text:
    Frank Walton, Appellant, v. Charles H. Albers, Receiver of Basco State Bank, et al., Appellees.
    Gen. No. 9,308.

      Opinion filed February 24, 1942.
    Scofield, Bell & Bell, of Carthage, for appellant.
    JOHN W. Williams and Edward S. Martin, both of Carthage, for appellees.
   Mr. Justice Fulton

delivered the opinion of the conrt.

This is an appeal from an order or decree of the circuit court of Hancock county, finding that the complaint was without equity and dismissing the suit upon that ground. The action was a bill in the nature of a bill of review, or complaint under the Civil Practice Act and involves the validity of an agreement between the Harmony State Bank of Denver, Illinois, and the Basco State Bank of Basco, Illinois, both in Hancock county, entered into on April 3, 1929.

The transaction concerned a loan made by the Basco Bank to the Harmony Bank and the controversy here arises over the validity of a judgment secured by the receiver of the Basco Bank against the appellant as a stockholder of the Harmony Bank.

The facts show that by the terms of the contract dated April 3, 1929, the Harmony State Bank transferred, conveyed, assigned, set over and delivered to the Basco Bank, the assets of the Harmony Bank as described in the agreement in consideration of the assumption by the Basco Bank of the liabilities of the Harmony Bank as shown by certain schedules contained in the contract. The assets so transferred consisted of cash and cash balances due from banks’ personal loans in the sum of $51,957, which were to pass to the Basco Bank, and as general collateral security personal loans in the amount of $10,808.91, and a judgment note executed by the Harmony State Bank for the sum of $12,500, payable 1% years after date with interest at 5 per cent from maturity. This note was given to protect the Basco Bank against any loss on account of failure to collect or fully realize on the personal loans, and only so much of the note as should be required to make up the loss, if any, on the personal loans was to be paid by the Harmony Bank.

The Harmony Bank building, a tract of land in North Dakota and some notes were not transferred to the Basco Bank.

The agreement further provided that upon the execution thereof the Harmony Bank would retire from active business immediately and would transact no further business except what should be necessary to carry out the provisions of the contract. The Harmony Bank closed its doors on April 3, 1929, and was never opened for business thereafter.

There were further provisions in the agreement that any liabilities not listed and thereafter discovered should be paid or adjusted by the Harmony Bank; and, that if anything should remain after the liabilities assumed should be paid, the remaining assets should be turned back to an agent or representative of the Harmony Bank for its stockholders.

A further provision of the contract provided that upon the liquidation of the Harmony Bank, it would immediately surrender its charter to the auditor for cancellation, and that in the interim the Harmony Bank would not change its name, or give to any corporation, partnership or individual, the right to use its name or charter.

The above agreement was entered into prior to amendment of sec. 15, in 1929, which required that such contracts should be approved by the auditor of public accounts, but there was in full force and effect as shown by sec. 15, ch. 16a, Ill. Rev. Stat. 1927, relating to banks and banking, a provision that any bank could determine its affairs, distribute its assets among the stockholders and close up its business upon depositing with the auditor of public accounts an amount of money equal to the whole amount of debts and demands against it.

The record in this case proves conclusively that such deposit was not made by the Harmony State Bank and neither was the approval of the contract ever secured from the auditor.

Subsequently, on May 23, 1932, judgment by confession for $6,645.43, was rendered on.said $12,500 note against the Harmony State Bank in favor of the Basco State Bank which latter bank had by that time failed and was in the hands of a receiver. On May 23, 1932, execution was issued on said judgment and returned on August 26, 1932, “No property found.” It was claimed that the note had been reduced by the collection of assets to the amount for which the judgment was entered.

On May 26, 1932, a bill was filed in the circuit court of Hancock county, by F. J. Reu, receiver of the Basco Bank, against the stockholders of the Harmony Bank including Frank Walton, the appellant, who was one of the stockholders. The appellant did not appear in person or by attorney.

On August 10, 1938, without notice to the appellant, who had never been defaulted, the plaintiff in that suit, by leave of court, filed an amended complaint, and again on February 1, 1939, without notice to appellant, but by leave of court, filed a supplemental and secondly amended bill of complaint, and secured a rule on all defendants to answer within 10 days from April 17, 1939. On May 10, 1939, and without notice to appellant, the plaintiff in that suit took judgment by default against appellant, Frank Walton for $1,000, and costs, which was for the full amount of his stock liability.

On J anuary 31, 1940, the appellant filed the present suit in the circuit court of Hancock county, praying that the judgment against him for $1,000, be reviewed, and that said judgment be set aside and reversed.

In the pleadings there is not much controversy as to the facts but as to their effect. The appellant contends primarily that the agreement entered into between the two banks was ultra vires and void; that the Harmony State Bank was wholly without authority to execute and deliver the $12,500 note, and that the Basco State Bank was not in fact a creditor of the Harmony Bank within the meaning of section 6 of Article XI of the Constitution of the State of Illinois, and of sec. 6 of ch. 16% of the Ill. Rev. Stat. [Jones Ill. Stats. Ann. 10.06]; that the receiver of the Basco Bank is not a creditor of the Harmony Bank within the meaning of the Constitution and statutes above referred to, and that said receiver had no right, power or authority to maintain said suit against appellant. In short appellant’s claim is that the contract between the banks was ultra vires; that therefore it was void, and that a judgment arising out of such contract is also void.

The appellees defend the judgment on the ground that it is not void, even though, it may be erroneous, if the court had jurisdiction of the person of the appellant and of the subject matter of the suit, and had power to render the particular judgment which it entered, and such a judgment is valid and binding until reversed. They maintain that the present judgment became a final one and was never appealed from; that the defense of ultra vires must be raised by pleadings and proof and that after final judgment is entered it is too late to raise the question.

We feel that the contract entered into by the two banks on April 3, 1929, was ultra vires, and that the Harmony State Bank had no power or authority to enter into such an agreement. Since the passage of the amendment to section 15 of the Banking Act in 1929, contracts of that character amounting in effect to a liquidation must be approved by the State auditor of public accounts. Many cases have held that agreements of that nature which did not secure the approval of such State officer were ultra vires and void. Continental Illinois Nat. Bank & Trust Co. of Chicago v. Peoples Trust & Savings Bank of Chicago, 366 Ill. 366; First Nat. Bank of Woodlawn v. Watkins, 295 Ill. App. 572.

Prior to the 1929 amendment sec. 15, ch. 16a, Ill. Rev. Stat. 1927, provided as follows: “Any corporation with banking powers organized in pursuance of any general or special law of the State, or any consolidated corporation with banking powers as provided for by this Act, on depositing with the Auditor an amount of money equal to the whole amount of debts and demands against it, including the expenses of this proceeding, may determine its affairs, distribute its assets among its stockholders, resign its charter or certificate of incorporation, and close up its business, by a resolution passed at a meeting of its stockholders called for such purpose.”

Without complying with this statute, we feel the Harmony State Bank had no authority or power to enter into an agreement which contemplated liquidation.

In the case of Continental Ill. Nat. Bank & Trust Co. v. Peoples Trust & Savings Bank, 366 Ill. 366, the court very clearly discussed banking powers in similar situations, as follows: “One dealing with a bank is chargeable with notice of its powers and limitations. We have often held that the banking business is so impressed with a public interest that it is subject to strict regulatory legislation. Private banking is forbidden by law. National and State banks are creatures of the law having no powers but those which the law has conferred upon them. The powers vested in a bank are only such as are expressly granted and as are necessarily implied from the specific grant. Every power not clearly granted is withheld. Enumeration of powers granted implies exclusion of all others, and any ambiguity in the terms of a grant operates against the corporation and in favor of the public. If a power claimed is withheld, the withholding is to be regarded as a prohibition against its exercise.” People v. Wiersema State Bank, 361 Ill. 75.

Seemingly there has been no power given for one bank to liquidate the business and affairs of another bank according to its own will and determination prior to April 3,1929, except as indicated by statute.

If the agreement in this case was ultra vires and void, which we think it was, then the lending bank did not become a creditor under the meaning of section 6 of Article XI of the Constitution and had no power to bring suit against the stockholders of the Harmony State Bank and the judgment against appellant was not only erroneous but void. “Where a contract of a corporation is ultra vires it is not only voidable but wholly void and of no legal effect and cannot be ratified, nor can performance by the parties give it validity or become the foundation of any right of action upon it, nor is either party, by assenting to it or by acting upon it, estopped to show it was prohibited.” O’Connell v. Chicago Park District, 305 Ill. App. 294. People v. Wiersema State Bank, 361 Ill. 75.

No sequence of events, such as were followed in this case, would have the effect of making a void judgment valid, or of constituting the judgment against the appellant in the stockholders’ suit good. A judgment based upon a void judgment is valueless.

Therefore, the appellant had the legal right to attack the judgment either directly or collaterally. DeKam v. City of Streator, 316 Ill. 123. The other questions discussed in the briefs of counsel are not reviewed in this opinion because we feel that the controlling issue is that of ultra vires. This court believes that the contract under date of April 3, 1929, between the two banks was ultra vires and void; that the Basco State Bank was not a creditor of the Harmony State Bank and its judgment against said bank was void, and that the judgment against the appellant in the stockholders ’ suit was also void. The judgment of the circuit court is therefore set aside and reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Peter Bogden, Appellee, v. George Milauckas, Also Known as George Miles, Appellant.
    Gen. No. 9,322.

      Opinion filed February 24, 1942.
    Coy N. Overaker and S. S. DuHamel, both of Springfield, for appellant.
    Walter T. Day, of Springfield, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

On January 14,1925, one Marie Bamie, later married and known as Marie Patsie, obtained a judgment in a tort action against the defendant appellant, G-eorge Milauckas, later known by reason of change of name, as G-eorge Miles, in the sum of $3,500, and costs of suit.

From this judgment George Milauckas appealed to this court. The appeal bond was fixed at the sum of $4,500, and at the request of appellant Milauckas, the appellee here, Peter Bogden signed the appeal bond as surety, conditioned to pay the judgment if Milauckas did not pay the same.

On November 27, 1925, this court by remittitur reduced the judgment to the sum of $1,500, and affirmed the judgment for that amount.

This suit was docketed in the circuit court of Sangamon county as Gen. No. 42,037, and the judgment was recorded in Judgment Docket Z at page 263 (line !)• _

The plaintiff in that action, Marie Bamie, caused two executions to he issued and same were served on Milauckas and returned “Nulla Bona,” Milauekas filing as to each execution a debtor’s schedule. Marie Bamie Patsie then instituted an action of debt upon the appeal bond against Milauekas, the principal and Peter Bogden, the surety. On February 8,1926, she obtained judgment against both defendants in the sum of $4,500 debt with damages of $1,580.70. This suit bore the Gen. No. of 44,926 in the Sangamon county circuit court and the judgment therein was recorded in Judgment Docket Z, apparently under two alphabetical headings; one under letter “B” at page 37 against “Peter Bog-den, et al.,” and one under the letter “M” at page 263 (line 6) against “George Milauekas, et al.”

On May 7, 1926, Marie Bamie Patsie. caused an execution to he issued on the debt judgment, and the same was served on Peter Bogden, the next day demanding of him the sum of $1,568.70, and costs. Peter Bogden then made arrangements to pay the debt judgment but in doing so secured from Marie Patsie an assignment of the tort judgment, dated May 12,1926, and acknowledged by Marie Patsie on May 17, 1926. This assignment purported to “sell, assign, transfer and set over” to Peter Bogden, all the right, title and interest of Marie Patsie, in and to the tort judgment, including the right to “ask, demand, receive, issue execution or other writs, and take all lawful ways for the recovery of the money due, or to become due,” etc. It further conveys and assigns to Bogden “the judgment, and any and all sums of money that may be obtained by means thereof, or on any proceeding to be had thereupon,” and further stipulates that the assignor “will not collect or receive the same, or any part thereof, nor release or discharge the said judgment, but will allow and own all lawful proceedings therein,” etc.

On June 30,1926, on Judgment Docket “Z,” at page 37, indexed as follows: “Bogden, Peter, et al., ads. Marie Bamie Patsie, formerly Marie Bamie” appears the following, “Satisfied in full this 30th day of June, 1926. William J. Lawler, John G. Friedemeyer, attorneys of record for Plaintiff. ’

The appellee, Peter Bogden, has now instituted the present suit to revive the judgment, which he owns as the assignee of Marie Patsie, and to recover the amount due to himself as such assignee.

The complaint filed sets forth the foregoing facts and appellee bases his right of recovery on the following section of the statute: Chapter 83, section 24b of the Limitations Act, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.284(2)], which reads: “Judgments in any court of record in this State may be revived by scire facias, or by ordinary civil action in lieu of scire facias as provided by the Civil Practice Act, and all existing and future amendments thereto, or a civil action may be brought thereon within twenty years next after the date of such judgment and not after; . . .”

A motion and affidavit for summary judgment were filed with the complaint.

The appellant, George Milauekas filed an answer, affidavit and four special defenses. They admit the facts as set forth in the complaint but deny the effect of such facts.

The separate and special defenses are briefly the following:

1. That the satisfaction of the judgment in debt by Marie Bamie, on June 30, 1926, was in full for both the debt, judgments against Milauekas and Bogden and the first judgment, or the tort judgment, thereby became and was extinguished; that by reason of such satisfaction the appellant is not now indebted to anyone, and that there is no judgment existing to be revived or upon which collection can be made.

2. That accordingly Peter Bogden took and received nothing by the assignment of the original judgment from Marie Bamie.

3. That the five-year statute of limitations bars any action for subrogation or to force subrogation from Marie Bamie.

4. That the five-year limitation period also bars any action to revive and collect such judgment or any interest thereon.

The court heard the cause upon the motion for summary judgment and entered judgment against the defendant appellant and in favor of the plaintiff appellee in the sum of $2,723.55, from which judgment appellant appeals.

Appellant has cited a number of cases from foreign jurisdictions and from Illinois in support of his first and second defenses; that Marie Bamie obtained two judgments against Appellant to secure her damages sustained in the tort case; that she had a right to prosecute either of such judgments until the satisfaction thereof, but she did not have a right to obtain satisfaction upon both of such judgments-; that when she satisfied one of such judgments all her right, title and interest in and to both judgments became extinguished and she then had no right to assign either of such judgments to the appellee, Peter B ogden.

Of course Marie Bamie was entitled to only one satisfaction but a surety always has a right to protect his interests when called upon to pay a debt upon which he was not primarily liable. The cases of Kapischki v. Koch, 180 Ill. 44; Katz v. Moessinger, 110 Ill. 372; Cleiman v. Murphy, 34 Ill. App. 633, and Junker v. Rush, 136 Ill. 179, are in our judgment, clearly distinguishable from the facts in the present appeal.

The surety, Peter Bogden, was compelled to pay a debt which he did not owe, in order to protect his own property from the lien of an execution. Having paid such debt he was entitled to reimbursement from the principal debtor. The appellant, Milauckas, admits in his pleadings and affidavit that he, personally, has never paid the judgment which Marie Bamie obtained against him in 1925. He does not even contend that any of his money was used by Bogden in the purchase of the tort judgment. Neither does he claim that the appellee has ever been reimbursed by him or anyone else for the loss appellee suffered in his capacity as surety for the appellant. His only claim is that by some trick of the law or by some technical defense he is relieved of all obligation to pay.

In similar cases our courts have many times held that where the intent is to preserve the judgment in favor of a surety as against the principal debtor the taking of the assignment is conclusive evidence of the intent of the parties to keep the judgment alive and in force for the benefit and protection of the assignee. Allen v. Powell, 108 Ill. 584; Flagg v. Geltmacher, 98 Ill. 293; Walker v. Chicago, M & N. R. Co., 277 Ill. 451; Eagle Indemnity Co. v. Haaker, 309 Ill. App. 406.

’• In his third ■ separate defense appellant contends that because the appellée in his affidavit for summary judgment described himself in one instance as the “subrogee” of Marie Bamie, that therefore this action is one of subrogation and as such is barred by the five-year statute of limitations. An examination of the pleadings and the affidavit of appellee discloses that this is an action by an assignee asserting his rights as -an owner of a judgment to have the same revived and collected under the section of the Limitations' Act above quoted. The suit is not therefore barred by such statute.

In the fourth special defense appellant insists that interest was no part of the original judgment and that the court erred in allowing any interest as a part of such judgment because the five-year statute of limitations applies as to such interest. In support thereof appellant relies on the case of Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480. In that case an award had been made in a condemnation suit for $54,000, in February 1926. In October of the same year the city of Chicago paid the exact amount of the award which the property owner accepted and satisfied the judgment. Eight years later the property owner started a new and independent suit for interest due on the original judgment at the time the city made payment to him. The court held that such action did not come within the provisions of the Limitations Act authorizing an action upon a judgment within 20 years next after the date of judgment, as the action was not upon the judgment but was an independent claim for interest, and must necessarily be commenced within the five-year period. In the recent case of Tracey v. Shanley, 311 Ill. App. 529, the court held that accruing interest is not separated from the judgment and the statute of limitations does not run against it until the judgment itself is barred by the statute. Where a judgment is unpaid and unsatisfied, the statute provides for interest continuously until the date of satisfaction and in such cases the bar of the statute does not apply.

Finding no error in the judgment of the circuit court its action is hereby affirmed.

Affirmed.


author: Mr. Justice Riess

text:
    People of the State of Illinois for use of Vancil Motor Company, Appellant, v. Allin De C. Weaver et al., Appellees.
    Gen. No. 9,300.

      Opinion filed February 24, 1942.
    Flesher & Taylor, of Taylorville, for appellants.
    W. S. Greer, of Taylorville, for appellee; Harold Broverman, of Taylorville, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

This was an action of debt brought by the appellant in the circuit court of Christian county, Illinois, on the official bond of Allin De C. Weaver, a constable, and Lillian W. Hawes and T. B. Williams, sureties on his bond. Judgment was entered in favor of the defendants, from which plaintiff has appealed.

The complaint alleged and the proof established that Allin De C. Weaver, a constable, had served and executed a certain writ of replevin issued by a justice of the peace of Christian county, Illinois, by replevining an automobile from one Hubert Morse in a suit filed before said justice of the peace by the Universal Discount Company. The trial of the replevin suit before the justice of the peace resulted in a finding and judgment for the defendant. Upon appeal therefrom, the circuit court, upon trial de novo, found for the plaintiff company and entered judgment in its favor. Subsequent to the trial in the circuit court, the Universal Discount Company assigned all right, title and interest in the automobile replevied from Hubert Morse to the plaintiff, including all of its right to recover against Allin De C. Weaver, constable, and any right to recover upon his official bond as such constable.

The undisputed testimony established that the automobile was not delivered by the constable to the Universal Discount Company in compliance with the finding and judgment of the circuit court, upon demand therefor, nor to its assignee, the plaintiff appellant herein. Although a new demand was made on the constable to deliver the replevied property to the plaintiff appellant, the demand was never complied with and this suit was instituted against the constable and his official bondsmen seeking recovery of the value of the car.

The defendant appellee, Weaver, says that he delivered and returned the automobile to Hubert Morse" in accordance with the directions and orders given to him by the justice of the peace. This would be no defense, since the judgment of the justice of the peace was not final, as the appeal therefrom was duly prosecuted, and upon the trial de novo in the circuit court, judgment had been rendered against said Morse and in favor of the plaintiff company.

All of the defendant appellees herein contend that the plaintiff appellant has no cause of action as assignee because the suit is based upon a tort and was therefore not assignable.

Section 22 of the Illinois Practice Act (par. 146, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.-022]) expressly authorizes the assignee and owner of a non-negotiable chose in action to sue thereon in his own name after he has complied with certain conditions mentioned in said section. The term “Chose in Action” is of very comprehensive import and includes the almost infinite variety of contracts, covenants and promises which confer on one party a right to recover a personal chattel or a sum of money from another by action. A chose in action is “A right to receive or recover a debt or money.” Money,due on bond, note or other contract or damages for breach of covenant are defined to be choses in action. Kents Com., vol. 2, p. 437; Chaffin v. Nichols, 211 Ill. App. 109.

When the circuit court found that the Universal Discount .Company was entitled to the automobile which had been replevied, it immediately became the duty of the constable to deliver the automobile to said company or respond in damages for the value thereof. He refused to do so, and a cause of action accrued in favor of the Universal Discount Company, which judgment claim and right of recovery on the bond became assignable to the plaintiff appellant under the provisions of the above statute as a chose in action. Chaffin v. Nichols, supra.

We therefore hold appellees’ contention that the cause of action was one in tort and not assignable to be without merit and the cases cited to be inapplicable under the facts herein. Inasmuch as we may not determine from the conflicting evidence in the record the amount that the plaintiff is entitled to recover, judgment therefor will not be entered by this court, but the judgment of the circuit court is reversed and the cause remanded for further proceedings in accordance with the holdings herein.

Reversed and remanded.


author: Mr. Justice Biess

text:
    People of the State of Illinois, Defendant in Error, v. Harry B. W. Kallista and Anna Kallista, Plaintiffs in Error.
    Gen. No. 9,317.
    Opinion filed February 24, 1942.
    Wallace J. Black and Kenneth W. Black, both of Peoria, for plaintiffs in error.
    C. G-. Colburn, State’s Attorney, for defendant in error.
   Mr. Justice Biess

delivered the opinion of the court.

Plaintiffs in error, Harry B. W. Kallista and Anna Kallista, his wife, were tried, found guilty by a jury and convicted of the offense of simple assault in the circuit court of Cass county under an indictment charging them with an assault with a deadly weapon, to-wit: a gun, with an intent to commit bodily injury upon George Jockisch when no considerable provocation appeared and where the circumstances of the assault showed an abandoned and malignant heart.

The defendant, Harry B. W. Kallista, is a small man, past sixty years of age, and at the time of the occurrence in question, was suffering from a heart ailment. On December 5, 1940, he and his wife, Anna Kallista, drove to Bluff Springs, Illinois, for the purpose of mailing settlement for corn rent which was due him from tenants on farms owned by him and located in the vicinity of Beardstown. At that time, he was informed that corn was being hauled from one of his farms on which Julius Jockisch was a tenant and from whom rent was due. Later in the same day, he drove to this farm and while stopping his car, George Jockisch and his son approached Kallista’s car. There was some argument between them about a division of the corn, and the evidence as to what later occurred is very conflicting. Witnesses on behalf of the People testified that the defendant, Harry B. W. Kallista, pointed a gun at Jockisch and that Mrs. Kallista threatened Jockisch with the gun, while both defendants denied that any gun was pointed at Jockisch or that they had made any assault of any kind; both testifying that Jockisch, without any provocation, assaulted and severely beat plaintiff in error, Harry B. W. Kallista. Kallista suffered a broken nose, severe bruises and abrasions about his face and was confined to a hospital for approximately three days.

Numerous grounds are assigned for reversal; one being that the State’s Attorney is representing the complaining witness in a civil suit involving the same set of facts as are involved in this case. While his actions in this regard may be highly improper, it would not be grounds for reversal herein, since this would not be a proper forum in which to determine that question.

The record is voluminous and consists of 750 pages. It would serve no good purpose to discuss all errors assigned. Although the issues involved were simple, the court gave 50 instructions to the jury; a number of which have been repeatedly criticized by the Supreme and Appellate Courts of this State.

By People’s Instruction No. 12, the jury were told, “That intention may be inferred from the facts and circumstances shown by the evidence and if the pointing of a gun towards the person of George Jockisch was deliberately done, and was likely to be attended with dangerous circumstances, the malice or intention requisite to make out the charge in the indictment would be presumed.” The instruction assumes the pointing of a gun towards the person of George Jockisch. Further, in order to commit the crime charged in the indictment, it was necessary for the defendant to make an assault on the person of George Jockisch with intent to commit bodily injury, when no considerable provocation appeared, or where the circumstances of the assault showed an abandoned or malignant heart. Both the assumption of fact and the statement of the law, as contained in this instruction, is erroneous.

By Instruction No. 15, the jury were told, “That before the defendant could avail himself of the right of self-defense, it must appear that at the time and immediately before the drawing and pointing of the gun toward the person of George Jockisch, that the danger was so urgent and pressing that it was necessary in order to save his own life, or prevent his receiving great bodily harm; that the pointing and drawing of the gun towards him was absolutely necessary, or apparently necessary, etc.” The jury were further instructed that before a person in self-defense can be justified in resorting to a deadly weapon and using it in a deadly manner, it must appear to him, as a reasonable man, that he was in imminent peril of death or of great bodily harm. The rule of apparent necessity is also ignored in the first part of the instruction. But of greater importance is the fact that self-defense was not pleaded or claimed by defendants and is not an issue in this case, and it was erroneous to instruct the jury on this question. It was also improper for any of these instructions to assume that the defendants, or either of them, had pointed a gun at George Jockisch, as both defendants positively denied that they, at any time, made any assault upon the complaining witness by pointing a gun at him. Whether they had assaulted the complaining witness, as charged in the indictment, was a material allegation and a highly controverted fact in issue in.the case. The facts assumed in the instructions amounted to a finding by the court on a material element of the charge which the jury were sworn to try. It is not the province of the court, in giving an instruction, to assume the truth of any controverted fact, and such instruction, where the evidence is conflicting, becomes sufficiently prejudicial to require a reversal of a judgment of conviction. People v. Celmars, 332 Ill. 113, 163 N. E. 421.

Instructions No. 28 and No. 35 defining circumstantial evidence were given to the jury. Instructions stating the principles of law which apply where a conviction is sought upon circumstantial evidence have no application and are properly refused where the testimony in the case is direct. Neither of these instructions should have been given.

Instruction No. 47, given on behalf of the People, directed a verdict of guilty against the plaintiff in error, Anna Kallista, although all the elements of the offense were not included in the instruction.

Instruction No. 36, which tells the jury that the reasonable doubt which they are permitted to entertain must be as to the guilt of the accused on the whole of the evidence and not as to any particular fact in the case, has been repeatedly condemned and should not have been given. People v. Allen, 378 Ill. 164, 37 N. E. (2d) 854. Certain other of the numerous instructions are subject to criticism.

The plaintiffs in errors’ defense was that they had made no assault whatever on the complaining witness. If their testimony is true, George Jocldsch was the assailant and committed an assault on the plaintiff in error, Harry B. W. Kallista.

The evidence was highly conflicting, and in such a case, the instructions should be accurate and should not improperly influence the jury in determining questions of fact. People v. Celmars, supra. As a general rule, it is bad practice to offer voluminous instructions, and this is especially true in criminal cases wherein the issues of law and fact are simple and may be readily defined.

For the errors indicated, the judgment of the circuit court of Cass county is reversed and the cause is re- ■ manded.

Reversed and remanded.


text:
    Elmer Ertel, Incompetent Person, by D. L. McNeall, His Conservator, Appellant, v. Inez Ertel, Sued as Inez Casley, Appellee.
    Gen. No. 9,321.

      Opinion filed February 24, 1942.
    Lancaster & Nichols, of Quincy, for appellants.
    William J. Dieterich, guardian ad litem. Appellee also joins in brief.
   Mr. Justice Riess

delivered the opinion of the court.

A suit in chancery was filed in the circuit court of Adams county by D. L. McNeall, conservator of Elmer Ertel, to annul a marriage which had been entered into at Palmyra, Missouri, on October 3,1940, between the allegedly feeble-minded ward, Elmer Ertel, and the defendant appellee, Inez Casley. Trial was had before the court, and upon submission of certain questions of fact to a jury, there followed a verdict and decree finding that Elmer Ertel at the time of such marriage had “sufficient understanding to know.the nature of the contract of marriage and the duties and responsibilities which it created,” and the complaint was dismissed for want of equity. From such decree, the conservator has appealed to this court.

Since their marriage, Elmer Ertel and defendant have lived together as man and wife upon a farm owned by Elmer Ertel in Adams county. Ertel, by his guardian ad litem, and defendant, by counsel, filed answers and opposed the suit in the lower court and both oppose the action of appellant herein.

Appellant has assigned the following alleged errors on the part of the trial court: Submission to the jury of the issue of fact: “Did Elmer Ertel at the time of his marriage to Inez Casley on October 3, 1940, have sufficient understanding to know the nature of the contract of marriage and the duties and responsibilities which it created?” instead of the question submitted by plaintiff appellant: “Was Elmer Ertel at the time of his marriage to Inez Casley on October 3, 1940, a feeble minded person?”; error in giving certain instructions at the request of the guardian ad litem; in refusing to permit two of plaintiff’s witnesses to give opinions as to the mental condition of Elmer Ertel; in refusing to permit a physician to give his opinion as to whether any children born to the parties would probably or likely be mental defectives; in refusing to admit in evidence as an exhibit the order of the county court of Adams county entered October 22, 1940, adjudging Elmer Ertel to be a feeble-minded person; in permitting defendant Inez Casley to testify because Elmer Ertel was an allegedly feeble-minded person; in permitting the guardian ad litem to cross-examine Elmer Ertel as to matters alleged to be beyond the scope of the direct examination or by leading or suggestive questions; in admission of certain documentary evidence offered by the guardian ad litem; in failure of the court to disregard the verdict and make finding that Elmer Ertel was feeble-minded and that his marriage was absolutely void; in overruling motion for new trial and in entering judgment dismissing the complaint for want of equity.

The principal and controlling assignment of error discussed in the respective briefs of the plaintiff conservator on the one hand and of the guardian ad litem and appellee on the other concerns the construction and application of a Missouri statute (sec. 2974, Rev. Statutes of Missouri 1929, Yol. I, pp. 883, 884 and sec. 3361, Rev. Statutes of Missouri 1939, Yol. I, p. 781) in effect at the time of the marriage, which provides in part as' follows: “All marriages — between persons either of whom is insane, mentally imbecile, feeble-minded or epileptic, are prohibited and declared absolutely void.”

Numerous witnesses were examined and heard on behalf of the respective parties, the details of whose testimony need not be given here. Some of the lay witnesses detailed facts concerning the childhood, school life, ability to carry on business transactions; labor and work upon the farm, habits and temper of Elmer Ertel, and in some instances were permitted to express an opinion based upon such detailed facts as to his mental capacity and condition, while in other instances, wherein insufficient or irrelevant facts were related, the court sustained objections to such expressions of lay opinions. From an examination of the abstract and record, we find no prejudicial error in the trial court’s rulings thereon. When a lay witness, before expressing an opinion, details specific and relevant facts as a foundation therefor, his opinion based thereon as to the person’s mental condition may be expressed; the sufficiency of the facts justifying the answer being largely a matter within the sound discretion of the trial court, and the probative value of such opinion may be appraised by the jury. Martin v. Beatty, 254 Ill. 615, 98 N. E. 996; Graham v. Deuterman, 244 Ill. 124, 91 N. E. 61. Both parties offered such evidence.

The medical testimony included that of the managing officer of the Lincoln State School and Colony, who testified concerning Ertel’s mental capacity, habits and ability to work and stated that in his opinion, Ertel was not insane but was graded as a high class mental defective.

Certain allegedly eccentric conduct of Ertel in childhood was detailed by some witnesses, among them being an incident wherein certain school children had ridiculed Ertel, resulting in resentment and a fight between Mm and another boy or boys. The incident is construed in opposite ways by different witnesses. The testimony by his school teachers and some of the students tended to show that he was unable to entirely carry on the required school work; that he had been unable to satisfactorily accomplish the course of study required of average children to advance beyond the fifth grade. On one occasion he gathered a supply of gasoline in numerous containers on the farm which was removed as a source of danger by others. Certain other purported instances of abnormal conduct of Ertel were detailed. As to his mental condition, opposite opinions were expressed by different witnesses.

On his behalf, it was shown' that he had raised and marketed certain small crops in a satisfactory manner while on the farm with his late father; that he drove an automobile for a number of years and worked as a farm hand in the neighborhood in a satisfactory manner to a number of his employers; that at the time of his marriage he was aged thirty-two years and that his wife was a widow with two children; that he had inherited an interest in lands and some personal assets from his father and subsequent to his marriage, had acquired the interest of a sister in the 120-acre farm upon which he and his wife now reside. From the mass of testimony offered by respective parties, the jury arrived at its affirmative answer to the written interrogatory submitted as hereinabove indicated.

It is conceded by the respective parties that the validity of the marriage depends upon the provisions of the Missouri statutes and that a construction thereof by the Courts of Review of Missouri, the place of the contract, is relevant herein. This rule is recognized and applied in Illinois in the cases of Reifschneider v. Reifschneider, 241 Ill. 92, 89 N. E. 255; Stevens v. Stevens, 304 Ill. 297, 136 N. E. 785, and Fowler v. Lamson, 146 Ill. 472, 34 N. E. 932. The rule applies except in cases of marriages contracted in disregard of the statutes of the state of domicile. Stevens v. Stevens, supra.

In the case of Reifschneider v. Reifschneider, supra, wherein the legality of a marriage entered into in the State of Indiana was in question, the Supreme Court of this State held that at page 97: “When a marriage is shown the law raises a strong presumption in favor of its validity, and the burden is cast upon the party objecting to the validity to prove such facts and circumstances as necessarily establish its invalidity. Jones v. Gilbert, 135 Ill. 27.” To the same effect are Flynn v. Troesch, 373 Ill. 275, 26 N. E. (2d) 91, and Potter v. Clapp, 203 Ill. 592, 68 N. E. 81.

Feeble-mindedness, like insanity, is a term that is difficult to define, and proof of its existence is largely one of fact based upon the particular facts and circumstances of each case. There is no clear dividing-line between competency and incompetency, and each case must be judged by its own peculiar facts. Hagenson v. Hagenson, 258 Ill. 197, 101 N. E. 606; Flynn v. Troesch, supra.

While the parties to a marriage contract must have sufficient mental capacity to enter into the status, and proof of feeble-mindedness will render such contract void under the provisions of the Missouri statute, supra, such proof of lack of mental capacity must be clear and definite. Slais v. Slais, 9 Mo. App. 96. It was held to be sufficient in Illinois if the contracting party has sufficient mental capacity to “understand intelligently the marriage contract into which he entered and the obligations which it imposed upon him.” Hagenson v. Hagenson, supra. A mere weakness of intellect is not deemed sufficient to invalidate a marriage if the parties are capable of comprehending and understanding the subject of the contract, its nature and probable consequences. Westermayer v. Westermayer, 216 Mo. App. 74, 267 S. W. 24; Hagenson v. Hagenson, supra.

The guardian of an insane person can make all ordinary contracts for and on behalf of his ward, bnt he has no power to make a marriage contract; such contract between the ward and his wife being by its nature personal to the persons entering therein. Westermayer v. Westermayer, supra; Payne v. Burdette, 84 Mo. App. 332.

The attitude of the conservator was not in some respects looked upon with favor by the trial court. It appeared from his examination that he had acted as administrator of Ertel’s father’s estate upon a certificate of nomination signed by Ertel, the only resident child; and in his testimony, he stated that in his opinion Ertel was mentally competent to understand and make such nomination. It was further testified to by both Ertel and his wife that prior to their marriage, the conservator met them while riding home on a Sunday in a buggy and suggested that they marry and that Elmer Ertel purchase the 60 acre or half interest of his sister residing in Iowa to the farm and that they move upon the same; that subsequently the conservator, a banker, prepared the papers and carried through such transaction conveying the sister’s interest in the farm to Elmer, whereon he has moved and resides since such marriage; that the conservator procured an order for the purchase from the probate court and completed and partly financed this transaction and prepared and approved certain papers in connection therewith. While parts of the conversation are denied by the conservator, the fact remains that he carried through all of these transactions with or on behalf of Elmer Ertel and that since then he, with support of certain relatives of Elmer Ertel, initiated and prosecuted the suit seeking to annul the marriage. It is the opinion of this court that under the statute of Missouri, as construed by the courts of that State and under similar construction of statutes in this State and the evidence herein, the contract of marriage between these parties was valid and not void ab initio as contended by appellant; that if Elmer Ertel possessed sufficient mental capacity to understand the nature, effect, duties and obligations of the marriage contract into which he was entering, the marriage contract between such parties was binding, the parties being otherwise legally competent to enter into the marriage relation. No other ground of invalidity was urged herein.

The burden of proof rested on the conservator who filed this suit against the defendant to affirmatively sustain the cause of action upon the issues joined and upon the lack of mental capacity of Ertel to lawfully enter into the contract in the State of Missouri, and the subsequent collateral finding in the county court as to his mental status or alleged feeble-mindedness was neither competent nor controlling thereon. It may be noted that the latter order was entered on October 22, 1940, 19 days after the marriage of Elmer Ertel on October 3, and that the defendant herein was not a party to that proceeding, nor did that court have jurisdiction to annul a marriage contract. Its decree was not binding upon the Chancellor in the circuit court (Wormington v. Wormington, 226 Mo. App. 195, 47 S. W. (2d) 172), nor do we deem the same to be res judicata upon the issues joined in this proceeding.

In Illinois, less mental capacity is required to enable a person to enter into the marriage contract than is required for the execution of ordinary business transactions. Flynn v. Troesch, supra; Hagenson v. Hagenson, supra. There was testimony before the court and in the record tending to establish that Ertel was capable of transacting and did engage in numerous ordinary business transactions and did perform work and labor in an acceptable manner to Ms employers.

It is a matter of common knowledge that many married men or women continue in a satisfactory marital status although they may not possess high grade mentality or be successful in the conduct of business ventures and that many of them are acting with the aid of conservators.

Appellant contends that the trial court erred in permitting leading questions and suggestions and in permitting cross-examination of Elmer Ertel allegedly beyond the scope of the direct examination by the guardian ad litem. This was a matter within the sound discretion of the trial court under the circumstances herein. People v. Gasior, 359 Ill. 517, 195 N. E. 10. The very purpose of the examination was to develop the condition of Ertel’s mind and the cross-examination was a proper exercise and not an abuse of the court’s discretion. Brennen v. Chicago & Carterville Coal Co., 241 Ill. 610, 89 N. E. 756.

In view of the construction placed upon the provisions of the Missouri statute by the Courts of Review of that State and of the further fact that it is in line with rules of construction adopted by the courts of Illinois, we are impelled to find that the advisory verdict of the jury on the question of fact submitted was a proper one and that the court did not err in submitting this issue of fact to the jury or in refusing to give the question in the form that the plaintiff desired.

Among the given instructions complained of and specifically discussed in appellant’s brief, those submitting to the jury the question whether Elmer Ertel had “sufficient understanding to know the nature of the contract of marriage and the duties and responsibilities wMch it created” bore directly upon the question of alleged feeble-mindedness as construed by the courts of Missouri and of Illinois and was a proper question, and when so stated in the instructions, was not erroneous. While we will not discuss each of the instructions, we have carefully examined them and find that when considered together, they properly state the law and no prejudicial error appears in the refusing or giving of any of the instructions to the jury.

A question was asked Dr. Graff, managing officer of the Lincoln School, to which objection was sustained and concerning which plaintiff complains, as follows: “State whether or not in the case of a mental defective such as you found Elmer Ertel to be, whether it is probable or improbable that any child he-might have by this marriage would be mentally defective?” The court properly sustained objection thereto and committed no error therein. The issue was one of the validity of a contract entered into pursuant to certain statutory provisions, and this question was not material or relevant to the issues herein.

We find no reversible error in the record and are in accord with the holding of the learned trial court upon both the facts and his construction of the law in all material matters in issue, and the decree of the circuit court of Adams county will therefore be affirmed.

Decree affirmed.


author: Mr. Presiding Justice Scanlan

text:
    John F. Cahill, Administrator De Bonis Non with Will Annexed of Estate of Frederick D. Michael, Also Known as Nathaniel Bartok, M. D. Frederick, Robert B. Radford, Frederick Dalton and Daniel Bartok, Deceased, Plaintiff, v. Frederick Michael and Robert Lee Michael, Appellees. M. S. A. Michael et al., Appellants. William H. Bolling and James L. Michael, Coappellants. Connie Michael et al., Minors, by Arthur A. Sullivan, Guardian Ad Litem, Coappellants.
    Gen. No. 41,566.

      Opinion filed March 3, 1942.
    Winston, Strawn & Shaw, of Chicago, for appellants ; James H. Winston, Thomas A. Reynolds and Gerard E. Grashorn, all of Chicago, and L. A. Martin, of Lexington, N. C., of counsel.
    Joseph Levinson, of Chicago, for certain coappellant. .
    A. A. McKinley, of Chicago, for certain other co-appellant.
    Arthur A. Sullivan, guardian ad litem, for certain other coappellants.
    Ross & Watts, of Chicago, for appellees; Wadsworth Watts and Keith I. Parsons, both of Chicago, and C. R. Wharton and H. L. Koontz, both of Greensboro, bL C., of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

The Administrator With the Will Annexed of the Estate of Frederick D. Michael, deceased, brings this suit to have the will of the decedent construed. The will nominated Frederick Michael as executor, but he ivas a nonresident and Martin J. 0 ’Brien, Public Administrator, was appointed Administrator With the Will Annexed. O’Brien died and his successor in office, John F. Cahill, was substituted as plaintiff. Thirty-seven of the defendants, all heirs at law of the testator, appealed from a decree finding and decreeing that by his will Frederick D. Michael left the whole of his net estate to defendant Frederick Michael, a grandnephew of the testator, but who is designated in the will as “my first cousin.” Frederick Michael is not an heir at law, as his father, Robert Lee Michael, a defendant, is living. The case was determined by the chancellor upon the pleadings, depositions and testimony taken in open court. The pleadings consisted of the complaint, the answer of Frederick Michael setting forth his claim under the will, and the answers and replies of the appellants. We will hereafter refer to Frederick D. Michael, testator, as the “testator”; to Frederick Michael, a defendant and appellee, as “Frederick,” and to the appellants, as “heirs at law.” Robert Lee Michael has not appealed from the decree.

The testator, a bachelor, was born in 1868 on a farm in Davidson county, North Carolina, a few miles distant from Lexington, the county seat. His father was at one time sheriff of the county. His parents had eight children. In early manhood the testator went West. Most of his brothers and sisters remained in Davidson county, where they or their descendants still live. It is clear from the record that the testator was an intelligent, shrewd man. That he received a good education is shown by the fact that he attended Normal school in Lexington. In Frederick’s brief it is stated that “there is no question that Mr. Michael was a shrewd businessman. But the record does not disclose that his literary ability was equivalent to his business acumen.” Short excerpts from four letters written by the testator to relatives are cited in support of the statement as to the testator’s literary ability. It is a matter of common knowledge that businessmen, as a rule, do not attempt to show “literary ability” in their correspondence, especially where, as in this case, the testator wrote the letters himself, and to members of his family. Numerous letters written by the testator evidence that he was able to write fluently and to' express himself with clarity. The fact that he occasionally misspelled a word is not, as Frederick argues, a matter of any importance in interpreting the will. History tells us that some of the brightest men were poor spellers. In any event, misspelling plays no part in the interpretation of the will. The testator became prosperous operating hotels, and at one time he was president of the Laclede hotel, in St. Louis. He left an estate valued at more than $200,000. He traveled extensively in the United States and visited Europe, Alaska and Cuba. Photographs of the testator portray an intelligent man with an alert expression.

The testator left forty-four heirs at law and next of kin. That he liked Frederick is clear. Certain evidence, the competency of which is challenged by the heirs at law, indicates that he disliked his brother James L. Michael and his nephew John M. Michael. It is contended by Frederick that there is evidence that tends to show that the testator, in the later years of his life, was indifferent toward all of his relatives save Frederick and the latter’s father. We find abundant evidence, however, that the testator had an affectionate regard for all of his relatives except his brother James and his nephew John. He wrote a letter to his brother William and the latter’s family on January 12, 1935, in which he expressed love for William and his family, recalls days of his boyhood, and states that he ‘ shall be pleased to help you all I can to save your property.” He closes the letter by stating, “When I hear from you again I shall be pleased to answer soon.” The testator wrote numerous letters to relatives in which he showed affection for them; in some he expressed sympathy for their sorrows; in some he inclosed checks, and in others he states that he was sending gifts to certain relatives. In our judgment the evidence does not warrant a finding that the testator had any feeling against any of his relatives save his brother James and his nephew John.

On June 8, 1939, the testator’s will was admitted to probate in the Probate Court of Cook county. It reads as follows:

“I, Frederick D. Michael, of the City of Lexington, Norrh Carolina, a bachelor, and having no descendants, make, publish and declare this instrument as my last will and testament.
“First: Without the necessity of first obtaining an order or allowance by the Probate Court, my executors after my death shall pay all of my just debts and the hereinafter mentioned expenses of my last illness and funeral.
“Second: Upon my death, wherever I happen to be, I hereby direct that my executors shall order the undertaker in said place to embalm my body, place it in a suitable coffin and ship it to the undertaker at Lexington, North Carolina. I furthermore direct my executor to instruct said undertaker at Lexington, North Caroline, to bury my body at the Shiloh Church Cemetary in Davidson County, North Carolina, by the grave of my dear mother and father; to have the grave dug; to get a suitable tombstone for my grave, and to secure the services of the Shiloh Church minister to officiate during said burial. I also direct my executor to pay all of the expenses connected with the duties set forth in this paragraph out of the general assets of my estate.
“Third: I give, bequeath and device all the rest and residue of my estate, whether real or personal, and wheresoever situated, share and share alike, to my first cousin, Frederick Michael, son of R. L. Michael, 311 East Hendrix Street, Greensboro, North Carolina. If my consin, Frederick Michael, shall have died before me, his or her share shall be delivered per stirpes to his descendants living at my death:
“Fourth: I nominate and appoint Frederick Michael, of 311 East Hendrix Street, Greensboro, North Carolina, sole executor of this will; said executor to serve without bond, and generally have full power and authority to deal with my said properties in the same manner that I could do if living. No property should be sold until a reasonable price can he had. And the executor in making distribution of the principal hereunder, may do so in money, securities or other property, and he will first deduct his necessary expenses and salary for any time he has put in managing and acting as such executor; and his judgment as to what' shall constitute a just and proper division or apportionment among the beneficiaries shall be binding and conclusive upon all parties.
“Fifth: All other wills or documents of any kind previously written by me is hereby cancelled and marked void, as this is intended to be my last will.
“In witness whereof, I have hereunto set my hand to this, my last will and testament, on this 13th day of May, A. D. 1936.
“Frederick D. Michael.”

(Here follow the attestation clause and subscription by witnesses.)

It is conceded that this will was executed by the testator, and the instant contest arises over the meaning of paragraphs Third and Fourth.

The general rules of law that are applicable to the construction of wills have been settled by our Supreme Court, and it is unnecessary for us to restate them here.

The theory of the heirs at law is that:

‘ ‘ 1. Hnder settled Illinois law, Fred Michael’s claim to the whole estate is inherently untenable. The trial Judge completely misapprehended the meaning and requirements of the Illinois Statute of Wills, and has entered a decree which is wrong.
“2. Under settled Illinois law, the only permissible method by which to ascertain Mr. Michael’s intention is from what he said in his Will, and the rule is ‘inflexible’ that the meaning of what a testator says in his Will cannot be contradicted, altered or detracted from, either by ‘guessing’ at what he may have intended to say, or by extrinsic evidence.
“3. Admittedly the testator intended to bequeath something to his grandnephew, said Fred Michael, because the Will mentions him as a beneficiary by name. But what the testator intended to bequeath to Fred Michael was not the whole, but only a share or part, of the estate. The language in the Will being the antithesis or opposite of a direction bequeathing to Fred Michael the whole estate, it is not capable of being ‘bent’ or ‘blended’ so as to carry the meaning of bequeathing the whole, to Fred Michael.
“4. Under settled law the intention of the testator so expressed in the Will cannot he rejected and a contrary intention derived from extrinsic evidence substituted.
“5. Ascribing to the language of this Will its usual and ordinary meaning, as is required under the law of Illinois, — it is impossible to say that the estate of the testator has been effectively bequeathed to anybody ; and the ‘inevitable consequence’ under settled Illinois law is that Mr. Michael’s estate is intestate, and as such is to be distributed under the Statute of Descent among the natural objects of his bounty, i.e., all of his heirs and next of kin, including said Fred Michael’s father, R. L. Michael.”
‘ ‘ The theory of Frederick Michael is that the will in question is a document obviously inexpertly prepared, hut, nevertheless, by resort to the processes of construction always available in will construction cases the intention of the testator to devise or bequeath the residuary estate to Frederick Michael is clear from the language of the will itself. It is the theory of Frederick Michael also that the circumstances surrounding the testator may be viewed by the court as an aid in construing the will for the purpose of explaining and understanding what the testator has written’ ’; that “the heirs at law are not favored over legatees in construing wills, and a will will be held void for uncertainty only as a last resort,” and that “the extrinsic evidence showing the close relationship between the testator and his namesake Frederick Michael as opposed to his lack of interest in the heirs at law removes any doubt that there may be that the testator by his language intended Frederick Michael to take the entire residue. ’ ’

It is the settled rule of law that the object of the construction is to ascertain the intention which the testator has expressed in the language of the wall, and not one which he may be supposed to have had in his mind but has not expressed.

The testator made no attempt to make any devise or bequest until he drafted paragraph Third of the will. The first sentence in that paragraph reads: “Third: I give, bequeath and device all the rest and residue of my estate, whether real or personal, and wheresoever situated, share and share alike, to my first cousin, Frederick Michael,” etc. (Italics ours.) This sentence contains the only provision in the will which bequeaths, or attempts to bequeath, anything to Frederick. Our Supreme Court has determined the meaning of the words “share and share alike.” In Jenne v. Jenne, 271 Ill. 526, the court had before it for interpretation a clause in a wall that contained the same words. The court held (p. 534): “The words ‘share and share alike’ are never used to indicate the quantum or amount that is intended to be given. The sole meaning of such words and the sense in which they are invariably used are simply to denote an equal division among members of a class or number of beneficiaries, legatees or devisees in a will.” If we were obliged to decide the instant contest upon the sentence in question alone, the language of that sentence would, in our opinion, preclude an interpretation that Frederick was to receive the whole of the residuary estate. But our judgment is fortified by three subsequent provisions in the will. The last sentence of paragraph Third reads as follows: “If my cousin, Frederick Michael, shall have died before me, Ms or her share shall be delivered per stirpes to his descendants living at my death:” (Italics ours). Here the testator had in mind that Frederick might die before him, and he provided that in that event the “share” that Frederick would have received had he survived the testator, “shall be delivered per stirpes” to Frederick’s descendants living at the time of the testator’s death. Then, in paragraph Fourth of the will is the following: “and his [the executor’s] judgment as to what shall constitute a just and proper division or apportionment among the beneficiaries shall be binding and conclusive upon all parties.” (Italics ours.) It is not surprising that the parties disagree as to what the testator intended by this provision. However, it is clear from the language that we have italicized that the testator had in mind a division or apportionment of his estate “among the beneficiaries.” Thus, in three provisions of the will there is language that shows that the testator did not intend that Frederick or any one person was to receive the whole estate. The following language in paragraph Fourth, “and he will first deduct his necessary expenses and salary for any time he has put in managing and acting as such executor,” is not without some significance in determining the intent of the testator, for if he thought that he was bequeathing to Frederick his whole estate, which is a large one, it would seem unlikely that he would authorize Frederick, as executor, first to deduct from the estate a salary for services. The words in question are consistent with the interpretation that the testator intended that the estate was to be divided or apportioned among a number of beneficiaries. Counsel for Frederick interpret this language as an attempt by the testator to minimize inheritance and estate taxes. This interpretation is, of course, a mere guess; it is certainly not a reasonable interpretation of the language. The provision states: “And the executor in making distribution of the principal hereunder . . . will first deduct his necessary expenses and salary . . . . ” Distribution is made after taxes have been paid. Plainly, the testator intended by the language in question that before Frederick made a division or apportionment among beneficiaries he should first deduct his expenses and 11 salary. ’ ’ After a careful study of this will in the light of the law that governs the manner in which a will shall be interpreted, we have reached the conclusion that it was the testator’s intention that no one person was to take the whole of his estate. That the testator intended to leave Frederick a part of his estate is clear, but what portion of the estate the testator intended him to take cannot, in our judgment, be determined from the language of the will.

We have given careful consideration to the able and ingenious argument of counsel for Frederick in support of their contention that it can be determined from the language of the will that the testator intended Frederick to take the entire residuary estate As to the phrase “share and share alike” counsel state that it “was obviously merely dragged in by the testator and was ineptly used without any intention on his part to imply that persons other than Frederick Michael were to take under the will. The phrase should therefore be disregarded.” (Italics ours.) Counsel’s statement that we should disregard what we consider important language in the will suggests an easy, but not a proper or just way to interpret the will. If we followed counsel’s suggestion we would destroy the will made by the testator and create a will not made by him. Under settled rules for construing wills all of the language used in the will must be taken into consideration. The intention of the testator must be determined by the language of the will itself, and we cannot disregard that intention, if expressed in the will, and substitute a contrary intention founded upon guess or conjecture, or from extrinsic evidence. In Stevenson v. Stevenson, 285 Ill. 486, the Supreme Court said (pp. 493, 494): “Our Statute of Wills requires every last will and testament to be in writing, signed by the testator and duly witnessed. This court is firmly committed to the doctrine that extrinsic evidence is never admissible for the purpose of varying the intent of the testator as expressed by the will itself, and that no words whatever can be added to or taken from a will that will have the eff-ect of changing the plain meaning of the testator as expressed in the will. Kurtz v. Hibner, 55 Ill. 514; Starkweather v. American Bible Society, 72 id. 50; Bishop v. Morgan, 82 id. 351; Bingel v. Volz, 142 id. 214; Williams v. Williams, 189 id. 500; Vestal v. Garrett, 197 id. 398; Graves v. Rose, 246 id. 76; Clancy v. Clancy, 250 id. 297; Alford v. Bennett, 279 id. 375.”' (Italics ours.) But counsel for Frederick further argue that if a meaning must be given to the phrase “share and share alike,” “may not the testator have intended by the inclusion of the phrase c share and share alike’ to refer specifically to each parcel of property in his residuary estate, giving all shares alike to Frederick Michael?” This argument, in our judgment, is lacking in force and persuasiveness, and it amounts to a mere conjecture or guess. A fortiori, it runs counter to the Supreme Court’s definition of the phrase.

Counsel for Frederick argue that the evidence shows that for the last five years of the testator’s life he did not keep in touch with his relatives in Lexington and was completely indifferent to them; that the evidence further shows that during the later years of his life the testator confined his family interest and affection to Frederick and the latter’s wife and father, and counsel contend that this evidence should be given great weight in construing what the testator has written in his will. We have heretofore stated our conclusions as to what the evidence shows as to the feelings of the testator toward the different parties to this suit. The law on the subject is plain. In Karsten v. Karsten, 254 Ill. 480, the court said (p. 484): “Inasmuch as the statute requires wills to be in writing and attested by witnesses, the settled rule is that while surrounding facts and circumstances may be proved to explain a latent ambiguity which is not found upon the face of the instrument itself, extrinsic evidence cannot be admitted to explain an ambiguity which appears on the face of the will or to supply its omissions and deficiencies, since that would be to make a will for the testator. Under the statute, that, only, is the will of the testator which is in writing and signed by him, and the statutory provisions would be rendered nugatory and the door opened to all the evils which the law requiring wills to be in writing and attested was designed to prevent, ‘if, when the written statement failed to make a full and explicit disclosure of his scheme of disposition, its deficiencies might be supplied or its inaccuracies corrected from extrinsic source.’ (1 Jarman on Wills, —• 4th ed. —• 409.) Extrinsic evidence is a mere aid to construction and is never admissible for the purpose of making a will for the testator, even if it establishes the fact that he intended to make one, if he did not, in fact, do so.” In Engelthaler v. Engelthaler, 196 Ill. 230, the court said (p. 234): “Parol testimony cannot be admitted to explain or clear up a patent ambiguity, that is to say, an ambiguity, which appears upon the face of the will itself. Parol evidence has been admitted for the purpose of explaining or clearing up a latent ambiguity, but, in the case of a latent ambiguity, the will seems to be certain and without ambiguity for anything that appears upon its face, but there is some collateral matter outside of the will, which gives rise to the ambiguity. (1 Jarman on Wills, — 3d Eng. ed. • — ■ chap. 13, p. 399; Decker v. Decker, supra [121 Ill. 341]; Kurtz v. Hibner, supra [55 Ill. 514].) In the case at bar, the ambiguity is a patent one, as it appears upon the face of the will of Joseph Engelthaler. Therefore, parol testimony could not be introduced to explain it.” It is our judgment that the ambiguity in the instant will is a patent one, and the evidence relied upon by counsel for Frederick could not be used to contradict the language of the will. Rettig v. Zander, 364 Ill. 112, cited by counsel for Frederick, recognizes the principle that we have stated. There the court said (p. 120): “While parol evidence is not properly admitted to show what the testator intended to write, it may be admitted where its effect is merely to explain or to make certain what the testator has written,”

The heirs at law strenuously complain that the court seriously erred in admitting certain evidence offered by Frederick upon the plea of his counsel that it tended to explain the circumstances surrounding the testator at the time of the execution of the will and would enable the court to interpret the words of the will in the light of the circumstances in which it was written. Over the objection of the heirs at law Frederick was allowed to prove by Miss Bernier, a trained nurse at Misericordia hospital in New York, that when the testator was confined in that hospital, in May and June, 1936, he told her that he had left all his estate in case of his death to his namesake (Frederick). Other evidence of a somewhat similar nature was also admitted over the objection of the heirs. The evidence given by Miss Bernier was clearly incompetent. In Quigley v. Quigley, 370 Ill. 151, 155, the court said: “There was testimony that the testatrix had made statements that she wanted to leave everything to Charles. This evidence was clearly incompetent, for statements of the testatrix, either before or after the making of the will, cannot be received to prove what she intended by the written words of the will. (Peet v. Peet, 229 Ill. 341.)” (See, also, Chicago Daily News Fresh Air Fund v. Kerner, 305 Ill. App. 237.) In the Q%iigley case the chancellor stated that he had reached his conclusion without considering the evidence in question, and the Supreme Court stated that because of that statement it would noli reverse the case for that error, alone. However, the decree was reversed. In the instant case the chancellor not only admitted the evidence over the objection of the heirs at law, but later, after a motion to strike had been made and argued, he refused to strike it. As the heirs at law argue, the inference is strong that this incompetent evidence influenced the decision in the cause. Evidence such as was given by Miss Bernier runs counter to the Statute of Frauds, it invites perjury, and tends to destroy the intent of testators as manifested in their wills.

Counsel for Frederick argue that the testator clearly intended that Frederick should benefit by the will and “if this will is stricken down Frederick Michael will not get a penny. ” We may say in answer to this argument that we have no right to make a will for the testator nor have we the right to unmake the will that he executed by disregarding important words in it.

Holding, as we do, that the testator by the will in question did not dispose of any of his estate to anyone, and that he died intestate as to the whole of his estate, the decree of the Circuit Court of Cook county is reversed, and the cause is remanded with directions to enter a decree in conformity with the views herein expressed.

Decree reversed and cause remanded with directions.

Sullivan and Friend, JJ., concur.


author: Justice Fulton.

text:
    Carl G. Strawn, Appellee, v. Harold Perbix, Appellant.
    Gen. No. 9,304.
    opinion filed February 24, 1942.
    Carl B. Robinson and Robert C. Gasen, for appellant; Edward J. Flynn, for appellee.
   Opinion by

Justice Fulton.

“Not to be published, in full.”


text:
    James Barker, Appellee, v. George Geisendorfer, Appellant.
    Gen. No. 9,316.
    opinion filed February 24, 1942.
    A. W. Sehimmel, for appellant; William's & Williams, for appellee.
   Opinion by

Justice Fulton.

“Not to be published in full. ’ ’


author: Justice Biess.

text:
    Mildred Rennie, Appellee, v. Louis A. Hauffe, Appellant.
    Gen. No. 9,303.
    opinion filed February 24, 1942.
    Trapp & Trapp, for appellant; Edwin C. Mills and Shelton P. McGrath, for appellee.
   Opinion by

Justice Biess.

“Not to be published in full.”


author: Presiding Justice McSurely.

text:
    Loren. D. Sexauer and Robert A Nelson, Successor Trustees of Exchange Sales Corporation, Appellants and Cross Appellees, v. Trust Company of Chicago, Successor Trustee, Appellee and Cross Appellant.
    Gen. No. 40,958.

      opinion filed February 26, 1942;
    rehearing denied March 23, 1942.
    Rubenstein & Becker, for appellants; Lowenhaupt & Wolff, for appellee; Oscar M. Wolff and Isadore L. Kovitz, of counsel.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.”


author: Justice Friend.

text:
    Rose F. Gilbert, Appellee, v. Joseph Rosenberg and Harry Zisook, Appellants.
    Gen. Nos. 41,717, 41,718.
    opinion filed March 3, 1942.
    Rosenberg, Stein & Rosenberg, for appellants; Aaron L. Stein and Merwin S. Rosenberg, of counsel; David Brandwein, for appellee; Herbert H. Scheier, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Mr. Presiding Justice Stone

text:
    L. A. Maxwell for use of Clara E. Maxwell et al., Appellee, v. Walter J. Nieft and J. B. Frederick, Defendants. J. B. Frederick, Appellant.
    Opinion filed March 2, 1942.
    J. P. Streuber, of Alton, for appellant.
    Wilbur A. Tsares, of Edwardsville, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

The question involved in this case is: “May the sureties on the official bond of a constable who have been sued and made to pay a judgment based upon an unlawful act of said constable, sue and recover from the sureties on an indemnifying bond taken by said constable to protect him from damages in and about the doing of said unlawful act”?

This question seems to be entirely new in this State as far as adjudicated cases are concerned. Counsel have cited none in their briefs, nor have we been able to find any case as authority or precedent.

Briefly stated, the facts are substantially as follows: L. A. Maxwell was elected constable of the Township of Wood River in Madison county, Illinois, on the 17th day of April, 1933. He qualified by entering into bond in the sum of $2,000 with Clara E. Maxwell, E. S. Hendricks and August Dietiker as sureties. On the 7th day of February, 1933, Nieft Brothers, doing business under the name of the City Bakery, obtained a judgment against Cus Libas and Nick Koste in the sum of $184.95. Execution was issued against said defendants and delivered to said Maxwell for service. On June 5, 1933, said Maxwell, constable, levied on all the money and stock of merchandise consisting of beer, wines, cigars and so forth, in a place of business at 16 Wood River avenue, Wood River, Illinois, as the property of said defendants Libas and Koste. Maxwell, constable, apparently having a reasonable doubt as to the ownership of the goods on which he had levied, required from Nieft Brothers an indemnifying bond. Said bond was given, executed by Walter J. Nieft and J. B. Frederick in the sum of $400. This bond is the instrument sued on in this case.

Upon receipt of said indemnifying bond Maxwell on the 5th day of June, 1933, levied on the aforesaid goods, wares and merchandise, and sold said property to satisfy said judgment on the 17th day of June, 1933. In the meantime, one George Costopolus served notice in writing upon said constable that he, Costopolus, claimed said property as his own. A trial of the right of property was afterwards had before a justice of the peace, and upon appeal to the circuit court of Madison county judgment was rendered by said court, on the 22nd day of March, 1934, holding that George Costopolus was the owner of the property so levied upon. No appeal was ever taken from this judgment. It thereby became final.

Costopolus being unable to recover his property brought suit on the official bond of Maxwell, constable. Maxwell was not served, but a trial was had against the sureties on said bond, Clara Maxwell, T. S. Hendricks and August Dietiker. This suit was in the circuit court of Madison. A judgment was rendered by said court on the 28th day of August, 1937, for $1,142.41 and costs. This judgment was appealed to the Appellate Court, and there affirmed. (People for use of Costopolus v. Maxwell, 296 Ill. App. 651 (Abst.).) The sureties on the official bond, — that is, the defendants against whom the judgment of $1,142.41 was assessed, paid said judgment on January 5,1939. These sureties on said official bond thereafter brought suit on the indemnifying bond, making Walter J. Nieft and J. B. Frederick parties defendant. Trial was had in the circuit court of Madison and judgment was rendered against the said defendants in the sum of $400: Defendant appellant J. B. Frederick alone brought this appeal.

Appellant in his answer raises the question of the statute of limitations against the plaintiffs in this suit and urges here that said cause was barred by said statute at the time the action was instituted. With this we are unable to agree, for whether judged from the time that judgment was rendered against appellees or when they were required to pay the amount of the judgment,- the accrual of the action, if action they have, accrued well within the five-year statute of limitations. The statute of limitations affects only the remedy and does not commence to run until the party to be barred has a right to invoke the aid of the court to enforce his remedy. Staninger v. Tabor, 103 Ill. App. 330; Suppiger v. Gruaz, 137 Ill. 216; Nevitt v. Woodburn, 160 Ill. 203; Otter Creek Lumber Co. v. McElwee, 37 Ill. App. 285. Certainly the plaintiffs could not have sued until they were injured, and as said above, the injury to them accrued well within the five-year statute of limitations.

Counsel for appellant contends that the facts in this case bring it within the holdings of a class of cases of which Searles v. City of Flora, 225 Ill. 167 and Vial v. Norwich Union Fire Ins. Society, 257 Ill. 355, are types. An examination of the first case discloses that this was a suit on a bond to the City of Fora by a contractor for the faithful performance of his contract. On failure to pay the subcontractors, they sued on the bond to the City of Flora. The court there held that where a contract for the remodeling of certain buildings in the city runs directly to the city and there is nothing in the bond given in pursuance of the contract to show that it was made for the benefit of third parties, the city cannot after the work is completed and the contractor paid, maintain an action on such bond for the benefit of third persons whom the contractor has failed to pay, even though the contractor agreed in the contract to pay.

The second of these cases holds that the beneficiary of an insurance policy cannot sue the company who re-insured the company in which he was insured on its contract for reinsurance unless the contract of reinsurance specifically gives that right.

Counsel for appellee contends that this case is controlled by Cherry v. Benson, 264 Ill. App. 199. In that case the bond specifically provided for the protection of the subcontractors, and, of course, the court held that they were entitled to sue on that bond. Neither of these classes of cases is, in our judgment, persuasive of a decision either way in the case at bar.

There is a vast difference between subcontractors, though the original contractor is under bond, and the sureties on the official bond of a constable. It may be said to go with the constable in every official step that he takes. He could not be a constable without it. He is an official, of which his official bond is a part; the bond goes with him in all of his official acts. Every time he makes a levy his bond and the sureties thereon enter into it and share the responsibility; every time he makes a sale his sureties are there protecting the one whose property he sells; every time he serves process his official bond goes with him. The sureties on that bond assume every responsibility that the constable takes. It would be an austere rule indeed to hold that the sureties on that bond, assuming the responsibilities at every step of the constable and every act that he does, would not share any protection which the constable, as an official, has.

In 57 Corpus Juris 923, sec. 575, the text writer uses this language:

“Except where otherwise provided by statute, the effect of a bond or a promise of indemnity to a sheriff or a constable against liability resulting from official acts, is not to protect the officer or the sureties on his official bond from direct and primary liability to a person or party injured by his acts, but rather to shield him from ultimate loss by enabling him to revert to the indemnity in case he is subjected to liability. Such right of recourse extends to the surety on the official bond of the officer as well as to the officer himself.”

Continuing on page 933, section 593, of the same volume, the writer says:

“Surety on the official bond of a sheriff or constable, who has been compelled to pay out money on account of an act of the officer, as to which he was indemnified, may maintain an action against the indemnitors upon their bond of indemnity.”

On these principles the text writer cites Philbrick v. Shaw, 61 N. H. 356, and the same title in 63 N. H. 81. This is a case in point. The surety on a constable’s official bond sued the surety on the constable’s indemnifying bond. There was nothing in that bond which specifically referred to the surety on the constable’s official bond. The court held that the plaintiffs were properly subrogated and had a right to bring the action. A suit at law was afterwards instituted and recovery had by the plaintiff. (63 N. H. 81.) The New Hampshire court uses this language :

“Nor was the defendant’s bond for the protection of Haynes alone. His sureties were responsible for his official conduct, and equally liable with him to make compensation to any injured party for his wrongful acts. His protection was their protection.”

We choose to follow these authorities, not alone because of the standing of the text writer in Corpus Juris, and the high regard we have for the Supreme Court of New Hampshire, but also because those authorities coincide with our own understanding and belief.

In harmony with the above the judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Clifford Flood, Appellee, v. Walter Bitzer et al., Trading as Bitzer Motor Company, Appellants.

      Opinion filed March 2, 1942.
    Johnson & Johnson, of Belleville, for appellants.
    McGlynn & McGlynn, of East St. Louis, for appellee; Henry G. Walker, of East St. Louis, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an action at law instituted in the circuit court of St. Clair county by plaintiff appellee, Clifford Flood, to recover damages for personal injuries suffered by him, resulting from a collision between his automobile and an automobile owned by Joseph Frerker, an employee of Walter Bitzer, Earl Bitzer, Jesse Bitzer, LeRoy Bitzer, doing business as Bitzer Motor Company, defendants appellants, on November 26, 1939. For convenience the parties will hereinafter in this opinion be referred to as they appeared in the trial court. There was a jury trial, verdict of $4,000, in favor of plaintiff, upon which judgment was entered. Defendants prosecute their appeal to this court.

The record discloses that Joseph Frerker, was employed by defendants, as a salesman of automobile parts and equipment to various dealer's, throughout certain territory assigned to him. The accident which is the subject matter of this litigation occurred on Sunday, November 26, 1939, between 1 and 2 o’clock in the afternoon on IT. S. Route No. 50, between O’Fallon and Lebanon, while Wilma Privette, then the fiancee, now the wife of Joseph Frerker, was driving the Frerker automobile. As a result of a collision between the Flood car and the car driven by Wilma Privette, plaintiff was thrown out of his automobile and injured. Inasmuch as defendants do not controvert the question of negligence in the operation of the car owned by Frerker and driven by Miss Privette, the evidence introduced at the trial tending to establish negligence, need not be stated. The question of excessiveness of the verdict is not raised by defendants.

It is contended by counsel for defendants that Joseph Frerker, at the time and place of the collision, was not acting within the scope of his authority; that therefore, defendants were not liable for his negligent acts. It is their theory that while Frerker had made delivery of certain parts to a customer of defendants at Fairview, and contemplated delivery of more to another customer at Trenton, that this was merely incidental — the real purpose of the trip being for purposes of his own, namely a visit to his parents at German-town.

It is the general rule that the party injured by the negligence of another must seek his remedy against the person who caused the injury. To this rule well-established exceptions arise where the relations of master and servant or principal and agent is shown to exist. In those cases the negligence of the servant or agent is imputable to the master or principal. If, however, the case is to be brought within the exception to the general rule it is necessary to show that such relationship exists between the person at fault and the one specifically charged with the result of the wrong. Such relationship must exist at the time and in respect to the particular transaction out of which the injury arose. Mosby v. Kimball, 345 Ill. 420.' The right to control the manner of doing the work is of principal importance in the determination of the question whether the worker is an employee or an independent contractor. Decatur Railway & Light Co. v. Industrial Board, 276 Ill. 472. The test is the right to control and not the fact of whether actual interference with the method of doing the work is shown by the evidence. If the person for whom the work is being done retains the right to control the manner in which the work is to be done the relation of employer and employee exists. Meredosia Levee & Drainage Dist. v. Industrial Commission, 285 Ill. 68.

In the case at bar the evidence showed that Frerker was a salesman for defendants, that he sold and delivered parts and equipment throughout certain territory assigned to him. He was the owner of the automobile involved in the accident. Defendants paid him a monthly salary, paid him for his gas and oil and a certain amount each month for depreciation on his car, amounting to about $25 a month. They also gave him an allowance for repairs.

Day Bryson, a witness for plaintiff, testified that he was parts manager for Brefelt Chevrolet Company at Trenton, Illinois; that a few days before November 26, 1939, he ordered parts from Frerker to be delivered Monday morning, so that the mechanics could put the parts in automobiles when they started to work, which was at seven o’clock in the morning. Plaintiff’s Exhibit 1, the second page of which was an order written by Frerker, on Saturday, November 25, 1939, the day before the accident, for the Brefelt Company at Trenton, was marked, “Joe Del. Sunday sure.” Jerome Kidd, employed by defendant as manager, testified that he had immediate supervision of Frerker, that he knew that Frerker’s parents lived at Germantown, and that he, Frerker, visited them on Sundays. He also testified that he knew of Frerker making deliveries on Sundays to the Brefelt Company and to other customers.

Jess Bitzer, one of defendants, testified that if Frerker did deliver the parts on Sunday, he did it for the defendant company and if he had not delivered them, defendants would have delivered them in some other way. As matter of fact these parts were afterward delivered to the Brefelt Company at Trenton. Frerker testified that he had obtained the order for the parts from the Brefelt Company a few days before the accident, and on the Sunday morning in question picked up said parts at the place of business of defendants. He intended visiting his parents at Germantown and took along as passengers in his car, Wilma Privette and another friend. He delivered some parts at Meyer’s Filling Station at Fairview on H. S. Route No. 50. After leaving there, he asked Miss Privette to drive the car, which she did and was engaged in so driving at the time of the accident. Frerker testified, “I believe I had a part in there (the car) to be dropped off. I was going to drop it off at Brefelt Chevrolet.” It was further established in the record, that on U. S. Boute No. 50, you go through French Village, O’Fallon, Lebanon, Trenton, Avisten and Breese and that from Breese, one could go down to Germantown. It would seem a logical conclusion from this testimony that it was the intent and purpose of Frerker, in spite of his statement that this trip was merely a matter of his going to visit his parents, and dropping off the parts as a friendly gesture, he was on his way to Trenton, at the time of the accident, to deliver these parts, in furtherance of the business of the defendants, and within the scope of his employment.

It is contended by counsel for defendants that Frerker was free to come and go as he pleased and that defendants exercised no control over his movements and inasmuch as he was not specifically directed by them to deliver these parts on Sunday, they should not be held liable. In the case of Hartley v. Red Ball Transit Co., 344 Ill. 534, while the facts are dissimilar, the rule is laid down very clearly with reference to the relationship of master and servant. There the court said, at page 539, ‘ ‘ The test of relationship is the right to control. It is not the fact of actual interference with the control but the right to interfere that makes the difference between an independent contractor and a servant or agent.” In the instant case, the record as a whole shows a right of control by defendants. It was a regular business and duty of Frerker to take orders and deliver parts. He had a regular route and territory laid out for him by his employers. He was under the immediate supervision of Kidd, the manager for defendants. It was not necessary for liability that defendants specifically direct him to deliver, or that they knew of it. An employer is liable for the negligent act of his servant done within the scope of his authority, notwithstanding the fact that the employer had no knowledge of the particular act and regardless of the fact that the employee had no duty to perform the act. Darner v. Colby, 375 Ill. 558; 39 C. J. 1284, Master and Servant, Section 1473.

The recent case of Katsinas v. Colgate-Palmolive Peet Co., 299 Ill. App. 347, was very similar on the facts. Plaintiff in that case sued upon the theory that defendant was liable for the negligence of its agent, George Hoffman. The evidence showed that Hoffman was employed by defendant as a salesman, that it was necessary for him to have a car, that he acted under the supervision of a supervisor of sales, that while there was a conflict in the evidence as to where Hoffman was on the evening and night of the accident, it was shown that he called upon certain merchants in three different towns between the hours of 7 and 9 o’clock on the evening of the accident in question, which towns were from 20 to 40 miles distant from Champaign, where the accident happened. Hoffman was required to cover territory as directed, but without apparent interference by his employer.

There the court held that where the work was not of a character requiring a great deal of supervision, failure to supervise does not change the relationship of employer and employee and that the lower court did not err in submitting to the jury the question as to whether or not Hoffman was an independent contractor or acting as agent and servant of defendant at the time of the injury.

It is claimed further that defendants should not be liable for the reason that Frerker claimed that he was making the trip on his own time and for his own pleasure, and was only incidentally making delivery to a customer. The fact that the servant is combining his own business with that of the master, does not necessarily relieve the latter from liability. Kennedy-VanSaun Manufacturing & Engineering Corp. v. Industrial Commission, 355 Ill. 519; Irwin-Neisler & Co. v. Industrial Commission, 346 Ill. 89; Carl Corper Brewing & Malting Co. v. Huggins, 96 Ill. App. 144; East St. Louis Connecting Ry Co. v. Reames, 75 Ill. App. 28. The jury would be justified in believing that Frerker had just delivered parts to one customer and was on his way to deliver some to another. It is immaterial whether or not the delivery of the auto parts to Trenton was incidental to the main purpose of the trip, because the evidence shows that at the time the injury took place Frerker was engaged not on his own but on defendant’s business and within the scope of his employment.

One remaining collateral question is raised by counsel for defendant, and that is, that the tort was committed not by Frerker but by Wilma Privette. The record shows she was driving his car by his express invitation, at his direction and in his presence. The evidence shows that at the time of the collision, apparently realizing his responsibility, Frerker, who was riding in the front seat with Miss Privette, took hold of the steering wheel. As a general proposition of law the owner of a motor vehicle is ordinarily held liable for the negligence of one who is not in his employ but who is driving his car with the knowledge and consent and in the presence of his agent or employee and upon his business. Cook v. Connelly Chevrolet Co., 261 Ill. App. 242. In this case the act of Miss Privette was the act of Frerker, who in turn was acting for his master, in the course of his employment. The court did not err in refusing to direct a verdict for defendant and in denying motion for judgment notwithstanding verdict.

Complaint is made that the court erred in refusing five instructions offered by defendants. Instructions 1, 2 and 3 did not correctly state the law and were properly refused. The fourth and fifth instructions were misleading and were properly refused. In other instructions offered by the court and given to the jury, the principle of law embodying the doctrine of master and servant and the duty of plaintiff to show that the servant or agent was acting within the scope of his employment at the time of the injury complained of, were fully covered. We believe the jury were properly and fully instructed as to the law applicable to the facts in this case.

Not finding any substantial error in the record, the judgment of the trial court will be affirmed.

Affirmed.