their decision and that “the trustees failed to declare in any manner to said complainant that said complainant was discharged for good cause,” and that the declaration of the trustees, made in their answer to the effect that they had determined that complainant had been discharged for good cause, was of no avail because not made within reasonable time. The decree made other findings, which we think unnecessary to mention here, the suit was dismissed as to the Standard Oil Company and it was decreed that the trustees pay to the complainant the amount he would be entitled to under the stock purchasing plan as though he had not been discharged.

The cause having been heard on a bill and answers, the answers are to be taken as true. Headen v. Cohn, 292 Ill. 210; Kingman & Co. v. Mowry, 182 Ill. 256; Roach v. Glos, 181 Ill. 440.

Complainant contends that the decree was entered pro confesso, but this is obviously unsound. The decree was entered upon the bill and answer and it is so expressly stated in the decree. A decree pro confesso would obviously be improper. But the complainant contends that in any event the decree is right and should "be affirmed "because under the terms of the stock purchasing plan it was the duty of the trustees to determine whether his discharge by his employer, the Standard Oil Company, was for good cause and that he be given notice of the time and place when the matter was to be determined by the trustees. We think this contention cannot be sustained. The provision of the stock purchasing plan, which is above quoted, provides that where an employee has been discharged for good cause, of which the trustees shall be the sole judges, he shall thereupon cease to be a participant in the plan,' and the money which he has deposited with the trustees, with interest thereon at the rate of 6 per cent per annum, shall be returned to him. There is no provision requiring the "trustees to take any action to determine whether his discharge has been for good cause and that he be notified by the trustees so that he might appear and present his side of the matter. But even if the trustees were required to determine that his discharge was for good cause, they did so a few days after his discharge in January, 1926, when he tendered to them payments under the stock purchasing plan and which they refused to accept, basing their refusal on the ground that he had been discharged. Moreover, on this record it is admitted that he did not perform his duties faithfully, but on the contrary that he was inattentive to them as appears from the allegations of the answers above mentioned. Complainant’s exception to the answer should not have been sustained. Under the record all that complainant was entitled to was the amount of money that he had deposited, together with interest thereon at the rate of 6 per cent per annum and which sum was tendered to him by the defendant trustees.

The decree of the circuit court of Cook county is reversed and the cause remanded.

Reversed and remanded.

Hatchett, P. J., and MoSurely, J., concur.


author: Mr. Presiding Justice Barry

text:
    Nathan Mathes, Appellee, v. William Barr Lumber Company et al. William Barr Lumber Company, Appellant.
    Opinion filed March 2, 1928.
    F. A. Reisner, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Judgment was rendered against appellant, in the trial court, on December 28, 1927. Under section 100 of the Practice Act as amended in 1927, Cahill’s St. ch. 110, 100, appellant should have filed a transcript of the record in the office of the clerk of this court on or before twenty (20) days before the first day of the present term. No transcript of the record was filed within the time fixed by the statute. Appellant presented a motion, supported by affidavit, for an extension of time within which to file a complete transcript, but when that motion was presented no transcript had been filed.

The law is well settled that one desiring an extension of time to file a transcript of record on appeal should file enough of the transcript to show a final judgment or decree and an appeal therefrom perfected upon which the court in term time, or one of the justices in vacation, may, for good cause, grant an extension to file the full transcript. Fonda v. Jackson, 203 Ill. 113; Cook v. Cook, 104 Ill. 98.

When appellant found that it would be unable to file a full and complete transcript of the record within the statutory time it should have procured a short record and asked for an extension of time before the statutory period had expired. That was not done and for that reason the motion was denied. Appellant now moves the court to set aside the order denying its former motion. It is suggested that the former motion and the affidavit in support thereof constituted a sufficient short record to give this court jurisdiction. We cannot agree with that contention. The statute requires an authenticated transcript of the record. Authentication by a certificate of the clerk of the trial court is essential under the section of the statute in question. Glos v. Randolph, 130 Ill. 245. Appellant also suggests that an appeal allowed by the trial court is, in contemplation of law, pending in the appellate tribunal the moment the appeal bond is executed and filed with the clerk of the trial court. While that is true, yet an appeal is not perfected in this court until an authenticated transcript of the record is filed within the statutory period or an extension of time is procured in the manner above indicated and before the expiration of the statutory period, and the tran-. script is filed within such extended period. Appellant’s motion to set aside the order of this court is denied for the reasons aforesaid, but appellant is granted leave to withdraw the transcript of the record now on file and to refile the same as a return to a writ of error. The appeal, however, is dismissed at appellant’s costs.

Appeal dismissed.