text:
    Henry J. Sontag et al., Appellants, v. New York Life Insurance Company, Appellee.
    Gen. No. 41,033.

      Heard in the third division of this court for the first district at the December term, 1939.
    Opinion filed May 22, 1940.
    Rehearing denied June 14, 1940.
    Joseph T. Tyrrell and McCarthy & Toomey, all of Chicago, for appellants; Frank A. McCarthy, Joseph T. Tyrrell, John E. Toomey and James C. O’Brien, Jr., of Chicago, of counsel.
    William N. Marshall, John F. Denissen, Kirkland, Fleming, Green, Martin & Ellis, Harold L. Reeve and Edmund J. Reynolds, all of Chicago, for appellee; Joseph B. Fleming and Thomas B. Martineau, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is a chancery action by the plaintiffs seeking to compel an accounting by the defendant and to determine the surplus arising out of the foreclosure of two mortgages secured by real estate owned by the plaintiffs. The master recommended the entry of a decree in accordance with the prayer of the complaint. The chancellor sustained the defendant’s exceptions, dismissed the suit for want of equity and entered judgment for costs against the plaintiffs.

The allegations of the complaint are in substance that the defendant foreclosed two mortgage trust deeds made by the plaintiffs conveying certain real estate in Chicago; that the foreclosure sale of May 1, 1935 resulted in a deficiency of $15,725.01; that before the mortgage loans were made, plaintiffs had leased the mortgaged premises to the United Cigar Stores Company of America for a term of 99 years, commencing November 1,1922; that at the time the mortgage loans were made, plaintiffs assigned all interest in this lease to the defendant “as further security for the indebtedness, subject to the condition that plaintiffs should have the exclusive right to enforce its provisions as long as no defaults exist under the covenants of the trust deed”; that United Cigar Stores Company became a voluntary bankrupt in the United States District Court for the Southern District of New York; that the trustee in bankruptcy and the plaintiffs on December 12, 1932, entered into a written agreement terminating the 99-year lease and assigning to the plaintiffs all of the bankrupt’s interest in the lease and sub-leases thereunder ; that by this agreement the plaintiffs reserved the right to file against the bankrupt estate “any provable claims to which the bankruptcy court might adjudge the landlords are entitled under the terms of the lease.....”; that on February 20,1933, the plaintiffs filed their claim in the bankruptcy proceeding for $39,765.15, representing the taxes which the bankrupt had not paid for the years 1928-1932 inclusive; that on October 3, 1933 this claim “was reduced by the bankruptcy court to $19,765.15 and allowed for that amount”; that thereafter a dividend of 20 per cent amounting to $3,953.03 was paid to “plaintiffs’ assignee Dilworth”; that on April 6, 1934, the defendant New York Life Insurance Company intervened in the bankruptcy proceeding and petitioned the court for “entry of an order requiring the trustee to pay remaining dividends on the claim to the defendant by virtue of the assignment of the lease ... ”; that on June 14,1934, proceedings for reorganization of the bankrupt under section 77B of the Bankruptcy Act were instituted in the same federal court; that the New York Life Insurance Company on September 15, 1934, filed a claim in this proceeding for $69,000; that the plaintiffs filed a claim for $108,204.46; the plaintiffs filed this claim on October 9, 1934; that objections were filed to both claims by the bankruptcy trustee and by intervening creditors; that thereafter the plaintiffs, defendant and Dilworth entered into the agreement to which we have referred whereby, among other things, the plaintiffs and Dilworth conveyed to the defendant the half interest in the bankruptcy and reorganization claims; that the agreement was made ‘ ‘ solely for the further security of payment of indebtedness secured by the two mortgages; that the defendant having realized payment on its total indebtedness, it is in equity and law bound to pay over to the plaintiffs any surplus over and above its indebtedness.”

The answer of the defendant admits the making of the agreement but denies that it was made for security; alleges it was a settlement contract finally settling controversies and litigation between the parties and the county collector and absolutely dividing the bankruptcy and reorganization claims; alleges it has been fully carried out and performed by all parties, including the defendant; and denies the plaintiffs are entitled to any relief from the defendant.

It further appears that under the terms of the 99-year lease the United Cigar Stores Company, lessee, was obligated to pay all taxes levied against the mortgaged premises, in addition to the cash rental. It paid a part of the taxes for 1928 and 1929, but, when it became a voluntary bankrupt, it had failed to pay the remainder of those taxes, or taxes for 1930-1932 inclusive, and did not pay any of the taxes for these years and thereafter.

Plaintiffs covenanted in the trust deeds securing the mortgage loans from the defendant to pay all taxes, and the taxes were not paid. It also appears that the defendant was not a party to the agreement between the plaintiffs and the bankruptcy trustee dated December 12,1932, whereby the 99-year lease was terminated and the trustee assigned to the plaintiffs the lessee’s interest in the lease and subleases thereunder, of which agreement the defendant in this action had no notice.

The agreement entered into by the parties on June 25,1935 is to be considered by this court as to whether it is conclusive of the rights of the parties and as to whether it governs and decides the case, and warranted the dismissal of plaintiffs’ suit for want of equity. The parties to the agreement were the plaintiffs, first parties, Dilworth, second party, and the defendant, third party. The contract contained the following recitals and provisions, which we have incorporated in full in this opinion:

“That whereas plaintiffs on February 20, 1933 had filed a claim against the bankrupt, United Cigar Stores Company of America, in a proceeding in which the United States District Court for the Southern District of New York, in the amount of $39,765.15, for unpaid taxes for the years 1928-1932 inclusive, due under a lease dated August 31, 1922, between the plaintiffs as lessors and the bankrupt as lessee; whereas the plaintiffs had assigned this claim to Dilworth on September 8, 1933, whereas the claim had been reduced to $19,765.15, and allowed in that amount, by an order entered October 3, 1933; whereas a first dividend of 20% had been received on this claim by Dilworth on October 5, 1933; whereas the defendant on March 1, 1934, filed suit (in the Circuit Court of Cook County, Illinois) to foreclose plaintiffs’ two mortgages to the defendant in the aggregate principal amount of $100,000; whereas the defendant on April 9, 1934, had applied by petition in the bankruptcy' proceeding (in the New York federal court) to restrain the payment of further dividends on the above claim to plaintiffs or to their assignee, and to require the bankruptcy trustee to pay any further dividends to the defendant; whereas defendant’s said petition was still pending and undetermined in the bankruptcy proceeding; whereas the Cook County Collector had also applied to the bankruptcy court by petition on April 27,1934, to compel the payment of further dividends on said claim and any further amounts due by virtue of the lease, to him; whereas said petition of the County Collector was still pending and undetermined; whereas second and third dividends aggregating 30% had been authorized in the bankruptcy proceeding on June 14, 1934, but had not yet been paid on the above controverted claim; whereas a petition for reorganization of the bankrupt under Section 77B had been filed in the same federal court on June 14,1934; plaintiffs had filed claim in that proceeding for $108,204.06 on October 9,1934, for damages resulting from the bankruptcy trustee’s rejection of the lease; the defendant had filed claim on September 15, 1934, for $69,000 for damages resulting from the rejection of the lease; objections had been filed by the bankruptcy trustee and by interveners to both claims; and

“ ‘Whereas the parties hereto desire to settle any and all conflicting claims with respect to said bankruptcy claim and with respect to said reorganization claim. ’

“Therefore, in consideration of the mutual promises and covenants hereinafter set forth, and in consideration of One Dollar, etc., ‘it is hereby agreed as follows:’

“That Dilworth and the defendant ‘shall share equally’ all dividends and proceeds of the bankruptcy claim, exclusive of the dividend already paid to Dilworth, which the defendant agreed ‘Dilworth may retain free and clear of any claims or liens asserted by the company (the defendant) or the County Collector, and to the intent and purpose that the company shall receive 50% of all dividends and proceeds of said bankruptcy claim, with the exception of the first dividend of 20% already paid to and received by Dilworth, Dilworth hereby assigns, transfers and conveys to the company a one-half interest in and to the said bankruptcy claim; ’ that the company should obtain from the County Collector a stipulation, in which Dilworth should also join, and consent orders, withdrawing both the County Collector’s and the defendant’s petitions of April 6th and April 24, 1934, ‘and confirming the assignment by Dilworth to the company of a one-half interest in said bankruptcy claim as aforesaid;’ that the plaintiff and the defendant ‘ shall share equally all dividends and proceeds of said reorganization claims and to the intent and purpose that the company (the defendant) and the Sontags shall each receive fifty per cent of all dividends and proceeds of said claims, the Sontags and the company do hereby respectively assign, transfer and convey each to the other a one-half interest in and to their respective claims;’ that the plaintiffs and the defendant should file a stipulation and procure entry of an order in the reorganization proceeding, consolidating their claims ‘and directing that all dividends and proceeds of the consolidated reorganization claims be shared equally’ by them; that plaintiffs and the defendant should join in opposing all objections to their claims by other persons; that all parties to the contract should pay their own counsel fees and expenses ‘out of the respective shares received by them; ’

‘ ‘ The contract further provided, with reference to the deficiency decree against the plaintiffs and in favor of the defendant in the Illinois foreclosure suit, that the defendant would not pursue any such decree against the plaintiffs personally, although it might obtain the appointment of a receiver in the foreclosure suit for the purpose of collecting the rents of the mortgaged premises during the redemption period; that at the end of the redemption period, the company undertook to execute and deliver to the plaintiffs a satisfaction of any such deficiency decree and a general release of all claims of defendant against the plaintiffs ‘based upon or arising out of said mortgages; ’ and further, the defendant obligated itself, at any time during the redemption period and on written request of the plaintiffs to execute and deliver to them a release of the lien of the deficiency judgment on any other real estate ‘belonging to or standing in the name of the Sontags.’

‘ ‘ The contract concluded that the parties would ‘ execute any and all other papers and perform any and all other acts as may be necessary or proper to carry out the terms, covenants and conditions contained herein. ’ ”

The stipulations which the contract called for were filed shortly thereafter. These were signed by the attorneys representing the plaintiffs and Dilworth, the defendant and the collector. One of them provided among other things that the defendant should apply all amounts it received from both claims to payment of the taxes to the collector.

The plaintiffs are not attacking or attempting to set aside the agreement of June 25, 1935, but are contending that it does not relieve the defendant from applying what money it received from this property on the mortgage debt, and if the plaintiffs made no effort to sequester the proceeds of these claims and the defendant was successful in collecting the entire amount, it would obviously be necessary for the defendant to give the plaintiffs proper credit. The fact that the defendant collected only 50. per cent of the entire claim certainly does not change this principle unless the plaintiffs expressly waived the right to apply the same on the debt. In other words, the plaintiffs are not asking that the agreement be set aside or rescinded, but rather that it be enforced strictly in accordance with its terms, that the defendant receive one-half the amount of each claim, but after receiving its portion the same should be applied on the debt, and if there is then a surplus it should account and pay over the same to the plaintiffs. And finally the plaintiffs state that necessarily, therefore, we come again to the written agreement to ascertain what rights the parties retained and what rights they bargained away. So, when we come to consider this agreement, we are to take into consideration the situation of the parties. The defendants call our attention to the following:

“(a) The foreclosure proceedings had been terminated by the entry of a decree of sale on April 4,1935 ;

(b) The real estate had been purchased by defendant for $110,600.00 at the foreclosure sale on May 1, 1935;

(c) The master’s report of sale had been approved and a deficiency decree for $15,725.01 and interest from May 1,1935 had been entered on May 15,1935 in favor of defendant;

(d) The receiver in the foreclosure proceedings had been continued until the further order of the court ;

(e) In the bankruptcy proceeding was pending the petition of the County Collector to restrain further payments of dividends on the bankruptcy claim to Dilworth or plaintiffs and asking that such dividends be paid to the petitioner to apply on unpaid taxes;

(f) In that proceeding was also pending the petition of defendant to likewise restrain further payments of dividends and seeking to have such dividends paid to defendant;

' (g) In the reorganization proceeding plaintiffs had filed their claim for damages for rejection of the 99-year lease by the bankruptcy trustee;

(h) Likewise, defendant had filed its claim in said proceeding for rejection of said lease;

(i) Defendant was contending that it was the absolute owner of the bankruptcy and reorganization claims and entitled to all the damages recoverable in said bankruptcy and reorganization proceedings as the assignee of the reversion and as mortgagee after condition broken ;

(j) Plaintiffs were contending that defendant had no right to the claims because it had not resorted to its remedies until after rejection of the lease;

(k) Objections had been filed by the trustee and others to the claims of defendant and of plaintiffs.” And it is contended that by the agreement, they finally settled all of these matters as to which there was still any controversy, namely the matters in the bankruptcy and reorganization proceeding involving the title to the claims against the bankrupt and the right to receive the dividends thereon.

The plaintiffs argue that some importance is to be attached to the fact that the parties did not recite an intent to “settle the foreclosure suit,” in addition to the controversies in the bankruptcy court. Answers to this argument are that there were no issues then pending in the foreclosure suit which had gone to decree, sale, approval and deficiency decree; that it is not essential that parties settle all matters pending; they can settle any one or more they specify, as they clearly did here; that the primary purpose of the agreement was to settle the controversies in the bankruptcy court, but that the plaintiffs requested in addition and the defendant granted a release of the foreclosure deficiency judgment in the foreclosure suit; that the agreement was proposed and drafted by the plaintiffs and their attorneys, and will be construed most strongly against the drafters.

After some discussion of the subject between the parties, it appears that the defendants agreed to the suggestions made by the plaintiffs, and the agreement was drawn and approved by Samuel Boss Ballin, the plaintiffs ’ attorney.

The defendant cites authorities upon the right of the plaintiffs to question the provisions of the contract, one of which cases is somewhat similar to the case we have in this court, namely, Compton v. Johnson, 240 Ill. 433. That was a bill by Compton to have a certain deed declared a mortgage. Compton had been the owner of 200 acres of land and had mortgaged it to one Andrus to secure $3,200. The mortgage had been foreclosed and the premises sold to Andrus. On the last day of the redemption period, plaintiff did not have the funds with which to make redemption. After conversations between Compton and the defendants, the defendants redeemed the property, paying $4,763 to the master. At the same time they requested and received from Compton a deed to the property. Compton claimed this deed was to secure repayment of the redemption price, and therefore was a mortgage. The defendants denied the deed was given as security, and defended on the further ground that the plaintiff had sued them previously, that the suit had been terminated by a settlement and compromise, in a transaction wherein the defendants had conveyed to the plaintiff 80 acres of the land, and plaintiff had agreed to permit the deed he had given them to be and become absolute as to the remainder of the land. The master found for the plaintiff on the first point, that the deed had been given to secure defendants ’ advances at the time of the redemption, and had therefore been a mortgage. But the master further found that a settlement and compromise had been made, as contended by the defendants. The chancellor sustained the master’s findings, and decreed accordingly, and the decree was affirmed by the Supreme Court. That court said the case presented a remarkable state of affairs, that the plaintiff had made a remarkably bad bargain but that there being no evidence showing he was mentally unsound, the compromise and settlement contract must stand and the court would not go behind it, saying in part:

“The defendants . . . rely upon the settlement and compromise made while the (former) suit was pending, in 1899. The master found and reported that the deed to the north half ... was . . . delivered by them (defendants) to complainant and accepted by him in full satisfaction and discharge of all matters in controversy between him and said defendants regarding the transaction of the conveyance of the two hundred acres to Johnson and Avery. The court found and recited the same thing in the decree. . . . The weight of the proof tends to support these findings, and although it was an absurd settlement for complainant, yet if he agreed to it, courts are powerless to set it aside.”

So, when we come to consider the agreement which we have before us, the settlement between the plaintiffs and their assignee and the defendant is binding upon them, and even if it were not a settlement that was fair, or in other words a bad bargain from the plaintiffs’ point of view, the contract was binding. However, from a determination of the facts as they are presented, the plaintiffs did not make a bad bargain. They eventually received from the bankruptcy trustee the amount appearing in the record as the result of the claims of the parties to the litigation, and as we all understand, the courts encourage compromise, as is stated in the case of Bingham v. Browning, 197 Ill. 122, where it was said: Compromises are to be encouraged because they promote peace, and when there is no fraud and the parties meet on equal terms and adjust their differences, the court will not overlook the compromise but will hold the parties concluded by the settlement.”

As we have indicated, the plaintiffs are not seeking to attack or attempting to set aside the agreement, but are contending that certain moneys that were received by the defendant are to be accounted for. Under the circumstances as we have them before us, the contract is conclusive upon the questions arising upon this record.

The plaintiffs contend that the master properly considered evidence in order to determine whether the agreement was a settlement of all matters in dispute between the parties, and in support of this proposition state that the agreement of June 25, 1935, being silent on the question of whether the plaintiffs are entitled to credit on the mortgage indebtedness for whatever sums of money are realized on the bankruptcy and reorganization claims, it was necessary and proper for the master to consider evidence on this important matter which the agreement failed to mention, citing the case of Fuchs & Lang Mfg. Co. v. Kittredge & Co., 242 Ill. 88, where the court said:

“ ... The rule is a familiar one, but it is subject to the qualification that a separate parol agreement as to any matter not inconsistent with the terms or legal effect of the written agreement, and on which it is silent, may be shown, where it appears that the written instrument was not intended to be a complete and final statement of the whole transaction between the parties. (Platt v. Aetna Ins. Co., 153 Ill. 113; Town of Kane v. Farrelly, 192 id. 521; Seitz v. Brewers’ Refrigerating Machine Co., 141 U. S. 510.) ...”

The answer of the defendant is, the parol evidence that was offered by the plaintiffs and received by the master was incompetent and also insufficient to establish the plaintiffs’ theory, and the defendant points to the plaintiffs’ complaint, where it is alleged that the settlement contract of June 25,1935, was made “solely for the further security of the payment of the indebtedness secured by the two mortgages.” The theory was that the half interest in the bankruptcy and reorganization claims transferred and conveyed to the defendant by the agreement, absolute on the face of the agreement, was nevertheless intended only as security for the deficiency decree in the mortgage foreclosure suit. It is the rule, which is supported by the Supreme Court in Kimmel v. Bundy, 802 Ill. 514, that — “One claiming a deed absolute in form is a mortgage must establish it by clear and convincing proof. ’ ’ And to the same effect is the case of Helm v. Boyd, 124 Ill. 370. So, we are obliged to consider this agreement and determine whether from its provisions a settlement agreement was entered into by the parties and not an agreement to serve as security. As it appears from this record the debt of the plaintiffs to the defendant immediately prior to the agreement was the deficiency decree which had been entered in the foreclosure suit in Illinois. Of course the parties were perfectly justified in entering into an agreement whereby the parties were to receive a share in the chose in action for the undetermined bankruptcy and reorganization dividends and proceeds, and such undetermined net rents, if any, as it might receive from the redemption period receivership, in payment of the personal obligation of the plaintiffs for the deficiency, and when we come to examine the agreement, we find upon the question of deficiency that the defendant would not pursue any such decree against the plaintiffs personally, although it might obtain the appointment of a receiver in the foreclosure suit for the purpose of collecting the rents of the mortgaged premises during the redemption period, and that at the end of the redemption period, the company undertook to execute and deliver to the plaintiffs a satisfaction of any such deficiency decree and a general release of all claims of the defendant against the plaintiffs “based upon or arising out of said mortgages”; and further, the defendant obligated itself upon the written request of the plaintiffs to execute a release of the deficiency judgment. So, this was the agreement of the parties, and in the light of the facts surrounding the execution of this contract, the parties to it are bound, and evidence of the character that was offered and received by the master would furnish no material aid, except this: that it would tend to contradict and vary the terms of the agreement. As we have already indicated, this agreement was proposed by the plaintiffs and prepared by their attorney after consultations, and there is no evidence and the plaintiffs do not point to anything which would indicate that they were overreached by any representations that were not true in executing the contract in question.

This court has concluded that the agreement was a final and complete contract free from fraud, duress or mistake. Therefore it is conclusive of the rights of the parties, and the court was fully justified in not going behind it or making a new contract in place of the one the parties made. The plaintiffs proposed, negotiated and drafted the contract and benefited therefrom, receiving as their own, substantial sums of money as a result of it, and of course the plaintiffs will not be heard to impeach it.

For the reasons stated, the decree dismissing the suit by the court for want of equity is affirmed.

Decree affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    The Chicago Riding Club for use of Maurice Klein, Appellant, v. Sewell L. Avery et al., Garnishees, Appellees.
    Gen. No. 41,044.
    Heard in the third division of this court for the first district at the December term, 1939.
    Opinion filed May 22, 1940.
    Rehearing denied June 14, 1940.
    Livingston E. Osborne, of Chicago, for appellant; Henry McGurren, of Chicago, of counsel.
    D ’Ancona, Pelaum & Kohlsaat, John E. Timm, Follansbee, Shorey & Schupp, Bernard Allen Fried, Woods, Woods, Brown & Salter, Wiley W. Mills, McNab, Holmes & Long and Victor G. Nardi, all of Chicago, for appellees; Charles H. Blumenfeld, Elsdon C. Smith, Wallace B. Kemp, Cobert EtsHokin and Ned Silverman, all of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

From the statement of claim in the briefs it appears that on April 29, 1938, the plaintiff commenced an action against the Chicago Biding Club, a corporation, on 50 first mortgage $1,000 real estate gold bonds of the Chicago Biding Club, a defendant, and obtained a judgment on that date by confession in the sum of $54,126.64. Thereafter the plaintiff instituted garnishment proceedings on September 1, 1938, under § 1, ch. 62, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.284] against Leonard Florsheim, Joseph Begenstein, Frank J. Cox, S. O. Johnston, John Baumgarth, Frank G. Croissant, Wm. C. Hollister, Avery Brundage, George F. Nixon and John C. Bowers, hereinafter referred to as garnishee defendants.

The plaintiff alleges that he had just reason to believe that the garnishee defendants were indebted to the defendant for dues and house accounts accrued and incurred while members of the defendant, and that he was entitled to such indebtedness under the statute. To this claim the garnishee defendants filed answers and amended answers individually and respectively, and the same were traversed by the plaintiff.

In the answer of the garnishee defendants they stated that each of the garnishee defendants owned a $1,000 membership bond of the Chicago Biding Club, which they claimed as a setoff against any alleged indebtedness of theirs against the Chicago Biding Club; that the statute of limitations had run as to any indebtedness of theirs to the Chicago Biding Club; that because the Chicago Biding Club, a corporation not for profit, was dissolved on June 1, 1938, the plaintiff had no right, license or authority to maintain any proceeding against them; further, that the Chicago Biding Club ceased to function as a private club during 1933, 1934 and 1935, and thereafter they were not liable to the Chicago Biding Club for any dues assessed against them; and the plaintiff was precluded from bringing this action because of the terms and conditions contained on the face of the fifty $1,000 first mortgage real estate gold bonds of the Chicago Biding Club upon which he confessed judgment.

During the course of the trial it was stipulated and agreed between the parties that the Chicago Biding Club was incorporated as a corporation not for profit June 30,1923 and was dissolved June 1,1938; that the bylaws of the Chicago Biding Club are as set forth in exhibit B, and that at a special meeting of the bond members of the Chicago Biding Club held June 29, 1926, the sum of $150 was duly fixed as the amount of annual dues to commence July 1,1926; that the county treasurer was appointed receiver of the Chicago Biding Club on June 12, 1933, qualified and took possession.

It further appears from this stipulation that the garnishee defendants, with the exception of Avery Brundage, signed applications for life membership bonds in the Chicago Biding Club, and that the bonds under which the plaintiff obtained a judgment against the Chicago Biding Club were first mortgage real estate bonds, and at the close of the evidence the court found the issues in favor of the garnishee defendants and ordered that all of the garnishee defendants be discharged and dismissed at plaintiff’s costs. It is from this judgment order that the appeal is in this court.

All of the garnishee defendants were bond members of the Chicago Biding Club and all had loaned $1,000 to the Club at the time of their association as members, receiving as evidence of the loans, bonds for $1,000, due on or before January 1, 2000 A. D. Thereafter being owners of such bonds, they further contend that they were entitled to set off the obligation represented thereby against any claim asserted by the Chicago Biding Club, or by the plaintiff, who sought to garnishee the debt claimed to be due to the Chicago Biding Club, amounting to over $8,000. This right of setoff is expressly granted to them, and they cite in support of their contention § 13, ch. 62, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.296].

“Deductions and set-offs of garnishee.] Every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands all demands against the plaintiff, and all demands against the defendant, of which he could have availed himself if he had not been summoned as garnishee, whether the same are at the time due or not, and whether by way of set-off on a trial, or by the set-off of judgments or executions between himself and the plaintiff and defendant severally, and he shall be liable for the balance only after all mutual demands between himself and plaintiff and defendant are adjusted, not including unliquidated damages for wrongs and injuries: . . .” Also the opinion of our Supreme Court in the case of Levinson v. Home Bank & Trust Co., 337 Ill. 241, wherein the court said:

“It is a well settled rule of statutory interpretation that where the language used is plain and certain it must be given effect by the courts. The province of the courts is not to legislate but to interpret. We cannot read out of the statute words which the legislature has placed therein, any more than we can read into the statute words which are not within the manifest intention of the legislature as determined by the statute itself. (Downs v. Gurry, 296 Ill. 277; Sup v. Cervenka, 331 id. 459.) In the section of the Garnishment act above quoted the legislature has used the words, ‘whether the same are at the time due or not. ’ This phrase was obviously intended to have some meaning, and it cannot be disregarded or treated as a nullity. It is clear and unambiguous. It states definitely and clearly that a garnishee shall be allowed to deduct out of the property in his hands all demands which he may have against the plaintiff and the defendant, whether the same are at the time due or not.”

The plaintiff answers this proposition by arguing that in effect the members are attempting to make themselves creditors of the Chicago Riding Club so as to defeat the claim of a just creditor, who invested in first mortgage bonds of the Chicago Riding Club on the representation that his investment would be secured by the property of the club, and that all other bond obligations of the club would be subordinate to his. Of course, when we come to consider the suggestion offered, the first mortgage bonds were prior liens on certain real estate in Chicago, and in respect to that security it is, of course, true that other obligations of the Riding Club were subordinate. The security of the trust deed was limited however to the real and personal property thereby conveyed.

It is suggested by the defendants that the Chicago Riding Club was dissolved on June 1, 1938, and therefore the present garnishment proceedings cannot be maintained. They urge that it is an elementary principle of the law of garnishment that in order for a judgment to be entered for the plaintiff in the proceedings, it is a condition precedent that a right of action exists in favor of the judgment debtor, against the garnishee defendant.

The plaintiff in the action, however, calls our attention to the dissolution on June 1, 1938, as set forth, of the Chicago Biding Club, a corporation organized not for profit, judgment debtor, and contends that it did not constitute a bar to plaintiff’s maintaining the garnishment proceedings, and urges that under par. 157.94 of ch. 32, sec. 94, “Corporations,” Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 32.096] (Ill. St. Bar Ass’n Ed.) provision is made for the survival of a remedy after dissolution, and quotes from this particular paragraph as follows:

“Survival of remedy after dissolution. The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, or (2) by the decree of a court of equity when the court has not liquidated the assets and business of the corporation, or (3) by expiration of its period of duration, shall not take away or impair any remedy given against such corporation, its directors, or shareholders, for any liability incurred prior to such dissolution if suit thereon is brought and service of process had within two years after the date of such dissolution. Such suits may be prosecuted against and defended by the corporation in its corporate name.”

It appears from one of the cited cases entitled Schneider v. Autoist Mut. Ins. Co., 346 Ill. 137, the plaintiff brought an action of attachment in the superior court of Cook county on a judgment rendered in his favor by a New York court against the defendant, Allen, and summoned the Autoist Mutual Insurance Co. as garnishee. The court after reviewing the entire record, discharged the garnishee, for the reason that since Allen had not complied with the terms of the policy issued by the garnishee, he could not maintain an action thereof, and that inasmuch as the plaintiff had no greater rights against the garnishee than did Allen, the plaintiff was necessarily barred. Upon a like question in the case of Supreme Sitting Order of the Iron Hall v. Grigsby, 178 Ill. 57, the plaintiff brought an action of attachment-against the Supreme Order Iron Hall and summoned as garnishee one Grigsby. It appears in the record that the garnishee had in his hands as cashier of the local lodge of the Supreme Order Iron Hall, a certain sum of money, but that the “Hall” was not qualified to transact business in the State of Illinois. The court in discharging the garnishee, held in effect that because the “Hall” was not authorized to transact business in the State of Illinois it could not have maintained an action against the garnishee, Grigsby, and that the plaintiff stood in no better position. In specifically discussing the subject, the court said: “The law is well settled in this State that in garnishment proceedings the creditor can only recover such indebtedness as can be recovered in an appropriate action in the name of the attachment or judgment debtor against the garnishee. . . . Here, as we have seen, no right of recovery existed in favor of the Indiana corporation, the judgment debtor, and under the rule laid down in the authorities cited, no recovery could be had by Sumpter, the creditor of the corporation. ’ ’ And for the reasons stated the Chicago Biding Club could not maintain an action against the garnishee defendants, one of which is the fact that the Club had been legally dissolved on June 1,1938, prior to the time that the present garnishment proceedings were instituted.

Chapter 32, sec. 14 of the General Corporation Act of 1919, Cahill’s Ill. St. 1927, specifically provided that: — “All corporations organized under the laws of this State, whose powers may have expired by limitation or otherwise, shall continue their corporate capacity for two years for the purpose only of collecting debts due such corporation and selling and conveying the property and effects thereof. Such corporations shall use their respective names for such purposes and shall be capable of prosecuting and defending all suits at law or in equity.”

Subsequently the Business Corporation Act of 1933, which act is now in force, specifically repealed the Act of 1919, and contains no provision which would authorize the institution of proceedings of any kind by a corporation after it has been dissolved.

It does appear from ch. 32, par. 157.94, sec. 94 of the present Business Corporation Act, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 32.096] that suits may be instituted against a corporation, its directors or shareholders, at any time within two years after the dissolution of the corporation, but the statute is silent and no provision is made which authorizes a dissolved corporation to maintain any form of action whatever after its dissolution. In this State the courts have not as yet been called upon to specifically point out the distinction upon that subject, but in the case of Billiard Table Mfg. Corp. v. First-Tyler Bank & Trust Co., 16 F. Supp. 990, 1936, the District Court of the Northern District of West Virginia was specifically called upon to decide whether or not an Illinois corporation could maintain an action after its legal dissolution. From the facts as they appear in that case the plaintiff instituted suit in the District Court of the Northern District of West Virginia on February 28, 1934. While the case was pending the plaintiff corporation was dissolved upon action of the Attorney General of the State of Illinois, by a decree entered in the superior court of Cook county. The defendant then tendered and filed two special pleas in bar to the further prosecution of the action, alleging the plaintiff’s dissolution and denying the plaintiff’s right under the Hlinois law to further prosecute the suit. To these pleas the plaintiff filed special replications, citing the provisions of sec. 163 of the 1933 Illinois Business Corporation Act [Cahill’s Ill. St. 1933, ch. 32, [[158(5)] in avoidance of the effect of its dissolution in Hlinois. To each of these replications the defendant demurred, and the case was before the court on the specific question as to whether or not the fact that the plaintiff corporation had been dissolved barred the further prosecution of the proceedings. The court sustained the demurrers to the plaintiff’s special replications and dismissed the suit, and upon the question before the court, said:

“Before the passage of the 1933 Illinois Business Corporation Act, an Illinois corporation had the right and power to collect debts due it and to maintain suits in its corporate name for the same for a period of two years after its date of dissolution. Illinois Business Corporation Act of June 28,1919, in force July 1,1919, Laws Ill. 1919, p. 320, sec. 14 (Smith-Hurd Ill. Stats, c. 32, § 157.94 note). However, in the enactment of the 1933 Illinois Business Corporation Act this right and power was withdrawn by the Legislature by the omission of the former provisions from the new act. Illinois Business Corporation Act, in force July 13, 1933, § 94 et seq., Acts of General Assembly of State of Illinois 1933, . . . (Smith-Hurd Ill. Stats, c. 32, § 157.94 et seq.). In the 1933 act, upon application of any interested party, the assets of any corporation undergoing involuntary liquidation may be collected by the appointment of receivers to collect the same pending dissolution. Hlinois Business Corporation Act, in force July 13, 1933, sections 86 and 87.”
"
“In the present case, neither the right of action nor the action now pending was in being at the date of the passage of the 1933 act. The plaintiff’s method of procedure to sue subsequent to its dissolution in its corporate name was then nothing more than a possibility or contingency; it was inchoate so to speak. At the passage date of the 1933 act the plaintiff had not even a matured or vested form of procedure. Therefore, the 1933 act effectively removed and replaced the procedural privilege now here contended for by the plaintiff. Inchoate rights generally derived from a statute are lost by its repeal, unless saved by express words in the repealing section. Moor v. Seaton, 31 Ind. 11. In the case of Virginia & West Virginia Coal Co. v. Charles (D. C. W. D. Va. 1917) 251 F. 83, at pages 128 and 129, the court clearly demonstrates why it holds that inchoate precedural rights are not within the saving clauses of repealing statutes.
“Careful analysis reveals that it has not been the 1933 act which has put the plaintiff in its present predicament in this action, but rather has it been the failure of the plaintiff to maintain its corporate status and its neglect in securing proper liquidation of its assets by the appointment of a receiver upon its dissolution in Illinois. To permit the plaintiff to further maintain this action in its corporate name even though now dissolved, would be to permit a privilege of procedure replaced by the Illinois Legislature. It would be to permit the plaintiff to collect its assets without accounting to the state of Illinois for back and past-due license and franchise taxes, collection of which out of corporate assets is provided by the 1933 act upon appointment of receivers; it would be to permit the plaintiff a mode of procedure found inexpedient by the state of Illinois, and, as such, repealed; it would be to allow the plaintiff a right ‘accrued or established’ by its own derelictions and neglect.”

It appears in plaintiff’s brief and argument that the plaintiff takes the position that the Chicago Riding Club was only a nominal party plaintiff, and that even though it could not have maintained an action against the garnishee, the plaintiff nevertheless is not barred.

The plaintiff also contends that the garnishment proceedings being in the nature of a proceeding in rem and not in personam, the fact that the judgment debtor has been dissolved is of no legal importance, and it is admitted by the defendants that our courts have on numerous occasions made the statement that garnishment proceedings are proceedings in rem rather than proceedings in personam, no case can be cited which would warrant the entry of a judgment against a garnishee defendant, when, as a matter of fact, the judgment debtor had no action and no right of recovery against the garnishee defendant.

The plaintiff in seeking to maintain its action, calls the court’s attention to par. 157.94, ch. 32, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 32.096]. This section of the statute specifically deals with survival of remedies against the corporation, its directors or shareholders, but the present garnishment proceedings are not against the corporation, its directors or shareholders, but, as contended by the defendants, are specifically in favor of the corporation for the use of the judgment creditor and against the garnishee defendants.

From the fact that the Chicago Riding Club was dissolved on June 1, 1938, the trial court did not err in discharging the garnishee defendants and dismissing the proceedings.

There is one other question which we think is important, and that is, it appears from the plaintiff’s fifty $1,000 first mortgage real estate gold bonds that there is a provision in the bond which has a bearing upon the institution of this garnishment proceeding. The provision provides:

“No recourse shall be had for the payment of the principal or interest of this bond against any incorporator, member, director, or officer of the Chicago Riding Club, past, present, or future, either directly or through the club, by virtue of any statute or constitution, or by the enforcement of any assessment, or penalty, or otherwise howsoever, any and all liability of the incorporators, members, directors and officers of the club being hereby waived and released by each successive holder of this bond. ’ ’ The plaintiff, of course, is chargeable with the provisions of the real estate bonds which are owned by him, and the language being broad in its terms, it appears that the plaintiff is barred from any right of recovery against any of the incorporators, members, directors and officers of the Club, and that being so, the plaintiff’s suit against the members as garnishees, is barred by the provision just quoted. That of itself would prevent recovery of the judgment against the garnishee defendants.

Other questions have been called to our attention, but in view of what we have said in this opinion, we believe the court did not err in entering a judgment for the garnishee defendants and dismissing the suit.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., concurs.

Burke, J., specially concurring: I agree with the conclusion reached but not with all that is said.


text:
    Arthur O’Connell, Appellee, v. Chicago and North Western Railroad Company, Defendant. Appeal of City of Chicago, Appellant.
    Gen. No. 41,059.

      Heard in the third division of this court for the first district at the December term, 1939.
    Opinion filed May 22, 1940.
    Rehearing denied June 14, 1940.
    Barnet Hodes, Corporation Counsel, for appellant ; Alexander J. Resa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Thomas M. Morris, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action at law brought by the plaintiff for damages for personal injuries sustained by him when an automobile in which he was a passenger collided with a trestle or girder which was part of the viaduct on North Clari Street over the tracks of the Chicago & North Western Bailroad. The case was tried before the court and a jury, and the verdict of the jury found the defendant city of Chicago guilty and assessed plaintiff’s damages at the sum of $27,500. Motions of the defendant for a directed verdict, for a new trial and in arrest of judgment were overruled. Before denying the motion for a new trial the court directed a remittitur of $7,500. Upon such remittitur the court entered judgment for $20,000. From this judgment the city of Chicago appeals.

The second amended complaint, which is the complaint upon which the cause proceeded to trial, alleges in paragraph 4 that the defendant, city of Chicago, negligently and improperly permitted Clark street at a point where the C. & N. W. B. B. Co. tracks are laid, to become and remain in a dangerous and unsafe condition in that a certain trestle had been placed and permitted to be in a dangerous and unsafe condition in the portion of Clark street used by vehicles; and alleges in paragraph 5 that the city permitted the street to be in an unsafe condition in that the said trestle was permitted to remain without barricades, lights or warning devices.

Prior to the trial the Chicago & North Western Bail-road Co. was dismissed by the plaintiff.

The answer of the city to this complaint denies these allegations.

From the facts that appear in evidence, Clark street extends north and south in the city of Chicago and crosses the Chicago river. Directly north of the bridge over the river is a steel girder 16 inches wide and approximately 4 feet high, which extends along the center of Clark street parallel with the curbing on each side. The southbound street car track on Clark street runs along this girder to the west, and the northbound street car track runs along it to the east. At the north end of the girder a concrete base extends approximately 5 feet. Kinzie street extends east and west and is the next intersecting street across Clark street north of the girder. The distance from the south curb-line of Kinzie street to the north end of the girder is 196 feet. The dimensions herein stated are taken from a plat, which was introduced in evidence and is a part of the record.

The girder was built by the Chicago and North Western Bailroad Company over its tracks in Carroll street in 1910 or 1911, and blueprints produced at the trial showing the details of its construction were taken from the records of the railway company.

At the northeast corner of Clark and Kinzie streets there is a light pole upon which there is a 600 candle power street lamp. At the southwest corner of Clark and Kinzie streets there is another electric light pole supporting a 600 candle power street lamp. On the east side of Clark street, 140 feet south of the south curb-line of Kinzie street, is another electric light pole upon which there is a 600 candle power street lamp. This lamp is approximately 56 feet north of the north end of the girder. 138 feet south of this point on the west side of Clark street there is another electric light pole upon which there is a 600 candle power street lamp. Directly south of the girder there are four 1,000 candle power lamps at the north end of the bridge. All these lights were burning at the time of the plaintiff’s accident.

On Sunday evening, September 27, 1936, one Mrs. Grace McNamara McLaughlin, a married woman unaccompanied by her husband, called for the plaintiff at his hotel. From that place Mrs. McLaughlin took the plaintiff, as he says, to the home of her sister, where persons other than the plaintiff played cards. About midnight Mrs. McLaughlin took the plaintiff in her automobile to a place known as “Schulein’s” at 1800 N. Halsted street, where they arrived shortly after midnight. Schulein’s place is a tavern, where in addition to beer and liquor food is also served. The bar is in front of the place and the meals are served in the rear. The plaintiff and Mrs. McLaughlin were served with meals. They remained in the place until after three o’clock in the morning. The plaintiff insisted in his testimony that neither he nor Mrs. McLaughlin consumed any alcoholic beverages during the period of more than three hours that they were there, but Schulein himself, the proprietor, made it known that the plaintiff and Mrs. McLaughlin had had “a few beers, maybe four or five.” Schulein attempted to account for the length of their stay by saying that he was ‘ ‘ showing them card tricks.”

When the plaintiff and Mrs. McLaughlin left Schulein’s they got into her car and travelled south on Halsted street to North avenue, east oh North avenue to Clark street and then south on Clark street. Mrs. McLaughlin did the driving. The lights on the automobile were on and the plaintiff testified that it was possible to see 70 to 75 feet ahead of the car. The radio was turned on low and at the time of the accident plaintiff was leaning over to turn it on louder. As the plaintiff and Mrs. McLaughlin travelled south on Clark street her car straddled the east rail of the southbound car track. Mrs. McLaughlin was driving at the rate of from 30 to 35 miles per hour, and when she did not slacken, her speed crossing Kinzie street, on which there is an east and west street car line, her manner of driving attracted the attention of a pedestrian standing at the northeast corner of Clark and Kinzie streets, who watched her as she sped up the incline because, as he said, he knew from the way she was driving that she was g’oing to hit the girder. This pedestrian was called as a witness by the plaintiff and he further testified that at the inquest on the death of Mrs. McLaughlin he had testified that from where he stood on the northeast corner of Kinzie and Clark streets he could see the abutment or girder with which Mrs. McLaughlin’s car collided. The police officer who was sent to the scene of the accident shortly after it occurred testified that he saw the girder from Kinzie street, and a driver of a Chicago Tribune truck testified that he passed the place frequently in the course of his work and that he was always able to see the girder from a distance at night. The street was dry. The collision of Mrs. McLaughlin’s car with the girder caused her death and the injuries to the plaintiff for which he is prosecuting this action.

The plaintiff was taken to Henrotin Hospital on September 28,1936, and remained there until December 13th or 15th. From there he was taken to St. Joseph’s Hospital in Joliet, where he remained until the latter part of February, 1937.

At Henrotin Hospital it was found that the tongue was torn from the roof of the mouth, the right ear was cut, and there were innumerable body bruises. X-rays were taken disclosing a spiral fracture at the junction of the middle and distal third of the right tibia, that is the small bone in the leg below the knee. The big-bone was fractured an inch and a half from the lower end. The big bone was fractured three times, the small bone twice. The left leg had one small fracture at the tip of the big bone. About 400 stitches had been taken in plaintiff’s face. There was no skull fracture, but he had suffered a concussion of the brain and was unconscious about 7 to 10 days.

Dr. Graham put a steel spike through the right heel and put on 20 or 25 pounds extension to prevent shortening. When the plaintiff left the hospital he had a cast and walking caliper, that is a steel extension so he could walk on it with the aid of crutches. In March, 1937, the cast was removed. Dr. Graham’s bill was $450. Dr. Talbot’s bill was for $400. After the cast was removed the plaintiff used crutches until June, and then used a cane. At the time of the trial he was still using- an anide brace, and complained of pain in his leg. The ankle swells when he stands on it for any length of time. His lower teeth were knocked out at the time of the accident. At the time of the trial the plaintiff stated that he had no sensation from the lower lip down to the chin, and could not taste. Dr. Joseph Talbot, the dentist, testified that all the teeth in the lower jaw had been broken off and knocked out, part of the lower mandible fractured, a majority of the upper teeth knocked out across the front, and the maxillary had been shattered. X-rays were taken, the remaining teeth or roots were gradually removed and partial dentures were made for him. Dr. Talbot stated that the lower mandible had been so badly injured that no denture could be fitted for him. He testified that a reasonable charge for his services would be $600 or $700.

On January 19,1938, he was examined by Dr. Gfreenspahn who testified that he found a U-shaped scar on the upper lip, a three inch scar running across the chin, and a scar about 3 inches long running from the right ear downwards across the cheek. He found an irregularity along the shin of the right leg at the junction of its middle and lower third, and an irregularity of the outer knuckle of the ankle and a tightening or spasticity of the muscles around the instep and ankle. There was, he testified, a shrinkage of the muscles of the calf and the instep; a shortage of the right leg and a trifle less than one-half inch shorter than the opposite side. When he attempted to flex the ankle he found he could not increase the motions in dorsi-flexion beyond a right angle to the ankle. He stated that there was a permanent impairment of the circulation in the left leg at the lowermost portion of the internal malleolus of the shin bone. The charges from Henrotin Hospital were'$597.50; nurses were paid $203, and $272.98 was charged by St. Joseph’s Hospital.

The plaintiff calls this court’s attention to the expenses that were incurred in the treatment of the injuries sustained by the plaintiff, as well as the loss of his earnings, as follows: Dr. Joseph Talbot, Dentist, $600; Dr. Edwin Talbot, Physician, $450; Dr. John A. Graham, Physician and Surgeon, $400; Henrotin Hospital, $597.50; St. Joseph’s Hospital $272.98, Nurses, $203; 28 months’ loss of work at $300 per month, $8,400, —total $10,922.

The city contends the record discloses that the bridge over the C. & N. W. B. B. tracks was constructed by the Chicago & North Western Bailroad Company in 1910 or 1911. The trestle between the street car tracks was a part of the bridge construction. The existence of this trestle is the basis for plaintiff’s contention that the city was negligent in the maintenance of Clark street, and the defendant points out that the city’s defense is that the bridge and trestle having been constructed by the railroad, and the city having no jurisdiction over the railroad it therefore cannot be held liable for any injuries resulting from their presence; and, that the exclusive jurisdiction over the railroad is now in the Illinois Commerce Commission, has been clearly expressed in a long line of cases, a few of which are cited. One case being Stephens v. Chicago, B. & Q. R. Co., 303 Ill. 49, involving the jurisdiction of highway commissioners to compel a railroad company to remove posts supporting an overhead crossing from the center of a highway. The circuit court had ordered the railroad to remove the obstruction, and the Supreme Court referred to the amendment of section 58 of the Public Utilities Act in 1917 “to bring under the control of the Public Utilities Commission any railroad highway crossing, whether at grade, overhead or by subway.” The Supreme Court upon the question involved said: “The legislature has the power to confer authority over the public highways throughout the State upon such local or State officers as it deems best and may divide the authority in such manner as it chooses. The authority over railroad crossings of highways, the place, manner, terms and conditions of such crossings, their construction, reconstruction, alteration or improvement and the apportionment of their cost, has been conferred upon the Public Utilities Commission. Such authority in its nature must be exclusive.” ' And the cases of Chicago B. & Q. R. R. Co. v. Cavanagh, 278 Ill. 609; City of Chicago v. Alton R. R. Co., 355 Ill. 65, are cited by the defendant in support of its theory that the city having no jurisdiction over the railroads it therefore cannot be held liable for any injuries resulting from their presence.

That is not the question involved in this action. The question is: Did the city give a warning of the character of the construction by lights or printed notice of the location of this girder in the center of Clark street, which street was for the use of pedestrians, automobiles and other vehicles. It does not appear from anything in the record that when the accident occurred, which was at night, there was any light installed at the north, as well as at the south end of the girder which would warn a person operating an automobile that this girder was located in the center of Clark street.

While it is true, as we have indicated in the statement of facts in this case, there were certain electric lights located on Clark street, at the same time the defendant should have warned the drivers of automobiles of the location of the girder in question.

The plaintiff contends that it is the duty of the city to maintain its streets in a reasonably safe condition, and such duty is not questioned by the defendant. From the defendant’s brief this language appears and is cited in support of the statement: “It is elementary that municipal liability for negligence is co-existent with the right to control. ‘In order that a municipal corporation may be responsible for an injury resulting from the condition of a traveled way, it is necessary that such way be a public street or highway which the corporation is bound to maintain and repair ;***’” 43 C. J. 981, Sec. 1764, 2, (1).

It does appear that the courts of this State have supported the rule just announced. In City of Bloomington v. Bay, 42 Ill. 503, the Supreme Court said:

“So in this case, if the sidewalk was originally built by the lot owner, the exclusive supervision being in the city authorities, they must see to the repairs and to its safety, ...” And further, in the case of City of Chicago v. Johnson, 53 Ill. 91, the court said: “By the charter of the city of Chicago, which is a law of this State, the control of the public streets is given to the city, and the Board of Public Works of the city is required to take special charge and superintendence over them, and the common council are authorized to cause the streets to be filled, graded and paved, and to keep them in repair.” And it further appears from the language of the court in City of Decatur v. Fisher, 53 Ill. 407 that — “The authorities of a city, under whose control are its streets and sidewalks, have been held liable in damages for injuries received by reason of their being out of repair.” To the same effect is the case of City of Sterling v. Thomas, 60 Ill. 264. See also Wilmot v. City of Chicago, 328 Ill. 552; Farson v. Fogg, 205 Ill. 326.

It does appear in the instant case that the trestle or abutment against which the plaintiff collided was a legalized obstruction. In other words, it was permitted by reason of the contract entered into with the defendant and the Chicago & North Western Railroad Company to construct the viaduct, so-called, of which this girder was a part. In the case of City of Aurora v. Rockabrand, 149 Ill. 399, upon the question of lighting the highway the court said:

“It will not do to say that an electric light upon a street, however bright, can always take the place of danger signals, where temporary obstructions are placed upon the street. The object of a danger signal is to direct the attention to a particular object, and warn those approaching, of something unusual. The electric light may enable those passing over the streets to see their way, and avoid others, and things generally found on the street, but they give no special warning whatever, and, as is well known from experience, are often deceptive and bewildering.”

As in the case of Wells v. Village of Kenilworth, 228 Ill. App. 332, failure to so light or signal danger has been held to constitute at least prima facie evidence of negligence. Upon that question this court said:

“Principles underlying such a situation are that when a municipality places an obstruction in one of its highways it is charged with the duty of properly guarding it and placing warning signals thereon so it will not constitute a danger to traffic, and it is a question for the jury whether or not this has been properly done. City of Chicago v. Brophy, 79 Ill. 277; City of Salem v. Webster, 192 Ill. 369; Hanrahan v. City of Chicago, 289 Ill. 400; City of Aurora v. Rockabrand, 149 Ill. 399; City of LaSalle v. Evans, 111 Ill. App. 69.”

From the record in the instant case, the nearest street light was 58 feet to the north and about 20 feet to the east of the obstruction, and it is suggested by the plaintiff that at least one witness stated that no light fell on the trestle. Another witness, speaking of lights, had this to say: “hieither that night nor on any other occasion during the eight years prior to 1936 did I ever see light on that trestle nor any warning device of any kind.” Specifications of the bridge, approved by the city 30 years ago, which are a part of the evidence, contain no provision for a light at this point in the construction. The trestle itself was a dirty, grayish black in color, blending in with the roadbed, and of course a jury was to pass upon the facts and whether from the evidence the condition was such that the city was guilty of failure to properly warn the plaintiff by a light at the north end of the girder. We all understand that the public had the right to the use of Clark street in going-south or north, and it was the duty of the city to maintain the condition of the street so as not to cause injury by the driving of an automobile in approaching and going over this roadbed.

The defendant contends the evidence clearly shows that the only tortious cause of the plaintiff’s injuries was the reckless driving of the woman in whose car hé was riding, and there is evidence in the record that at the time the plaintiff was riding and approaching- this intersection the car was being driven at a rate of speed of between 30 and 35 miles per hour, and that that rate of speed was more than sufficient to constitute prima facie evidence of negligent driving at the time and place in question.- Of course this question, under the instructions of the court that were given at the time, was a question for the jury, who passed upon it, and it does not appear from the rate of speed the car was being driven that it was such as to create in the mind of the plaintiff, who was a passenger, that the car was being operated at a reckless rate of speed, and it is suggested by the plaintiff that the driver of the car in which the plaintiff was a passenger was alone guilty, if any negligence was committed, and that the question was properly submitted to the jury, who answered it, and this negligence, if any, under the circumstances in the particular case was not imputed to the plaintiff.

The verdict and judgment is complained of by the defendant as being so grossly excessive that it cannot be cured by remittitur consented to by the plaintiff, and therefore that a new trial should have been granted. The verdict of the jury found the defendant guilty and assessed plaintiff’s damages at $27,500. The defendant filed its motion for a new trial, urging among other things that the amount of damages awarded by the verdict and the judgment was excessive. The court after hearing arguments, stated:

“I think of course that the verdict in this case is entirely out of line; $27,500 is not justified. I think however that a substantial amount would be justified, and I think that amount, under all the circumstances, ... a verdict of $15,000 would be a fair and just sum in this case. . . . Well, that is the conclusion I have arrived at Mr. Morris. Now, you can have a new trial. I would just as soon give you a new trial as not because there is plenty in this record that I do not like but I still feel that if you feel that way about it I will give you a new trial. ... I will give you a new trial unless you are willing to remit down to $15,000.”

It is suggested by the defendant that the court was convinced that the verdict was excessive and that he was prepared to order a new trial, because, as he said, there is plenty in this record that he did not like, and cases are cited in support of the defendant’s contention. Subsequently however, the court made this statement:

“Well, I have the list of expenses that the plaintiff incurred here before me, as submitted by Mr. Morris, and have been thinking this matter over; and I believe that I was probably a little hasty — well, not hasty, but I may say arbitrary in reducing it to $15,000, and I think that $20,000 would not be out of line.” and upon a remittitur having been entered with the consent of the plaintiff the verdict was reduced to $20,000 and judgment for that amount was entered.

It must be borne in mind that the court at no time after making the statement first above quoted, entered any order, and the court, upon further consideration, as we have indicated, was of the opinion that he was a little bit arbitrary in suggesting a reduction of the verdict to $15,000, and under the circumstances, as we view the record in this case, the defendant was not punished, as it states, by an increase from $15,000 to $20,000, for the reason that the court did not at any time enter an order, and after he suggested this amount he later changed it to the amount which he thought was proper, and we are of the opinion that the matter still being before the court, the court properly entered the amount that he believed was justifiable under the facts, and as he stated, in view of the expenses and losses that were sustained by the plaintiff, the amount that was finally entered was fully justified by the record.

And further, there does not seem to be any question offered that the giving of any of the instructions to the jury was objectionable, so that we have but the question as to whether the facts sustain the claim of the plaintiff, and as we have suggested, there is no error in this record, and accordingly the judgment is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.


author: Mr. Justice Hebei,

text:
    Bituminous Casualty Corporation, Appellant, v. Robert Folkerts et al., Board of Directors of School District No. 83, Appellee.
    Gen. No. 41,086.
    Heard in the third division of this court for the first district at the February term, 1940.
    Opinion filed May 22, 1940.
    Howard E. DeLong, of Chicago, for appellant; E. C. Frank Meier, of Chicago, of counsel.
    Guy C. Guerine, of Chicago, for appellee.
   Mr. Justice Hebei,

delivered the opinion of the court.

This is an action by the plaintiff to recover insurance premiums on a certain workmen’s compensation insurance policy under a contract in writing alleged to have been entered into with the defendant.

Plaintiff appeals from a judgment rendered against it in this action, which action was brought by it against the defendant for the recovery of certain unpaid premiums of insurance on a workmen’s compensation policy in the amount of $1,080.16 and interest.

The cause was heard before the court without a jury, upon complaint as amended and answer and additional answer and upon evidence offered by the parties.

From the facts as they appear in this record, it appears that by the terms of the insurance policy received in evidence the plaintiff agreed with the defendant to pay promptly to any injured employee of the school district, or to his dependents entitled thereto, benefits as provided by the Illinois Workmen’s Compensation Law.

The plaintiff undertook to defend all suits or proceedings against the school district on account of any such injury and to pay all costs accruing in legal proceedings. It also appears that this contract was to apply to all such injuries sustained by any person or persons employed by the defendant; that the policy was to apply to all such accidental injuries sustained by the operations described in said policy, during the policy period, subject to certain conditions named, the premium to be based upon the entire payroll of employees during the policy period while engaged in the business described, together with all operations incident or appurtenant thereto, or connected therewith. The contract further provided that if any operations as therein defined were undertaken by the school district which were not described or rated in said policy, the school district was to pay the premium thereon at the time of final adjustment in accordance with the provision contained in the policy and at the rates and in compliance with the rules provided for and in use by the plaintiff upon the date of issue of the policy.

It appears from the record that the defendant, School District No. 83, is a school district in a rural part of Cook county, having a population of 450. It expended from $3,000 to $3,500 annually, in operating the school district. Arnold J. Wieck and Paul Surak were directors of the school district in the year 1935. Arnold J. Wieck was secretary of the Board and Paul Surak was president of the Board. The Board consisted of three members.

Regular meetings of the Board were held once a month at the school building, and occasionally, by agreement of the directors, meetings were held at the homes of the members of the Board.

The Board of Directors held their regular March meeting on March 28, 1935, and their regular April meeting on April 15,1935. Both of these meetings were held at the school building. No other regular or special meetings were held in these months.

It further appears from the facts as presented to the trial court that on the morning of March 10,1935, while Arnold J. Wieck and Paul Surak, directors, were on the school grounds they were approached by an insurance agent, who advised them to buy an insurance policy. Mr. Wieck and Mr. Surak instructed the insurance agent to ascertain the cost of a policy. Several days later a policy was delivered by the insurance agent, who stated that the policy was very reasonable, costing only $147 and because it was so cheap he had taken the liberty of bringing a policy with him. Mr. Wieck consulted Mr. Surak, the president of the Board. Together they agreed that the charge of $147 was reasonable and they decided to take the policy. The other member of the Board was not consulted on this subject. Later a bill for $147 was sent to Mr. Wieck and he drew an order for payment and had the president sign it. It was then mailed to the insurance agent.

It does not appear from the records of the School Board or anything that was called to the attention of the trial court that a regular or special meeting was held for the purpose of authorizing the purchase of the policy, or for the payment of the bill. Neither the bill nor the policy was presented, accepted or approved at any meeting of the Board of Directors of the school district, and it does not appear from anything in the record that the members of the Board were informed that the total premium would amount to $1,227.16. The only evidence is what the agent told the members at the time the policy was delivered, and that is that $147 was all the policy would cost.

The minutes of the regular meetings held in the years 1935 and 1936 were introduced in evidence. It does not appear from the record that there was any authorization for the purchase of the policy or for its payment. As soon as the defendant learned that an additional premium was to be charged, the policy was returned to the insurance agent, with instructions to cancel it.

Upon conclusion of the hearing the court entered the judgment for the defendant, as we have stated.

In the consideration of the questions that are involved in this litigation, it is well to have in mind the section of the statute applicable thereto. Ch. 122, par. 119, sec. 111, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 123.126] provides: “No official business shall be transacted by the directors except at a regular or special meeting.” Section 112 of the same act [Ill. Rev. Stat. 1939, ch. 122, par. 120; Jones Ill. Stats. Ann. 123.127] also provides: “The clerk shall keep in a punctual, orderly and reliable manner, a record of the official acts of the board which shall be signed by the president and clerk, and submitted to the township treasurer for his inspection and approval on the first Mondays of April and October, and at such other times as the treasurer may require. On all questions involving the expenditure of money, the yeas and nays shall be taken and entered on the records of the proceedings of the board.”

In the case of Ready v. Board of Education, School Dist. No. 103, Madison County, 297 Ill. App. 342, where like questions were involved, this court said:

“Section 127, ch. 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.145] provides that a board of education shall have all the powers of school directors and be subject to the same limitations. Section 112, ch. 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.127] directs that the clerk shall keep in a punctual, orderly and reliable manner a record of the official acts of the board and that on all questions involving the expenditure of money, the yeas and nays shall be taken and entered on the records of the proceedings of the board. Such provisions are mandatory and a failure to observe them is fatal. People v. Chicago & E. I. Ry. Co., 314 Ill. 352; Crawford v. Board of Education District No. 88, 215 Ill. App. 198. The purpose of the statute in requiring a yea and nay vote and the recording of the same is to give the taxpayers an opportunity to know how each member voted. The method followed by defendant appellee gives no such information and is in direct violation of the statutory provisions. The verbal acceptance of employment by plaintiff appellee did not operate as a waiver of the statutory requirements for they were enacted for the benefit of the taxpayers of the district and no liability could be created against the district except by a compliance therewith.”

The defendant contends that in the present case the solicitation by an insurance agent on the school grounds of two members of the Board, granting the most liberal construction, can hardly be called an official act of the school board; neither can it be said that the delivery of the policy to the clerk at his home with a statement that $147 was all the policy would cost, can be termed an official action of the School Board, and cities in support of its position the case of Shortal v. School Directors of Dist. No. 27, County of Jersey, 255 Ill. App. 89. The same question was presented to the Appellate Court, Third District. In that case two of the school directors went to the farm of the third director for the purpose of discussing the reemployment of one of the teachers. After a general discussion one of the directors said, “Whatever you and the other director do will be all right with me. ’ ’ Two of the directors then notified the teacher that she had been re-employed. The clerk of the school district wrote the following in his minute book: “May 5, 1927, Truman Scribner and Logan Clendenny after having met Ed. G-reenwalt at George Krause’s on the day of the school picnic, May 5,1927, re-employed Mrs. Anne Shortal to teach for the year 1927-1928 at $90.00 per mo. Logan Clendenny, Clerk.” and the Appellate Court in passing upon this proceeding said:

“The meeting of the directors at Krause’s farm cannot under the most liberal construction be deemed either á regular or a special meeting thereof. There is no evidence to show that it was a regular meeting and the evidence conclusively shows that it was not a special meeting called in the manner provided by the statute. It has been repeatedly held by the courts of this State that business attempted to be transacted at casual meetings of the members of school boards and similar bodies has no legal significance or validity. One of the earliest cases involving this question is that of School Directors v. Jennings, 10 Ill. App. 643, where it was held :‘We are inclined to the opinion, therefore, that under the law as it existed at the date of the contract sued on in this case, the directors had no power to employ a teacher, except at a regular or special meeting of the board, and unless it is shown that the plaintiff was appointed at such a meeting, the contract of the directors with her was entered into without authority of law and is incapable of enforcement.’ ”

A question of like character was passed upon and approved in the case of Scanlan v. Board of Directors, Dist. No. 39, 245 Ill. App. 357.

In the case of Kimmel v. Board of Education Marion School Dist. No. 52, 244 Ill. App. 257, upon the question involving the hiring of a school principal, this court said:

“The Board of Education shall have all the powers of school directors and shall be subject to the same limitations. Callaghan’s Ill. St. Ann. ch. 122, j[ 137. The clerk shall keep in a journal a record of the official acts of the Board and on all questions involving the expenditure of money the yeas and nays shall be taken and entered on the records of the proceedings of the Board. Callaghan’s Ill. St. Ann. ch. 122, j[120. It has been held that provisions of that nature are mandatory and a failure to observe them is fatal. People v. New York Cent. R. Co., 314 Ill. 429; People v. Chicago & E. I. R. Co., 314 Ill. 352. This court applied the same rule where the employment of a principal was involved. Crawford v. Board of Education Dist. No. 88, 215 Ill. App. 198.

‘ ‘ The employment of appellee involved the expenditure of money. The motion to employ him was not carried by a yea and nay vote taken and entered upon the record of the proceedings of the Board as required by the statute. On the contrary the record shows that he was employed upon a secret ballot. That being true, we are of the opinion that the president and secretary of appellant were without authority to execute the contract upon which this suit was brought. The judgment is reversed at the costs of appellee.” And in the ease of Board of Education Union Dist. No. 4 v. School Directors of Dist. No. 90, 213 Ill. App. 91, in discussing Armstrong v. School Directors of Dist. No. 128, 160 Ill. App. 430, where the question arose as to whether the plaintiff was properly employed as a teacher, the court in holding that the contract was not binding on the district, held that a conversation with two directors at a casual meeting was of no avail and even though the third director was temporarily out of the State at that time, did not dispense with the requirement that a meeting should be called.

And then in the case of National Bank of Decatur v. Board of Education, of Decatur School Dist., 205 Ill. App. 57, the court held that the power of a school board to enter into a contract on behalf of the school district must be exercised by them as boards, as provided for by statute. The court said:

“It is said in ‘Cyc.’ vol. 35, page 958:
“ ‘The power of a school board or committee to enter into contracts on behalf of the school district must be exercised by them as boards and not as individuals; and hence it is necessary, in order that such a contract may be binding, that it be authorized or executed at a board meeting regularly adjourned to, or regularly called, at which all the members of the board are present or have had notice to be present. ... In accordance with these rules a contract is not binding on the district, if it is executed by members of the board acting separately and individually and not as a body convened for the transaction of business, although it is actually executed by a majority of the board....’ ”

So when we come to consider the facts in this case, the policy of insurance was not approved by a yea vote of the members of the School Board at a meeting called for the purpose of transacting business and entered upon the records of the school board, and it is apparent that the president and the secretary of this School Board were without authority to execute the contract or approve the issuance of the contract in question and upon which the plaintiff instituted suit. Upon an examination of the School Board records we are unable to find anything which would indicate that this insurance policy was approved at a meeting of the School Board at which all the members were present or had notice of such meeting, and it does not appear that even the $147 that was received by the insurance company was before the Board at which a yea or nay vote was taken to approve this payment.

The plaintiff, however, suggests that where a school district has negotiated a contract within its general powers irregularly or by one not authorized, but nevertheless permits the other party to fulfill its obligation or obtains benefits by reason thereof, such school district will be held liable on its implied contract, and points to authorities under a classification of cases which hold that where a municipal corporation has been unjustly benefited by means of an unauthorized or irregular contract which it was within the general powers of the corporation to make, even though there can be no action brought upon the contract itself, nevertheless the corporation would be held liable on an implied contract under the same principles as would be applicable to an individual. The authorities cited are: McQuillin on Municipal Corporation, sec. 1280, vol. 3, p. 835; Hall v. County of Cook, 359 Ill. 528. The latter case was an action brought by the plaintiff to recover for services rendered as an architect in drawing plans for a civic auditorium. The Supreme Court in speaking of this action said: ‘ ‘ There was a valid employment of the plaintiff. Cook County assumed, before there was any enabling act, to have the power to construct a civic auditorium as a building necessary for the residents of the county. ’ ’ There it is to be noted the Supreme Court speaks of a “valid employment of the plaintiff.” In the instant case there was not a valid contract entered into between the plaintiff and the school district, and of course there could be no recovery. The only authority the members of the school district had in that instance was that provided for by the statute that we have quoted, and there being nothing in" the record to show that a contract was entered into of the character the plaintiff claims it provided at the request of certain members of the school board, there was no approval and recording of the contract, as required by law.

Other cases similar to the Hall case are cited, but they are not applicable to the instant case.

The plaintiff called the court’s attention to the case of the Bituminous Casualty Corp. v. City of Harrisburg, 303 Ill. App. 75 as having a bearing upon the question involved in the instant case. The court reversed the judgment entered upon a directed verdict for the defendant and directed that the facts are “sufficient to warrant the court in submitting that question to the jury under proper instructions as to what would amount to a hiring or to employment.”

It is to be noted that a contract was entered into by the parties in the above case which is not the case in the pending action and of course does not apply.

There are other questions, but in view of the fact that we have reached the conclusion that the contract was not entered into between the plaintiff and the school district as required by law, it will not be necessary to pass upon these further questions.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J. and Burke, J., concur.


text:
    Fullerton Greenview Amusement Corporation, Appellant, v. Hollywood Building Corporation and Greenview Amusement Company, Appellees.
    Gen. No. 41,126.
    Heard in the third division of this court for the first district at the February term, 1940.
    Opinion filed May 22, 1940.
    Rehearing denied June 14, 1940.
    M. A. Gordon and Hershenson & Hershenson, all of Chicago, for appellant.
    Arnd, Griffin & Hanley, of Chicago, for appellee Greenview Amusement Co.
   Mr. Justice Hebel

delivered the opinion of the court.

The plaintiff as a tenant filed in the municipal court of Chicago on October 26, 1939, a forcible detainer action against the Greenview Amusement Company, a tenant in possession of the premises in question, and Hollywood Building Corporation, the owner. This action is for the possession of the premises known as the Hollywood Theatre located at 1500 West Fullerton avenue, Chicago. At the close of the plaintiffs’ proofs, the defendant, Greenview Amusement Company, moved to dismiss the case; whereupon, on November 8th, the court granted the motion of defendant and entered a judgment against the plaintiff.

The pleading that was filed as required by statute is a complaint wherein the plaintiff alleges that it was entitled to the possession of the premises described therein, and that after the execution of a lease by the owner of the premises in question to the plaintiff, the plaintiff served a demand for possession on the Green-view Amusement Company, the tenant in possession, and the Hollywood Building Corporation, the owner of the premises. It appears from this demand for possession that the plaintiff demands immediate possession of Hollywood Theatre, being the theatre premises located in the building at 1500-08 Fullerton avenue, Chicago, Illinois, and is dated the 26th day of October, 1939, and signed “Fullerton Greenview Amusement Corporation” by “M. A. Gordon.” Receipt of a copy of said demand for possession on the 26th day of October, 1939, was acknowledged by the Hollywood Building Corporation on the face of the written demand for possession.

It further appears that there is a sworn affidavit attached by R. Lichten that he did on October 29, 1939, serve the above-mentioned demand for possession on the said Greenview Amusement Corporation by delivering a copy to Miss Hill at the address of the premises in question.

It appears further from the evidence that the defendant’s lease to the premises is for a term commencing February 1, 1938-, and terminates on January 31, 1953. This term of 15 years is divided into 12-month periods (each of which is referred to as a lease year), the first of which commenced as of February 1, 1938, and terminated on January 31,1939, and every succeeding lease year shall commence on February 1st following and shall terminate on January 31st, following thereafter. It further appears that whenever the word “annual” is used, it is meant to refer to a 12-month period or a lease year. The term “gross annual receipts” means all paid admissions to the theatre received by the defendant during each lease year of the term. The term “annual rents” means the amount of rent payable by defendant during each lease year on gross annual receipts. The lease also provides that the defendant shall pay lessor the sum of Five Hundred ($500.00) Dollars, on the first day of each month until the expiration of the lease, and shall pay annually 15 per cent of the gross annual receipts in excess of $40,-000, as additional rent. All computations for additional rent payable under said lease were to be made on the “lease year” basis, the defendant to deliver to the lessor by the first day of April of each year a statement certified by an accountant satisfactory to lessor of the gross annual receipts of the preceding year and, within 90 days after the end of each lease year, a cash adjustment, if any, for such lease year with respect to any additional rent due, was to be made between this defendant lessee and lessor.

The plaintiff in this action contends that said lease became terminated, first, because this defendant did not provide an audit of its annual receipts on or before April 1, 1939, and second, because the defendant failed to remove a portion of the canopy which was constructed over the entrance to the theatre. There is no claim made nor is there any evidence in the record tending to prove that this defendant is in default of payment of rent of Five Hundred ($500.00) Dollars per month in accordance with the terms of the lease, or that defendant has ever been in default in making such payments."

The question that seems to be the controverted one is whether the defendant’s failure to submit an audit on April 1,1939, is a sufficient default under the lease entitling the plaintiff to bring this action. No request was made by the lessor to furnish such audit until July 24, 1939. In response to the request, the attorney for the defendant lessee, on August 2, 1939, wrote a letter to lessor in which he enclosed an audit of defendant lessee’s bookkeeper, showing that the gross receipts of said defendant for the preceding lease year, from February 1, 1938, to January 31, 1939, were Thirty-Nine Thousand Six Hundred Fifty One and 19/100 ($39,651.19) Dollars, to which said letter the lessor replied in a letter dated August 10,1939, stating: “This is to inform you that the statements received are not in compliance with the terms of the lease and that your failure to comply with the terms of the lease constitutes an event of default. ’ ’ The defendant lessee subsequently employed a firm of certified accountants, who audited the books of this defendant and found that the gross receipts for said lease year in excess of $40,000 were $1,383.98, 15 per cent of which amounted to $153.39, and check for said amount was sent November 4,1939, to the lessor and by it retained.

It also appears in this case that the plaintiff claims the right of possession under a lease from Hollywood Building Corporation to plaintiff, bearing date of October 15,1939, for a term of 15 years.

It is suggested by the plaintiff that defendant’s lease was terminated for a default in failing to cut down the canopy to conform to the widening of Fullerton Avenue. Lessor demised to the defendant the canopy as a part of the building located at 1500-08 Fullerton avenue, Chicago. The canopy there is the same canopy as has been there since 1931. At the time of the making of the lease in question to defendant, the canopy did not extend beyond the side walk. The side walk at that time was approximately 14 feet wide, and is now approximately seven feet wide, due to the widening of the' street, and causing said canopy to protrude over Fullerton avenue. The defendant lessee contends that their lease does not provide for a contingency of such nature, and that even though it did so provide, making it the duty of said defendant to make changes needful to meet the new conditions, the plaintiff would not be entitled to maintain a proceeding to dispossess this defendant, and that plaintiff cannot avail itself of rights to which the lessor could not have availed itself.

In the lease there is a provision wherein the lessor demised to the defendant the premises therein described, which includes the canopy, and there is a further provision that the ‘‘lessee shall, at all times during the term of this lease, maintain and operate, at its own expense, the electrical sign and canopy at present installed in the front of the demised premises and shall have the right, on thirty days prior written notice to the lessor, to take down, remove, alter, modify, replace or substitute a new sign for such sign or a new canopy for the canopy so installed....”

It further appears that on August 10, 1939, the lessor notified lessee among other things that “demand is hereby made upon you of immediately remodeling the canopy which now extends into the street. Your failure to maintain the canopy in accordance with the Ordinances of the City of Chicago likewise constitutes an event of default. ’ ’ When we come to observe the facts as they appear we find that after the writing of this letter to defendant dated August 10,1939, the present forcible detainer action was filed in the municipal court on October 27,1939. It does not appear that the defendant at any time refused to comply with the ordinances of the city of Chicago that control a situation such as we have in this case, and it is also to be noted that the plaintiff does not in its brief call our attention to the provision of the ordinances that the defendant violated, and which is contended is a default in the performance of provisions of the lease between the lessor and this defendant. It does not seem as though a reasonable time has elapsed between the time of this demand and filing of the suit, sufficient to indicate that defendant was in default, especially when no ordinances are called to our attention, which are claimed to have been violated by the defendant.

This, together with the fact that rent which was to be paid each month during the period of the lease, as far as appears from this record, was paid promptly, and the audit was complied with, and the amount of $153.39 found due and paid.

The plaintiff had its dealings with the lessor and a lease was entered into between the plaintiff and lessor bearing date of October 15, 1939, for a period of 15 years, which would indicate that the purpose of the plaintiff was to obtain the possession of these premises by this proceeding, and the lessor, although made a defendant in the proceeding, did not take any part in the litigation, so that from what we have stated in this opinion, we have reached the conclusion that the trial court’s action was not erroneous in entering the order dismissing the action and entering judgment for the defendant.

For the reasons stated the judgment will be affirmed.

Affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.