text:
    Frank W. Harvey v. Carlos A. Cook.

      Agency—Action for Commissions for Procuring Advertising Contracts —Burden of Proof—Acceptance—Misconduct of Agent—Fraud—General Issue—Instructions.

    1. An instruction which purports to embrace every element necessary to a recovery, is defective if any material element is omitted.
    2. An agent is entitled to his commissions only upon a due and faithful performance of all the duties of his agency.
    3. The construction of written contracts is a question of law and can not be submitted to the jury.
    4. In an action to recover commissions for procuring certain advertising contracts, it is held: That the undertaking of the plaintiff was to procure contracts of a particular description to be signed by persons of a definite description; that the burden of proof was upon him to show performance; that the reception by the defendants of the papers in question, without inquiry as to the genuineness of the signatures, did not relieve the plaintiff from the burden of proof; that certain instructions were defective; and that the defendant had the right under the general issue to show gross misconduct, fraud, negligence and nnskillfulness by the plaintiff in the performance of his duties as agent.
    [Opinion filed December 7, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Johit P. Altgeld, Judge, presiding.
    This action was brought by appellee Cook against James JV1. and Frank Harvey, doing business as clothing merchants under the firm name of Harvey Brothers, to recover commissions upon 362 advertising contracts with the publishers of different newspapers procured by Cook as agent for Harvey Brothers for that special purpose. Before trial James M. Harvey died, and the suit was carried on against the other defendant as surviving partner. Upon trial by jury, a verdict was rendered against defendant for $1,810 damages, and the court requiring the plaintiff to remit $1,000 of that sum, gave judgment for $810 besides costs, from which this appeal was taken by defendant.
    Plaintiff proved that procuring advertising was his profession or business and had been for twenty-three years. . To show his authority to act for Harvey Brothers, he proved their signatures, and gave in evidence the following:

      “ Chicago, Oct. 6, 1882.
    66 In order to secure general newspaper advertising, we hereby authorize C. A. Cook & Co., Chicago, Ill, to make all advertising contracts in our name with the publishers of different newspapers, in accordance with the printed • agreement or form for that purpose.
    66 In consideration of the said C. A. Cook & Co. making such advertising contracts, we hereby agree to pay to C. A. Cook & Co. the sum of five dollars on each J- or 25 per cent. contract for each and every contract signed by the publishers on the delivery to us of said contracts.

      “ Signed, Harvey Bros.,
    “ 84 and 86 State St.”
    The plaintiff testified that the form of the advertising contracts referred to in the above, was the same as one he held in his hand. That he had procured 362 of them and delivered them to defendant, all in the same form but differently signed. The one he held in his hand was then given in evidence, and was as follows:
    “ Advertising Contract ) and ° > Chicago, October, 188%. Agreement. )
    “We hereby agree to furnish to the publishers, or order, below named, such clothing as may be ordered on the terms and conditions of the contract hereunder written and printed.
    Signed, Harvey Brothers.
    “I hereby agree to publish in the Valparaiso Avalanche, published at Valparaiso, Townlen Co., State of Nebraska, the advertisements of Harvey Bros., Chicago, Ill., as per copies to be furnished at any time, and to be inserted as ordered at our lowest cash rates, to the amount of $50.
    “ The payment for the said advertising is agreed to be made by Harvey Brothers in fine clothing, at their regular cash prices as follows: On all clothing ordered by us under this contract, we are to receive from Harvey Brothers a discount of one-fourth, or 25 per cent, (excepting during their special discount sales) until the amount, $50.00, charged for advertising, is canceled by said discounts.
    “ |^°N. B.—This contract is goodo for $200 in clothing 'as specified, can be ordered at any time and in lots to suit the holder of this contract.
    “We also agree to mail copy of our paper regularly, containing said advertising, to Harvey Brothers, 84 and 86 State Street, Chicago.
    Accepted, S. M. Weed.
    “Dated, Oct. 28, 1882.
    “tcgrbPlease fill up date, sign, and return this to C. A. Cook & Co., Chicago.”

      There was a conflict of testimony as to the above being the form of contract to be adopted, and it was claimed by defendant that after a form had been decided upon the plaintiff caused material alteration of it without defendant’s assent thereto.
    There was no proof in the case that the signatures of publishers, purporting to be affixed to the alleged 362 advertising contracts, were any of them genuine, or that Harvey Brothers, or either of them, had any knowledge or information as respected the matter. The only evidence relied upon in that behalf was two receipts which Cook had prepared and taken respectively with two batches of contracts, as follows:
    “ Chicago, Oct. 21, 1882. ¡Received of C. A. Cook & Co., sixty-six advertising contracts, as per agreement, at §5 each.
    “ Harvey Brothers.”
    “ Chicago, Oct. 25, 1882. ¡Received of C. A. Cook & Co., ninety-six advertising contracts, as per agreement, at |>5 each.
    “Harvey Brothers.”
    The defendant offered to prove that Cook prepared the form of contract, and that it was made indefinite, and making it so was part of a fraudulent scheme on the part of Cook; also, that Harvey Brothers neither derived any benefit from the said advertising contracts, or any of them, on account of their form. But the court, on objection by plaintiff, excluded the evidence.
    The court instructed the jury on behalf of the pla'ntiff as follows:
    “ 1st. If the jury believe from the evidence that Harvey Brothers on or about October 6,1882, executed the written document which has been offered in evidence, authorizing the plaintiff to make the advertising contracts therein referred to, and that the plaintiff did afterward, in pursuance of said authority, procure and deliver to said Harvey Brothers a large number of advertising contracts, such as he was by said document authorized to make, then the jury should find the issues for the plaintiff, and in such case the measure of damages will be the contract price agreed upon between the parties for the procuring of such advertising contracts.

      “And the jury are instructed that if they believe from the evidence that at the time of the delivery of such contracts to the defendants, no question was made about the genuineness of the signatures to such advertising contracts, and that the defendants accepted said contracts as having been properly signed, or signed by the parties purporting to have signed them, then it was not necessary in the first instance for the plaintiff to introduce evidence on his part as to the genuineness of such signatures.”
    Mr. Henry W. Magee, for the appellant.
    Mr. Frederic Ullman, for appellee.
   McAllister, J.

On the trial, the plaintiff below gave evidence tending to show in a general way that he had procured for Harvey Brothers 362 advertising contracts, and claimed that, under the contract with them, dated October 6, 1882, lie was entitled to a commission of $5 upon each. Ho direct evidence as to the genuineness of the signatures of the purported publishers appearing thereon, was offered; but he produced in evidence a written acknowledgment signed by Harvey Brothers, dated October 21, 1882, of the reception by them from him of sixty-six advertising contracts as per agreement at $5 each; also another dated October 25, 1882, for ninety-six and couched in the same language.

By the first branch of the first instruction given for the plaintiff the jury were directed (after a reference to said contract of October 6, 1882, authorizing the plaintiff to make the advertising contracts therein referred to) that if the plaintiff afterward, in pursuance of said authority, procured and delivered to Harvey Brothers a Large number of advertising contracts, such as he was by sa/id docu/ment authorized to malte, then the jury should find the issues for the plaintiff, and in such case the measure of damages will be the contract price agreed upon between the parties for the procuring of such advertising contracts. That instruction purports to embrace every element necessary to a recovery.

The contract of October 6, 1882, contains this stipulation: “ In consideration of the said 0. A. Cook & Oo. making such advertising contracts, we hereby agree to pay to G. A. Cook & Co. the sum of 85 on each ¿ or 25 per cent, contract for each and every contract signed by the publishers, on the delivery to us of said contracts.” ' In looking at the whole instrument, it will be perceived that aside from the • advertising contract being signed by the publishers, they were to be in accordance with a printed agreement or form for that purpose.

The generally accepted rules as to an agent’s right to commissions, are stated in Story on Ag., Sec. 331: “ The agent is entitled to his commissions only upon a due and faithful performance of all the duties of his agency in regard to his principal. For it is a necessary element in all such cases, that, as the commissions are allowed for particular services to the principal, it is a condition precedent to the title to the commissions that the contemplated services should be fully and faithfully performed.” Hoyt v. Shipherd, 70 Ill. 309.

The above instruction contains no hypothesis as respects the genuineness of signatures or of the fact of the persons purporting to have signed being in reality publishers of newspapers; and it avoids doing so by the substitution of the hypothesis that the advertising contracts were “such as he was by said document authorized to make.” What was that but the submission of a question of law to the jury ? It is manifest that the jury could determine the point thus submitted only by construction of the original written contract and of the several advertising contracts. The construction of written instruments is always a question of law.

By the second branch of the same instruction, or more properly, the second instruction for plaintiff, the court directed the jury that if, at the time of the delivery of such contracts to the defendants, no question was made about the genuineness of the signatures to such advertising contracts, and the defendants accepted said contracts as having been properly signed, or signed by the parties purporting to have signed them, then it was not necessary in the first instance for the plaintiff to introduce evidence on his part of the genuineness of such signatures.

The hypothesis embraced does not include the matter of the persons who purported to have signed, being, in fact, publishers of newspapers. The undertaking of the plaintiff was to procure for defendants advertising contracts of a particular description to be signed respectively by persons of a definite description.

The performance of that undertaking by the plaintiff was a condition precedent to his right of recovery, and the burden of proof was upon him to show such performance, or that the defendants, by some act, had lawfully discharged him therefrom. The reception by the defendants of the papers in question of plaintiff, without any question on the part of the former as to the genuineness of signatures, could have no effect to relieve the plaintiff from the burden of proof, because the law imposed no duty upon the .defendants to make such question or inquiry at that time. The law gave them such time thereafter as would, under all the circumstances, be reasonable, in which to ascertain those matters. Take, for instance, the case of a delivery under an executory contract of sale of goods of a particular quality or description, or under a sale by sample, the buyer is not bound to make inquiry at the time of delivery, but has such time thereafter as is reasonable under all circumstances in which to ascertain the true quality or description of the goods delivered. So that in order to discharge the plaintiff from performance or relieve him from the burden of proof it was necessary that something more should have been embraced in the instruction. It should have contained the hypothesis that the defendant received the papers with the intention of waiving all inquiry respecting the genuineness of signatures, or that the reception of them on their part was with the intention to retain them as in full compliance with and satisfactory fulfillment of the original contract. And such intention must have been manifested in a way to be ca¡3able of proof.

The instructions referred to werfe erroneous and misleading for the reasons stated.

We are of opinion that the defendant had the right under the general issue to show gross misconduct, fraud, negligenee and unskillfulness on the part of plaintiff in the performance of his duties as agent, and thus defeat his right to compensation. Denew v. Deverell, 3 Camp. 451; Dodge v. Tielson, 12 Pick. 328; Fisher v. Dynes, 62 Ind. 348; Prescott v. White, 18 Ill. App. 322.

The judgment must be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    P. C. Hanford Oil Company et al. v. First National Bank of Chicago.

      Voluntary Assignment—Preferences—■Note and Warrant of Attorney— Special Agreement.

    A promissory note and warrant of attorney given for a bona fide indebtedness before the maker has decided to make a general assignment, creates a valid preference, although given and taken subject to an informal agreement on the part of the maker to notify the holder, if he becomes financially embarrassed, and although he acts upon such agreement after he has decided to make the assignment.
    [Opinion filed December 7, 1887.]
    In error to the Superior Court of Cook County; the Hon. Henry H. Shepard, Judge, presiding.
    This is error to the Superior Court upon a decretal order in a proceeding under the voluntary assignment act. ,
    It appears that the firm of Ferris & Avery, doing business in Chicago as dealers in oils and paints, being in good financial credit, expecting to continue their business and having at that time no intention of making an assignment of their estate for the benefit of their creditors, borrowed, October 13, 1884, of the First National Bank of Chicago, of which they were customers, the sum of $1,500, for which, in the usual course of business, they gave to the bank their promissory note payable in ninety days, with a warrant of attorney in the usual form, as security, authorizing the entry of judgment on said note at any time before or after the maturity thereof; that said note and warrant of attorney were given ahd taken subject to an understanding between said bank and their said customers that the latter should notify the former of the happening of anything which would make it expedient for the bank to act upon its said security.
    It appears that about December 11, 1884, said Ferris & Avery became seriously embarrassed, ascertained that they were insolvent, and after some delay they decided upon making a general assignment, and instructed their attorney to prepare the instrument, which he accordingly proceeded to do. Afterward, December 17,1884, the instrument of assignment being nearly, if not quite completed, an assignee selected, who had promised to serve, Mr. Ferris of said firm, and who had negotiated said loan with Mr. Gage, the financial manager of said bank, went to Mr. Gage in pursuance of said arrangement as to notice of any trouble and informed him that his firm was in trouble; thereupon Gage took the note and warrant of attorney to the bank’s general attorney and directed him to act in the premises. It appears that judgment was immediately entered upon said note by virtue- of said warrant of attorney, in favor of said bank, and execution issued, delivered to the Sheriff, and levied on the stock of goods of Ferris & Avery, before any possession was taken by the assignee, and that the levy was made even before the execution of the assignment was completed and the assignee qualified. An application having been made by the assignee to the County Court for an order upon the Sheriff to turn said goods over to him, subject to the lien of said execution, which was to be first paid, and the bank having consented upon the express condition that its said lien and right should be preserved, on December 18, 1884, the County Court under that application and consent made an order directing the Sheriff to turn over said goods to said assignee, that he sell them and out of said proceeds pay said execution. January 6,1885, the County Court made a further order modifying the former and authorizing parties in interest to contest the validity of such execution lien. January 14, 1885, a petition was filed by P. 0. Hanford Oil Company and others, creditors of said Ferris & Avery, asking the court to declare said execution lien invalid on the ground that the act of creating it was the act of Ferris & Avery after they had decided to make a general assignment, was a part of the transaction of making said assignment, and, therefore, was an unlawful preference. Upon a hearing the County Court sustained the validity of said lien. Upon hearing, on appeal to the Superior Court, that court also held the same way and dismissed the petition as to said bank. Upon that order the petitioners bring error to this court.
    Messrs. Trumbull, Washburne & Robbins, for plaintiffs in error.
    teWhen the debtor has formed a determination to voluntarily dispose of his whole estate, and has entered upon that determination, it is immaterial into how many parts the performance or execution of his determination may be broken-the law will regard all his acts having for their object and effect the disposition of his estate as part of a single transaction; and on the execution of the formal assignment, it will, under the statute, draw to it, and the law will regard as embraced within its provisions all prior acts of the debtor having for their object and purpose the voluntary transfer or disposition of his estate to or for creditors.” Preston v. Spaulding, 120 Ill. 208, 217.
    The principle of that case would seem to be decisive of the case at bar. Here the debtors, “conscious of their hopeless insolvency,” determined to make an assignment, and “ entered upon the execution and performance thereof” by securing from the proposed assignee his consent to act, and having their assignment drawn up. They seek in the assignment, to prefer defendant in error and another creditor. Their attorney prevents this. They then resort to a “ shift or artifice, under the form of law,” to attain that desired object. To the other creditor they give a judgment note authorizing immediate judgment. With the defendant in error this is not necessary A note of this character, not yet due, hut authorizing j udgment at any time, is already held by it. But the note lies dormant. The bank is awaiting its maturity, with no intention of acting at present. Some act of the debtors is necessary to attain, their object—a preference to this bank. One of them goes to the bank and says: “We are in trouble and are going to make an assignment this afternoon.” The attorney of the bank accompanies this debtor to the office of his attorney. There is discussed the question we are now considering. They conclude the statute can be thus evaded. The subsequent acts are then so timed as to attain, it is thought, the original purpose of the debtors—the preference of the defendant in error. All the elements in Preston v. Spaulding are here present, and more—knowledge by the creditor of the contemplated assignment and its collusion with the debtors to evade the statute, while in that case the creditors were “guiltless of any wrong.” See Heineman v. Hart, 55 Mich. 76.
    The assignee’s title as against the execution became perfect by the delivery of the assignment before the execution reached the hands of the Sheriff, although it was not tiled for record nor possession obtained under it until after such delivery to the Sheriff. Even where the rule that retention of possession is per se conclusive evidence of fraud, the assignee has a reasonable time in which to take possession before the lien of an execution can- attach. Seymour v. O’Keefe, 44 Conn. 131; Bump on Fraudulent Conveyances, 135; Reed v. Eames, 19 Ill. 594.
    But while this per se rule prevails in this State, in transactions between persons in their individual capacities, it has never been yet announced as against an assignee, and should not be.
    Mr. Orville Peckham, for defendant in error.
   McAllister, J.

The promissory note and warrant of attorney in question, made October 13, 1884, by Ferris & Avery to the First ¡National Bank of Chicago, were given as security for a Iona fide indebtedness of the makers to the bank, were designed and intended by the parties to give the bank a preference as respected such indebtedness over all the other creditors of Ferris & Avery; and to make such security effectual as creating a preference, the same was given and taken subject to an informal agreement on the part of Ferris & Avery to the effect that in case financial trouble should afterward overtake them, they should aid the bank in rendering said preference effectual.

The giving of such note' and warrant of attorney was nearly two months prior to the time when Ferris & Avery first formed the determination to make a general assignment of all their property for the benefit of their creditors, and while they had full dominion over it.

We are of opinion that, under that state of facts, the acts of Ferris & Avery, or of Mr. Ferris, done after they had formed the purpose of making such general assignment for the purpose and with the view of aiding the bank in rendering its security and intended preference effectual, must be considered as belonging to, and forming a part of, the transaction of creating said preference, and not as forming a part of the transaction of making a general assignment.

The reasoning of Mr. Justice Cole in Sampson v. Arnold, 19 Iowa, 487, et seq., seems to us to be conclusive upon that point. This case is, therefore, distinguishable from that of Preston v. Spaulding, 120 Ill. 208, 217, and not governed by it.

We think the order upon which error in this case is assigned should be affirmed.

Affirmed.


author: Per Curiam.

text:
    John H. Dunham et al., Executors, etc., v. Mathew Laflin.

      Bill for Accounting—Gross-Bill—Trust Funds.

    Upon a bill for an accounting, the adjustment of rights and claims and division of certain trust funds, the proceeds of the interest of the parties in a corporation of which they were the promoters, this court holds that the evidence sustains the decree of the court below,
    [Opinion filed December 14, 1887.]
    Appeal from the Circuit Court of Cook Count3r; the Hon. John C. Bagby, Judge, presiding.
    Mr. E. J. Whitehead, for John H. Dunham, appellant.
    Messrs. McCagg & Culver, for D. R. Holt et al., appellants.
    Mr. John Woodbbidge, for appellee.
   Per Curiam.

This was a bill in chancery brought in the court below some time in 1860, by appellee Laflin against appellants Dunham and Holt, and Solomon A. Smith, who died pending the suit, and his personal representatives were substituted as parties.

It appears that October 5, 1858, the said Laflin, Dunham» Holt and Smith organized a corporation known as the Illinois Stone Coal & Mining Company, with a capital stock of §16,000) divided into 160 shares of §100 each, of which Laflin and Dun. ham each owned forty shares, and Holt and Smith each owned thirty-nine shares, and that the other two shares were owned by other parties; that Laflin was the president and financial manager and Holt the treasurer; that although the business of the corporation was reasonably prosperous, yet diiferences and ill-feelings arose between some of the shareholders above named, so that they resolved to dispose of all their interests in the corporation and divide the proceeds ratably between themselves; that April 18, 1860, Laflin, Dnnliam, Holt and Smith sold all their shares and interest in the corporation for the sum aggregate of §31,000, each one receiving only part payment, the remainder being notes, city script and city lot, situate in Carpenter’s subdivision in West Chicago, and money. By means of that transaction there came into the hands of Laflin funds aggregating as he claimed only 82,339, and into the hands of said Holt the sum of §13,136.13, which they at that time respectively held in trust for the several parties in interest; that the parties being unable to come to a settlement between themselves, by agreement or compromise, Laflin brought his bill, as above stated, for an accounting, adjustment of rights and claims, and division of the funds so held in trust. The defendants to the original filed a cross-bill against Laflin charging him with having undisclosed funds in his hands and with various breaches of duty while acting as such president as aforesaid, and writh reference to the disposition not only of the stock but of the assets of said corporation. Answers and replications were filed and March 24, 1884, the case was referred to a master who, after taking the evidence, made an elaborate report in which he found that Laflin had in his hands of said funds and assets the sum of 81,900 in addition to said sum of $2,339, and held him chargeable therewith, and also held him responsible for preventing a settlement between the parties by insisting upon invalid claims in his favor, which conduct on his part affected the question of his right to be allowed interest or to have interest charged against Holt. Upon exceptions to the masters report made on behalf of Laflin, the chancellor found, in substance, that Laflin did not have in his hands any sum in addition to said sum of $2,339; that the failure of the parties to effect a voluntary settlement was not due to his conduct more than to that of the other parties; that Holt having received more than at the rate of six per centum per annum of interest on the funds in his hands, was justly chargeable with interest thereon at the rate of six per centum per annum, and January 2, 1886, a final decree passed, fixing the amount to be paid to, and by each of the respective parties, upon the basis aforesaid. From that decree Dunham, Holt and the legal representatives of Solomon A. Smith, deceased, prosecute this appeal.

In this court the case is narrowed down to the questions: 1. Whether or not Lafiin, at the time of the transaction above alluded to, had in his hands the sum of §1,900 in addition to said sum of §2,339. 2. The question as to interest as affected by or dependent upon the alleged misconduct of Lafiin in defeating a voluntary settlement between the parties.

We have attentively read the very elaborate statements and arguments of the respective counsel and duly considered them, with all the material evidence. The conclusion to which we have been brought is that, eliminating the incompetent testimony introduced on behalf of the appellants, the evidence fairly warrants the finding of the chancellor, that Lafiin did not have in his hands said sum of §1,900 or any other sum in addition to said §2,339; that the failure in the matter of a voluntary settlement is not shown to have been the result of misconduct on the part of Lafiin in such manner and degree as to affect the question of allowing or charging interest; and that the decree of the chancellor in that respect is substantially correct.

We find it wholly impracticable, on account of pressure of business, to give a more minute statement of the case or evidence, or to enter upon a discussion of the latter.

The points made against the decree not being sustainable upon the record, the decree will be affirmed.

Affirmed.


text:
    The American Fire Insurance Company, v. Brighton Cotton Manufacturing Company.

      Fire Insurance—Finding of Court—Conflict of Evidence—Occupancy of Premises—Stoppage of Machinery for Repairs and Alterations—Practice,.
    1. The finding of the trial Judge, sitting in the place of a jury, must be taken by this court to be conclusive of questions of fact as to which the evidence is conflicting.
    2. In an action on a policy of fire insurance, it is held: That the building in question was at no time within the period covered by the policy vacant or unoccupied; that the temporary stoppage or suspension of the operation of the factory for the purpose of making repairs and alterations was within the privilege granted by the policy; and that the judgment for the plaintiff is supported by the evidence.
    [Opinion filed December 14, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Bollin S. Williamson, Judge, presiding.
    This was an action by appellee against the insurance company, appellant, upon a policy of insurance issued January 4, 1885, whereby the latter agreed to insure the former for the period of one year against damages or loss by fire, in amount not exceeding $3,000, the policy covering the four-story brick cotton mill of the plaintiff, situated at Brighton Park, County of Cook, and State of Illinois, together with the machinery and fixtures therein contained, the declaration setting out the policy in words and figures, and averring the destruction, of the building, machinery and fixtures by a fire occurring July 16, 1885, during the life of said policy. There was a trial, under proper pleadings, by the court without a jury; a finding of the issues for the plaintiff and assessing its damages at $2,692.82; upon which the court, overruling the defendant’s motion for a new trial, gave judgment, and the latter brings the case here by appeal.

      The provisions and conditions of the policy, so far as material to the questions involved, are as follows:
    “ Other insurance permitted without notice, and permission granted to set up and operate machinery, and to make such repairs and alterations as may be necessary to keep the premises in good order during the term of this policy, without prejudice thereto.”
    (1) “ Or if, during the existence of this policy or any renewal thereof, the risk shall be increased by any means whatever, with the knowledge of the assured, and the assured shall neglect to notify the company thereof and have the same endorsed hereon, paying therefor such additional premium as shall be demanded; (2) or shall allow the building to become vacant and unoccupied; * * * (3) or, if it be a manufacturing establishment, running in whole or in part, over or extra time, or running at night, or if it shall cease to be operated, without special agreement endorsed hereon, all insurance by this policy shall thereupon cease.”
    Upon the trial, evidence was given tending to prove that the plaintiff was the-owner of the factory and property in question? was in possession and was operating the same at the time said policy was issued, and so continued until May 1, 1885, when the plaintiff leased the entire premises to W. S. Baker and Thomas Kelly for the term of one year, at a rental expressed in said lease; that said Baker & Kelly immediately entered into possession of said premises under said lease for the purpose of operating said factory; that the fact of said leasing was promptly made known to the defendant, and the latter duly assented thereto, and manifested its assent thereto by an indorsement in writing on the back of said policy; that Baker & Kelly continued to operate said factory with profit to themselves, until about July 8, 1885, when, on account of difficulty just at that time in obtaining a desirable quality of cotton at suitable prices in the usual cotton markets, and for the purpose of making needed repairs as to the interior of said factory and its machinery, they decided upon a temporary suspension of the operation of said factory until about the first of .the next succeeding month of August; that in pursuance of said deter-initiation, they, on said July 8,1885, laid off their engineer, fireman, and most of their employes engaged in operating the spinning and batting machinery, but retained still in their employment a portion of the hands engaged in the dyeing department, and some connected with the packing room, for the purpose of preparing goods for the markets; that all, or nearly all of said employes so laid off were notified at the time that their services were dispensed with for the time being, but that the factory would soon be started again and that they would be notified when their services would be wanted; that arrangements were made on the contemplation of the part of Baker & Kelly for making the necessary repairs of the interior of the building and machinery, and the work went on in the building, under a sufficient number of employes, of preparing for market manufactured goods then on hand, so that such preparation was nearly completed by July 16, 1885, when the fire occurred; that between the time of such suspension and said fire, Baker & Kelly purchased about 100 tons of coal for use in the factory and had it stored therein; that they had there stock and materials for manufacture of the value of some 87,000; that they were active in contracting for the sale of the manufactured goods to be delivered the next succeeding September; that they had a considerable sum of money in the office of the factory at the time of the fire, which had been provided for the payment of the wages of the then employes, who comprised from five to seven persons engaged, and being then all working hours down from the time of said suspension^ including one of the proprietors and watchmen, to the time of such fire.
    Upon the question whether such suspension increased the risk, the evidence was conflicting; but no evidence was offered tending to prove that it was with the knowledge of plaintiff, or any neglect on the part of the latter to notify the defendant thereof.
    The defense relied upon by the defendant at the trial, and in this court, was and is that the policy in suit became void for a violation of each of the several conditions aforesaid.
    Mr. E. H. Gary, for appellant.

      Messrs. Edward W. Russell and D. J. Schuyler, for appellee.
   McAllister, J.

The leasing of the premises in question hy the plaintiff below, to Baker & Kelly, after the policy in suit was issued, was expressly assented to by the defendant. Ko question, therefore, arises from that circumstance affecting the validity of the policy.

But counsel for the defendant contend as the sole ground of error that the stopping by Baker & Kelly of the operation of the factory from the 8th to the 16th day of July, 1885, although done for the purpose and in the manner as shown by the evidence, constituted a breach of each and all of three special conditions of the policy, and that by its express terms such breach rendered the policy void. So that the judgment below was against the law and the evidence, and should for that reason be reversed.

The first of those conditions is to the effect that if the risk should be increased by any means whatever with the knowledge of the assured, and the latter should neglect to notify the company thereof and have the same indorsed upon the policy, paying therefor such additional premium as should be demanded, the policy should be void.

That condition and the other two are to be taken and construed in connection with the following provision of the policy: “Other insurance permitted without notice, and permission granted to set up and operate machinery and to make such repairs and alterations as may be necessary to keep the premises in good order during the term of this policy without prejudice thereto.”

The exercise of the privilege thus given involved the necessity, in a greater or less degree, depending upon circumstances, of a temporary stoppage of the operation of the factory. Such stoppage was therefore authorized by the policy, which, it in,terms provided, should be without prejudice thereto. ETow the evidence tended to show that the stopping the operation of the factory was for the purpose of making needed repairs and alterations, which made such stoppage necessary. The evidence upon the question, whether what was done in that behalf did in fact increase the risk, was conflicting, but the evidence tending to show the purpose of the suspension to have been within the intention of the clause last above quoted, was without any substantial conflict. Hence the finding of the trial Judge, sitting in the place of a jury, must be taken by this court to be conclusive upon those questions of fact. That is a complete answer to the position of counsel as to the alleged forfeiture o'f the policy, under the first special condition.

The second is, that if the assured should allow the building covered by the insurance to become vacant and unoccupied, the policy should thereupon become void.

The short answer to the contention of counsel for defendant, under that head, is, that their position is taken against the very truth of the uncontroverted testimony. The building was not at any time during the period in question vacant or unoccupied. This matter is so plain and clear upon the evidence as not to justify discussion, when we have so much in other cases that demands discussion and exhaustion of time and strength.

The third condition is in effect that if the property insured be a manufacturing establishment and it shall cease to be operated without special agreement indorsed on the policy, all insurance by this policy shall therefore cease.

The answer to the position of defendant’s counsel that the stoppage of the operation of the factory, as shown by the evidence, constituted a breach of that condition and worked a forfeiture of the policy, seems to us to be readily at hand without going into any analysis of the numerous cases cited by them. The facts of the case must govern its decision, when they distinguish it from the cases decided by other courts. The law arises upon the facts.

It is indisputable that the evidence tends to show that the suspension of the operation of the machinery of the factory was designed to be only temporary; that one, if not the principal purpose of it, was to repair machinery and make alterations. The trial judge having found for the plaintiff on all the issues, we must, therefore, presume that he found those facts in accordance with the tendency of the evidence to prove them. So that here we must take them as the facts. That being so, what is there left of counsel’s position that such stoppage or suspension constituted a breach of the condition of the policy under consideration? The policy gave express permission to make such repairs and alterations without ¡prejudice to any rights under such policy. A temporary stoppage or suspension of the operation of the machinery, and while making such repairs and alterations, was such a natural and necessary incident of the exercise of the privilege granted, that it must have been within the contemplation of the parties at the time of entering into the contract. Such stoppage or suspension was therefore authorized by the policy to be effected without prejudice to any rights of the assured thereunder.

We think the judgment in this case was supported by the evidence that there was no prejudicial error of law. So that an affirmance is the proper result.

Judgment affirmed.


text:
    William E. Mason v. Bernard Mandl.

      Practice in Justice Courts—Appeal—Affidavit—Affidavit of Claim—Time of Filing—Defau It.

    Sec. 34, Chap. 79, R. S., providing for the filing of an affidavit of plaintiff’s claim, does not authorize the Circuit Court to permit the filing of such an affidavit after an appeal taken from a Justice so as to confer upon the plaintiff the right to a default against the defendant and dismissal of his appeal for the mere want of an affidavit of merits.
    [Opinion filed December 14, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon-J.ohn C. Bogers, Judge, presiding.
    Messrs. Mason & Ennis, for appellant.

      Messrs. Blum & Blum, for appellee.
   McAllister, J.

This was assumpsit, brought by appellee Mandl in Justice’s court against appellant Mason and another defendant not served. Mason took an appeal to the Circuit Court, which was perfected November 20, 1886. The plaintiff, without notice to defendant, applied for and obtained, December 8, 1886, leave of court to file an affidavit of claim in the cause, which being filed, the court entered a rule upon defendant to file an affidavit of merits within five days after notice of such rule, and such notice was served on defendant December 10, 1886. Whereupon the defendant, December 15th, made a motion to vacate said rule, which was overruled and exception taken. But the court extended the time in which to file such affidavit of merits until the 20th of the same month.

December 21,1886, on motion of plaintiff’s counsel the court dismissed defendant's appeal for want of an affidavit of merits with procedendo, and judgment for damages in the sum of §6 was rendered against him, which the court refused to set aside on defendant’s motion made in apt time; hence this appeal.

The record excludes the idea of the filing by the plaintiff of any affidavit in the Justice’s court showing the nature of his claim, or of any purport whatever. The question therefore arises, whether it was competent for the Circuit Court on appeal to so authorize the filing of such affidavit there, as a first and original affidavit, as to confer upon the plaintiff the right to a default against the defendant and dismissal of his appeal for the mere want of an affidavit of merits by defendant.

Section 34 of the Justice’s Act, 2 Starr & C. Ill. Stat, p. 1444, after declaring the plaintiff’s right to a default in Justice’s court against the defendant for want of appearance at the time of trial, contains this proviso:

“ Provided, that if the plaintiff in any suit upon a contract, expressed or implied, for the payment of money, shall file with the Justice, at the time of commencing such suit, an affidavit showing the nature of his demand and the amount due him frogn the defendant, after allowing to the defendant all his just deductions, credits and set-offs, if any, he shall be entitled to judgment in case of default, but the Justice may require further evidence. Provided further, that in cases pf appeal from the judgment of the Justice of the Peace as aforesaid? such affidavit shall have the same force and effect in the Appellate Court as if such suit had been commenced in such Appellate Court.”

The expression “ such affidavit,” used in the second proviso, can have no reference to any other than the affidavit filed “ at the time of commencing such suit,” mentioned in the former of said provisos. And to give to the language employed a construction authorizing the filing of an original affidavit of claim in the Appellate Court with the effect which the learned Judge of the Circuit Court awarded to it, would be not only against the clear and unambiguous wording of the statute, but against the manifest intention of its framers.

The statute above quoted shows that the attention of the Legislature was called to the subject. And if it had been thought fit to authorize the filing of an affidavit of claim for the first time in the Appellate Court it would have been easy' to have so enacted; and not having done so, the inference is that it was not deemed proper to extend the practice that far. Booth v. Storrs, 54 Ill. 472, 480, and cases cited.

For the error in taking the defendant’s default for want of affidavit of merits, and refusing to set the same aside on defendant’s motion, the judgment will be reversed ánd the cause remanded.

Judgment reversed.


author: Bailey, J.

text:
    In re William S. Geohegan et al.

      Voluntary Assignments—Judgments by Confession—Whether a Valid Preference—When Such Preference is Given.

    1. Until lie has made up his mind to make an assignment, a debtor retains the dominion over his property and may sell, mortgage or pledge it, or create a lien upon it by confessing a judgment in favor of a bona fide creditor.
    2. A preference is given to a creditor, so far as the debtor is concerned, not by entry of the judgment but by the execution of the warrant of attorney. If that instrument is given at a time when the debtor may lawfully prefer a creditor, the preference is valid.
    3. Under the statute of this State the creditor will be protected if he in fact succeeds in perfecting his lien before the assignment becomes operative. Knowledge of the insolvency of his debtor, or of his intention to make an assignment, or of his being actually engaged in the execution of such instrument, can not deprive him of his preference, if he in fact succeeds in obtaining one.
    4. Mere non-action on the part of the debtor until the creditor has perfected his lien, does not make the procuring of such lien his act. The statute imposes upon him no duty of diligence to defeat the priority of creditors who hold valid warrants of attorney.
    5. Upon a petition to have certain executions against the property of an insolvent debtor vacated and to have said executions and the judgments on which they were issued declared to be a part of the general assignment, it is held: That there is no evidence of such active co-operation on the part of the debtors in the entry of the judgments by confession as to make them their acts; that the liens are therefore valid; and that they do not constitute an illegal preference within the meaning of the statute.
    [Opinion filed December 14, 1887.]
    In error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Abbott & Baker, for plaintiff in error.
    Mr. Frank P. Leffingwell, for defendants in error.
    The entry of the judgments by confession and the delivery of tlio executions to the Sheriff, were a fraud upon the assign' ment law. Hahn v. Salmon, 20 Fed. Rep. 801, and cases cited; Preston v. Spaulding, 10 N. E. Rep. 911; Sartwell v. North, 10 N. E. Rep. 824; Wilson v. City Bank, 17 Wall. 473, 487; Buchanan v. Smith, 16 Wall. 307.
    The entry of the judgments, levying of the executions and making of the deed of assignment must be construed to be part and parcel of the same transaction. Preston v. Spaulding, 10 N. E. Rep. 903, and cases cited; Berry v. Cutts, 42 Me. 445; Perry v. Holden, 22 Pick. 269, 275; Holt v. Bancroft, 30 Ala. 193, 200; Livermore v. McNair, 34 N. J. Eq. 478, 482.
    The rule in construing a remedial statute, though it may be in derogation of the common law, is, that everything is to be done in advancement of the remedy that can be done consistently with any fair construction that can be put upon it. C., B. & Q. R. R. Co. v. Dunn, 52 Ill. 260.
    The law will not permit that to be done indirectly which can not be done directly. That which violates the policy of a statute is as much condemned as if it violated the latter. The law no more tolerates an evasion of a statute by artifice than a palpable violation of it. Holt v. Bancroft, 30 Ala. 193, 300. See also, Livermore v. McNair, 34 N. J. Eq. 478, 482; U. S. v. King, Wall. C. Ct. 13; Downing v. Kintzwig, 2 Serg. & R. 335; Oates v. First Nat. Bk., 100 U. S. 239.
   Bailey, J.

This was a petition in a proceeding- in the County Court under the statute in relation to voluntary assignments, praying that the liens of certain executions against the property of the insolvent debtors be vacated, and that said executions and the judgments upon which the same were issued be declared to be a part of the general assignment for the benefit of creditors. Said petition was denied by the County Court, but upon appeal to the Circuit Court a hearing was had and an order entered against the prayer of the petition, and the record comes here by writ of error.

On the 1st day of December, 1885,.the firm of W. S. Geohegan & Company, consisting of William S. Geohegan, Harry Geollegan and Thomas Fitch, then doing business as merchants in Chicago, executed three judgment notes maturing thirty days after date, one for §200 payable to the order of Joseph H. Fitch, one for §703.89, payable to the order of Sarah A. Geohegan, and one for §2,137.30, payable to the order of Eliza J. Geohegan, the warrant of attorney accompanying each note authorizing the entry of judgment by confession at any time after said date for the amount of the note, attorney’s fees and costs. As to the lonafides of the indebtedness for which said notes were given, no question is raised, and the evidence shows beyond controversy that, at the time said notes were given, said firm, though somewhat embarrassed, had not determined to make an assignment, and were not in fact contemplating any such step.

It appears that the creditors to whom said notes were given were all relatives of the members of said firm; Sarah A. Geohegan being the mother of William S. and Harry Geohegan, Eliza J. Geohegan the widow of their deceased brother, and Joseph II. Fitch the husband of their sister and a brother of Thomas G. Fitch, the third member of the firm. Shortly after the execution of said notes, Sarah A. Geohegan placed her note in the hands of Joseph H. Fitch, who was an attorney at law, for collection when due, and Eliza J. Geohegan also placed her note in his hands for collection shortly after its maturity. Joseph H. Fitch had several interviews with the members of the firm in relation to the payment of the notes and was put off until the 5th or 6th of January, 1886, when he told Harry Geohegan that unless the notes were paid, he would cause judgments to be entered thereon. Harry Geohegan, finding Fitch determined to proceed at once to enforce the collection of the notes, had a long talk with him in which he disclosed fully the situation and financial condition of the firm, from which it appeared that the firm was insolvent and would be unable to continue longer in business, and he thereupon asked Fitch, who, as it seems, had been to some extent, the legal adviser of the firm, to advise him as to what, under the circumstances, would be the best course for the firm to pursue. Fitch replied, that in his opinion a general assignment for the benefit of creditors was the only course open to them, but at the same time said that they should employ another lawyer, as he, Fitcli, could not properly represent both them and the creditors at the same time. This, as it seems, was the first time that the subject of an assignment was suggested by any of the parties. Geohegan, on leaving, said that he would consult with his partners, but expressed the opinion that the firm would not make an assignment, as some of the partners had a strong prejudice against the mode of procedure. The firm, however, consulted another attorney, and as the result of such consultation, they determined to make a general assignment, and Harry Geohegan procured certain blanks to be used in the preparation of such a document. On the evening of January 7th, Fitch drew up all the papers necessary for the entry of judgments on the three notes, leaving blanks only for the name of the attorney who was to sign the cognovits. Harry Geohegan and Thomas G. Fitch were living in the same house with Joseph •H. Fitch, and on the same evening they went to his room taking said blanks with them, and told him of their determination to make an assignment; he also at the same time telling them that he should enter up judgments on the notes the first thing the next morning, and that everything was in such shape that he would get his executions before they could possibly make their assignment. At this interview Harry Geohegan produced the blanks which he had procured, and Joseph H. Fitch, at his request, filled up in part both the assignment and the schedules. Fitch testifies that in doing this he acted not as the attorney of the firm, but as a mere amanuensis for the partners, and for the reason that he was the best penman present.

The next morning Harry Geohegan, Thomas G. and Joseph H. Fitch and Sarah A. and Eliza J. Geohegan met, in pursuance of a previous arrangement, at the office of Abbot & Johnson, the attorneys for said firm, and there the assignment drawn up the previous evening, and also- the declarations and cognovits prepared by Joseph H. Fitch were produced. Just before 10 o’clock said Fitch, who at the time was acting as minute clerk in the County Court, and for that reason could not attend to the entry of the judgments in person, handed the declarations and cognovit to Mr. Johnson, one of the attorneys acting for said firm in the matter of the assignment, and asked him to go to the Superior Court as soon as it should be opened, and cause the judgments to be entered and executions thereon to be issued and delivered to the Sheriff. In accordance with this request said Johnson went to the court house, caused the judgments to be entered in the Superior Court, took out executions and placed them in the Sheriff’s hands. At the time he left his office the assignment appears to have been completed with the exception of the signatures of the members of the firm, and at that time William S. Geohegan, one of the partners, had not arrived. The evidence also tends to show that the execution of the assignment was delayed by an attempt by the firm to arrange with a certain creditor, in whose hands they had placed collaterals for the payment of the indebtedness, so as to get the collaterals back into their own hands. The executions came into the Sheriff’s hands at 10:25, 10:28 and 10:27 a. m., and the assignment was executed and recorded at 11 o’clock a. m., the same day. There is evidence tending to show that it was the expectation of all the parties that the execution should take the precedence of the assignment, and that it was the intention of the members of said firm to record the assignment as soon as possible, after the entry of the judgments, so as to prevent the levy of intervening attachments.

The question arising upon the foregoing facts is, whether said judgments and executions and the lien thereby acquired are to be deemed in law a part of the assignment, or are to be regarded as a separate transaction wholly independent of the assignment, and in no way affected thereby. If they are a part of the assignment, they constitute an unlawful preference within the meaning of Sec. 13 of the statute in relation to voluntary assignments for the benefit of creditors, and said liens are consequently void.

The law is now settled in this State that, after a debtor has determined to make an assignment for the benefit of his creditors, all conveyances, transfers or other dispositions of his property or a-sets, made in view of his contemplated general assignment, whereby any preference is given, will be held to be a part of the assignment, and therefore void under .the 13th section of the statute in relation to voluntary assignments for the benefit of creditors, the same as though incorporated into the deed of assignment itself. Preston v. Spaulding, 120 Ill. 208. But while this is so, the rule is also settled that the debtor, until he has made up his mind to make an assignment, retains the dominion over his property, and may sell, mortgage or pledge it, or create a lien upon it by operation of law, as by confessing a judgment in favor of a bona fide creditor.

Under the foregoing rule, there can be no doubt of the validity of the notes and warrants of attorney by virtue of which the judgments in question were confessed. They were given to secure bona fide debts at a time when the debtors were not contemplating an assignment. A warrant of attorney is a well known and well recognized security, and the warrants of attorney in question, as soon as they were executed, became, in the hands of the payees of said notes, securities for the debts for which the notes were given, of which said payees were entitled to avail themselves, and which the debtors had no power, by any act of theirs, to set aside or impair. With the entry of a judgment by virtue of a warrant of attorney, the debtor has noiliing whatever to do. It is the act of the creditor alone. He and not the debtor has the right to determine when the judgment shall be entered up, and to set on foot the proceedings necessary to have it entered. Such entry is as to the debtor a proceeding in invitum, and even if he gives to it the express consent, it becomes his act no more than before.

In Clark v. Iselin, 21 Wall. 360, where the question was whether the entry of a judgment by virtue of a warrant of attorney, given before the insolvency of the debtor, constituted an illegal preference within the prohibition of the 35th section, of the Bankrupt Act, the court say: “ How, in a case where a creditor, holding a confession of judgment perfectly lawful when it was given, causes the judgment to be entered of record, how can it be said the debtor procures the entry at the time it is made ? It is true the judgment is entered in virtue of his authority, an authority given when the confession was signed. That may have been years before, or, if not, it may have been when the debtor was perfectly solvent. But no consent is given when the entry is made, where the confession becomes an actual judgment, and when the preference, if it be a preference, is obtained. The debtor has nothing to do with the entry. As to that he is entirely passive. Ordinarily he knows nothing of it, and he could not prevent it if he would. It is impossible, therefore, to maintain that such a judgment is obtained by him when his confession is placed on record. Such an assertion, if made, must rest on a mere fiction.”

The 35th section of the Bankrupt Act provided, in substance, that if any person, being insolvent or in contemplation of insolvency, within four months before the filing of a petition by or against him, with a view to give a preference to any creditor, procured or suffered any part of his property to be attached or seized on execution, such creditor having reasonable cause to believe such person to be insolvent, and that such levy was made,in fraud of said act, such levy should be void. In Clark v. Iselin, supra, a creditor obtained from his debtor while solvent a paper known as a “confession of judgment,” equivalent to a warrant of attorney, and kept it in his possession until his debtor became insolvent, and then, with knowledge of such insolvency, entered judgment thereon, and caused the property of his debtor to be seized on execution, and it was held that the levy was valid, and was not a procurement by the debtor of a seizure of his property with a view on his part to give a preference to his creditor, within the meaning of the Bankrupt Act. This conclusion was reached upon the theory that the preference was given, so far as the debtor was concerned, not by the entry of the judgment, but by the execution of the warrant of attorney, and as that instrument was executed at a time when the debtor might lawfully prefer a creditor, the preference was not 'illegal.

It should be observed that our statute in relation to voluntary assignments is much less sweeping in its provisions than the Bankrupt Act. Under our statute a debtor, though contemplating insolvency or actually insolvent, may lawfully prefer a creditor, such preference being forbidden only when it is made at such a time and under such circumstances as to become, in legal contemplation, a part of the assignment itself. In other words, it is only such preferences as are made after the debtor has determined to execute a general assignment of his property for the benefit of his creditors, that are illegal and void. Unlike the Bankrupt Act also, our statute makes no attempt to regulate the conduct of the creditor. See Preston v. Spaulding, supra. His acts, whatever they may be, done with a view of securing a preference, and his knowledge of the insolvency of his debtor, or of his intention to make an assignment, or of his being actually engaged in the execution of such instrument, can not deprive him of his preference, if he in fact succeeds in obtaining one. He may choose his own time for entering up his judgment, and if he succeeds in perfecting his lien before the assignment becomes operative, his legal priority is established.

But it is said that the priority of the creditors’ lien in this case was brought about, in part at least, by the collusion or connivance of the debtors. Such collusion or connivance, so far as it possesses any legal significance, consisted in a willingness or it may be a desire on the part of the debtors that the creditors’ lien should precede the assignment, and the timing of the execution of the assignment so as to make it subsequent to such liens. If. it be admitted that the debtors purposely delayed their assignment until the creditors had entered up their judgments and taken out executions, what are the legal consequences? The statute imposed upon the debtors no duty of diligence to defeat the priority of creditors who had valid warrants of attorney. They were under no obligation to enter upon a race of diligence with such creditors, but were only restrained from giving a preference by any affirmative act of their own. Mere non-action on their part until the executions should become liens, did not make the procuring of the liens their act. It was the act of the creditors, and was a lawful exercise of the power given to them at the time the warrants of attorney were executed, and long before any assignment was contemplated. We do not say that there may not he such active co-operation on the part of a debtor in the entry of a judgment by confession as to make such judgment in legal contemplation his act, but such co-operation must involve something more than mere delay, or even notice to the creditor that an assignment is contemplated. In this case wo find no evidence of such co-operation, and we therefore hold that the liens of the executions are valid, and that they do not constitute an illegal preference within the ' meaning of the statute. We are of the opinion that the Circuit Court erred in. coming to the opposite conclusion, and the judgment will therefore be reversed and the cause remanded, with instructions to the Circuit Court to affirm the judgment of the County Court.

Judgment reversed.


author: Moran, P. J.

text:
    Frank J. Bowman v. Ida M. Bowman.

      Divorce—Alimony Pendente Lite—Common Lato Marriage—Sufficiency of Proof—Jurisdiction—Domicile.

    1. A common law marriage is a marriage “ contracted and solemnized ’ ’ within the meaning of our statute authorizing divorce.
    2. To constitute a marriage per verba de presentí no particular words are necessary. It is sufficient if what is done and said evidences a present assumption by the parties of the marriage status.

    3. Where, in an application for alimony pendente lite, the fact of mar. riage is practically the only point in issue, the proof required should only extend to probable cause, or a fair probability that the petitioner will maintain her allegation.
    4. A married woman may be an actual resident of this State though she has no domicile here, and if while she is such actual residen1 2345, the offense which supplies the ground of divorce is committed, thereafter her actual residence becomes her separate and legal domicile.
    5. In the case presented, it is held: That the evidence of a common law marriage furnishes proof sufficient to authorize the court to grant alimony and suit money pendente lite; and that the court below had jurisdict ion under the statute.

      [Opinion filed December 14, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tulby, Judge, presiding.
    Mr. L. M. Shreve, for appellant.
    Courts of equity will rarely, if ever, allow either alimony or solicitor’s fees where the marriage is squarely controverted, and never until a prima facie case is made, establishing the right and overcoming the husband’s allegation of facts impairing the validity of the marriage.
    The indiscriminate allowance of alimony would enable the adventuress and blackmailer to prosecute her suit by the same agency which the chancellor may give an injured and innocent wife, when it is just and equitable. Collins v. Collins, 71 N. Y. 269, 275; York v. York, 34 Iowa, 530; Lovett v. Lovett, 11 Ala. 769, 777.
    Whether alimony shall be granted is a matter of law; how much is a matter of discretion. Wetsell v. Wetsell, 8 B. Mon. 50; Call v. Call, 45 Me. 407.
    And this discretion is a judicial, not an arbitrary one. Foote v. Foote, 22 Ill. 425; Foss v. Foss, 100 Ill. 576, 580; Deenis v. Deenis, 79 Ill. 74; Blake v. Blake, 80 Ill. 523.
    If it appears that the parties are not married, or that the complainant is acting in bad faith, alimony pendente lite will not be granted. Collins v. Collins, 71 N. Y. 269, 275.
    Ho presumption of marriage can be indulged by the court, for it is admitted that illicit cohabitation existed for years between the parties, and every such presumption is overcome by prior illicit cohabitation, which is presumed to be continued. Hebblethwaite v. Hepworth, 98 Ill. 126.
    A promise to many when promisor gets a divorce from his wife, is void. Naice v. Brown, 39 N. J. 133; Padock v. Robinson, 34 N. Y. 643. Ho court can grant' a divorce except for causes provided by statute. Cook v.Cook, 56 Wis. 600; U. S. v. Hayes, 20 Fed. Rep. 710.
    When jurisdiction has been so given by the law making power for certain specified causes, as in the State of Illinois,.it excludes all other causes for divorce.

      Our Supreme Court, conceding that such a marriage may be valid for certain purposes, has been reluctant in extending the aegis of the law to marriages usually known as common law marriages, even in cases of inheritance, dower and legitimacy. Hebblethwaite v. Hepworth, 98 Ill. 126.
    The domicile of the husband is the domicile of the wife. His residence is hers, and from the 27th day of June, 1886, to the 5tli of September, under the averment in the bill she was in legal contemplation a resident-where her husband resided, at St. Louis, Missouri. Ashbaugh v. Ashbaugh, 17 Ill. 476; Davis v. Davis, 30 Ill. 180; Kennedy v. Kennedy, 87 Ill. 250.
    Messrs. Case & Hogan, for apapellee.
    The law favors a presumption of marriage arising from evidence of an agreement between the parties. The extent of the rule is that where a cohabitation is illicit in its origin, a mere continuance of the cohabitation, under the same circumstances, a simple prolongation of the unlawfulness will not change its character. And yet the court will seize hold of the slightest circumstances indicating a change in their relations, and draw inferences favorable to matrimony. Fenton v. Reed, 4 Johns. 52; Senser v. Baur, 1 Penny. 452; Rose v. Clark, 8 Paige, 574; see especially, Yates v. Houston, 3 Texas, 450. See, also, Donnelly v. Donnelly, 8 B. Mon. 113.
    Where the parties have manifested a desire to live in a matrimonial union, which the parties in this cause did upon their removal to Chicago, and not in a state of concubinage, and during their cohabitation there has been a time when they might lawfully have married, a jury will be justified in finding a marriage from the mere fact of continued cohabitation apparently matrimonial, although it was for some reason meretricious in the inception. The following authorities fully sustain this proposition: Fenton v. Reed, 4 Johns. 52; Van Buskirk v. Claw, 18 Johns. 345; Rose v. Clark, 8 Paige, 574; Caujolle v. Ferrie, 23 N. Y. 90; Betsinger v. Chapman, 88 N. Y. 487 to 499; Hynes v. McDermott, 91 N. Y. 451; Holabird v. Atlantic Ins. Co., 12 Am. L. R. (N. S.), 566; North v. North, 1 Barb. Ch. 241; Starr v. Peck, 1 Hill, 270; Donnelly v. Donnelly, 8 B. Mon. 113; Blanchard v. Lambert, 43 Iowa, 228; State v. Worthingham, 23 Minn. 528; Dickerson v. Brown, 49 Miss. 357; Floyd v. Calvert, 53 Miss. 37-46; Jones v. Jones, 45 Md. 155; Yates v. Houston, 3 Texas, 433-450; Campbell v. Campbell, 1 Law Rep. (H. L.) Secs. 182, 201, 204, 212, 215; Breadalbane’s Case, L.R., 1.Scotch Divorce Appeals, 182; De Thoren v. Attorney General, L. R., 1 App. Cas. 686; In re Taylor, 9 Paige, 611.
    We think the following rules may be deduced from the cases cited:
    . 1st. That an .illicit connection is presumed to continue until there is evidence to the contrary.
    2d. That where the' parties have manifested a desire to form a matrimonial union, the presumption will be rebutted so as to make the question one of fact, by the slightest circumstance, and that a mere continuance of the cohabitation without any apparent change after the parties have the right to contract a valid marriage, will suffice to justify submission of the question of marriage to a jury, and the court should, under such circumstances, submit the question to the jury.
    ■3d. That where there is any evidence even of the slightest character to rebut this inference of continuance of an illicit union, the question is one of fact.
    The cases are unanimous in support of the true doctrine that where the evidence discloses the fact that the parties desired a matrimonial instead of a meretricious connection the slightest circumstance should be held to afford sufficient evidence upon which to predicate a fin ling of marriage.
    Where a presumption of marriage has once arisen from a cohabitation apparently matrimonial, it.can be overthrown only by the most cogent proof. Hynes v. McDermott, 91 N. Y. 451; Morris v. Davies, 5 Cl. & Fin. 163; Piers v. Piers, 2 H. L. Cas. 331.
    The defendant in error in this case bases her right for divorce not solely upon cohabitation and repute, but on a contract of marriage entered into between the parties hereto, after the divorce of the plaintiff in error, followed by a cohabitation and assumption of the marriage status. The law on that point is clearly stated by the Supreme Court in the late case of Cartwright v. McGown, 10 West. Rep. 592.
    In the case at bar it was not necessary that there should have been a marriage .ceremony; all that was required, and this was. done, was a mutual agreement between themselves to live permanently in matrimonial relations. Consent and not ceremony made the marriage. The contract and not the evidence of it constitutes the marriage.
    At common law, as held in this country, and until recently it would seem as generally understood in England, persons of suitable age might, by words of present consent, contract a valid marriage without the presence and intervention of a minister, and without any particular form of solemnization. A statute may, of course, take away this common law right, but this is not to be presumed. The right is not conferred by statute, but exists independent of it, and therefore it is held that the rule does not apply, that when a statute directs a thing to be done in a particular way, it is void if done in any other way. The forms required are directory and not prohibitory, and such statutes have always been construed as not rendering void marriages entered into without the observance of those forms. Port v. Port, 70 Ill. 484; Hebblethwaite v. Hepworth, 98 Ill. 129.
    This is an appeal from the interlocutory decree only. We submit that a prima, facie case was made out in the Circuit Court, and the court, as it had full power to do with or without statutory authority, granted alimony and solicitor’s fees. McGee v. McGee, 10 Ga. 478; Dow v. Eyster, 79 Ill. 254; Griffin v. Griffin, 47 N. Y. 134; Perry v. Perry, 2 Paige, 504; Chairs v. Chairs, 10 Fla. 308.
    The complainant at the time she filed the bill was an actúa resident of the City of Chicago and County of Cook, and had been for more than one whole year past a resident of the State of Illinois. She became so at the request of the plaintiff in error5 and he never solicited her to come to St. Louis, Mo., and live with him, but stated that he would come to Chicago and live with her. The adultery complained of in the bill was committed outside of the State of Iliinois. In such a case the court will have jurisdiction even though the residence in this State has not been for one whole year. Way v. Way, 64 Ill. 406. She was actually a resident of this State at the time the adulteries were committed by the plaintiff in error. It then confessedly follows that her then actual place of residence became her legal and separate domicile. Hopkins v. Hopkins, 15 N. H. 474; Dutcher v. Dutcher, 39 Wis. 651; Way v. Way, supra; Pate v. Pate, 6 Mo. Appeals, 49.
   Moran, P. J.

This is an appeal from an order allowing suit money and alimony pendente lite to appellee in her suit to obtain a divorce from appellant on the ground of adultery.

She alleged in her bill that she was lawfully married to appellant on June 27, 1886, and it appears from the statements of her affidavits, filed in support of her motion for alimony, that the marriage claimed by her to have been entered into, was what is known as a common law marriage. Appellant’s objections to the decree are:

1st. That a common law marriage is not such a marriage as the Legislature of this State has authorized the courts to dissolve by divorce, such a marriage not being one “contracted and solemnized,” within the meaning of the statute on divorce.

2d. That in this case there is not evidence sufficient to prove a marriage in fact, and that therefore no order for alimony should have been made.

3d. That if there was a marriage in fact, then complainant on her marriage lost her domicile in this State, and took that of her husband, who is shown to be a resident and citizen of Missouri, and therefore the court in this State has no jurisdiction.

We will consider these objections in their order:

1st. While the statute of this State on marriage does provide that marriages maybe celebrated by certain ministers and officers, and requires a license, and imposes a penalty upon any such minister or officer as shall celebrate a marriage without a license therefor having first been obtained, yet the forms required are directory and not prohibitory, and such statutes have always been construed as not rendering void marriages entered into without the observance of those forms.

In Port v. Port, 70 Ill. 484, it is said by the Supreme Court: “We are inclined to the opinion, supported as it is by the statements of many of the most eminent text writers, as well as by the decisions of courts of the highest respectability, that, inasmuch as our statute docs not prohibit or declare void a marriage not solemnized in accordance with its provisions, a marriage without observing the statutery regulations, if made according to the common law, will still he a valid marriage, and that, by the common lawT, if the contract is m&Aeper verba de presentí, it is sufficient evidence of a marriage.” Also Hebblethwaite v. Hepworth, 98 Ill. 126.

If the marriage is valid it is indissoluble by the parties to it. They are by such marriage inseparable—man and wife. If, therefore, the contention of appellant that the courts of this State have jurisdiction to divorce parties only whose marriage was “ contracted and solemnized,” in accordance with the forms prescribed by the statute, that is, ceremonial marriages, then it folloxvs that we may have a class of persons in this State xvho are validly married, whose children are legitimate, xvho legally enjoy all the rights and are bound by all the duties and obligations of the marriage contract, and who have no right to seek redress in the form of a dix'orce for violation of the contract; and this is a community where, in laxv, marriage is regarded as a civil contract or civil status merely, xvhere it has, in view of the State, no sacramental character, and where it needs no ecclesiastical sanction.

We are of opinion to so hold xvould be against public policy, as it has been established by the legislation and common laxv of this State.

Even in England, where to constitute a valid and complete marriage it was necessary that it be made in the presence and xvith the intervention of a minister in orders, it xvas held that persons xvho had entered into a contract of marriage which amounted to no more than a marriage per verba de presentí, was valid to the extent that entitled a party to it to come to the consistory court for divorce. The Judge there said that he would hold in that “and all similar cases, that xvhen there has been a fact of consent betxveen txvo parties to become man and wife, such is sufficient marriage to enable me to pronounce when necessary, a decree of separation.” Catterall v. Catterali, 1 Rob. 580.

In Harman v. Harman, 16 Ill. 85, though the exact point urged here was not under consideration, it is said in the opinion : “ I apprehend a mere de facto or cohabitation marriage may be dissolved by decree.”

It is suggested that this is mere dictum, as the marriage pleaded in that case, and admitted by the default, would be intended to be a marriage “contracted and solemnized” as required by law. But, if a dictum, the statement is in accord with the almost universal course of the courts in this country, for no case is to be found where the relief asked wras refused on the ground that the marriage was a common law marriage.

We think the word “solemnized,” as used in our statute, is not to be construed as meaning only a ceremonial solemnization, whether religious or official, but. that for the purpose of divorce a marriage may be self-solemnized by the parties to it, and a contract between them which constitutes them man and wife is a marriage “ contracted and solemnized” within the moaning of our statute authorizing divorce.

2d. Is a marriage in fact proved against the parties? As the case is presented, the marriage is the only fact in dispute between the parties. Appellee alleges in her bill that she was married to the appellant on the 27th of June. The hill is unanswered, and while there is no default entered against appellant, there is no issue made by the pleadings as to the alleged marriage.

In her affidavit in support of the motion for alimony pendente lite and suit money, appellee swears “that on the 27th day of June, 1886, the said defendant informed this affiant, the said Mary V. Bowman [appellant’s former wife] had obtained a divorce from the said defendant in one of the courts of the City of St. Louis, and that he was then a free man and would marry this affiant. This affiant then requested the said defendant to marry this affiant, when said defendant said that lie did not believe in marriage .ceremonies, and that he would make her his wife in the presence of a witness, which he accordingly did on the said 27th day of June, A. D. 1886.”

In another affidavit-, subsequently made and filed in the same matter, she swears “that the said defendant did, on the 27th day of June, A. D. 1886, marry this affiant, and said defendant stated on that day to this affiant that he then and there would, as he then did, fulfil the numerous and repeated promises which he had been constantly making this affiant for months and years prior to his divorce. That on the last said day the said defendant stated to. this affiant that he was the father of her children and would legitimize them, as he then did by marrying this affiant. Defendant also stated, on the last said date, to this affiant, that he was free then to make the children legally his, and for that reason, as well as his very great love for this affiant, did make this affiant then and there his wife.”

These statements of appellee are controverted by appellant in two affidavits filed by him in said case. In his first affidavit he swears “ that he was not, on the 27th day of June, 1886, in the City of Chicago, lawfully married to the plaintiff, and says that neither at Chicago on the date last mentioned, or at any other time or place, was the plaintiff in the above named cause married to the said defendant; and affiant further states and says, that he did not live and cohabit with the plaintiff in the above named cause from the 27th day of September, 1886, as husband of the plaintiff, and affiant says that each and every of the plaintiff’s allegations of and concerning a marriage'witli the defendant as in her petition in this cause set forth and stated are wholly untrue.”

In the second affidavit he says, “ that he did not at 202 Webster Avenue, Chicago, enter into a contract of marriage to take effect at that time with the person who calls herself Ida II. Bowman, as in her affidavit stated, and that it is not true that he made her his wife in the presence of a witness on the 27tli day of June last, or at any other time, and the statement so made is false and untrue.”

It will be observed that appellee says in her affidavits that appellant made certain statements to her on the 27th day of June. That he stated to her that he was then free; that he would fulfil the repeated promises which he had been making prior to his divorce; that on said last named date he “stated to this affiant that he was free then to make the children legally his, and for that reason, as well as liis great love for this affiant, did make her then and there his wife.” Appellant’s affidavits do not contain an unequivocal denial of what appellee states. He fkst says he was not lawfully married to her at Chicago on June 27th or at any other time' or place, and that each and every of her allegations, concerning a marriage, in her petition set forth and stated, are untrue. This is a mere denial, not of the facts, but of her conclusion from the facts. His second affidavit does not deny that he stated to her the matter which she swears to, but says that he did not at 202 Webster Avenue enter into a contract of marriage to take effect at that time as in her affidavit stated, and that he did not make her his wife in the presence of a witness on the 27th day of June or at any other time. Here is no deuial that he stated to her the words which she swears in her affidavit he did state. It is as though he should say I do not deny that I made the statement sworn to, but I do deny that I was lawfully married, or that I made her my wife in the presence of a witness.

When it is remembered that appellant is a lawyer, and as we understand, drew his own affidavits, these equivocal denials gain additional significance.

But treating the affidavits as flatly, though inartificially, controverting the statements of appellee with regard to the marriage, there are statements of hers which are wholly undenied, and circumstances in the case practically admitted, which we think lend corroboration to her assertion of the marriage-It appears that an illicit relation commenced between appellant and appellee in the City of St. Louis, when appellee was only sixteen years of age, appellant being at that time a practicing lawyer and having a wife living. During the continuance of the relations of the parties at St. Louis two children were horn to them and appellee states that appellant repeatedly promised that he would marry her as soon as he should he divorced from his then wife. Appellant does not deny that he made such promises.

Appellee swears that she moved to Chicago at his request, and that after coming to Chicago, she, at his suggestion, called herself Ida M. Bowman so that when he married her the change of name would not be noticed. That she was always known in St. Louis by the name of Ida M. Clement.

These statements are not denied by appellant. Appellee has attached to her affidavit copies of letters and of a telegram. The telegram, which is dated the day after the divorce from his wife was granted and addressed to Mrs. I. M. Bowman, is: “ My case is decided, decree granted, expect me Sunday morning.” A letter of the same date, which announces that he is free! free!! and mentions the divorce, says: “Yon may expect to see me Sunday morning although it will be hard for me (I have traveled so far and so fast) to take the ride if I have to come back Sunday night; but I am so anxious to see you I will come if I can stay but for a day.” This telegram and letter are not denied, and appellant admits that he did come to Chicago to see appellee on the Sunday mentioned, and that is the day on which she claims that he married her as detailed in her affidavit. He needed no freedom to meet her in continuance of the impure relation. As between them it was important only as permitting him to enter at once upon a pure one.

There are also letters from appellant to appellee after the date of the alleged marriage, which, while they are not verbally inconsistent with the theory of continued meretricious relations between the parties and the contemplation by him of a marriage to be entered into with appellee in the future, seem to us to be on the whole more consistent with the theory that appellant and appellee were married, and were soon to live together in the permanent enjoj'ment of that relation.

There are other circumstances shown in the affidavits filed, some of which make for and some against the theory of a marriage, but we do not regard any of them as of sufficient weight to modify the conclusion which, in view of the entire record, we feel compelled to draw from the facts above detailed. We are of opinion that the evidence furnishes proof of a marriage sufficient to authorize the court to grant suit money and alimony pendente lite. To constitute marriage per verba de presentí no particular words are necessary. If what is done and said, evidences a present assumption by the parties of the marriage status, that is sufficient whatever may be the form of expression used. Stewart on Marriage & Divorce, Sec. 86.

The statements which appellee swears were made by appellant on the 27th day of June, when all impediments to a marriage between them had been removed, were sufficient to constitute a valid marriage between them, and while, for the purpose of this discussion, we treat appellant’s evasive denial of the marriage as denials of the facts stated by her, we find in the fact of the promises of marriage made during the meretricious relation and in the immediate seeking of her upon the granting of the divorce and hailing her triumphantly with the statement of his freedom, circumstances which go far to render her claim of a marriage on June'27th probable.

This probability is strengthened by the natural presumption that a man who has sustained to a woman a libidinous relation and has children born in said relation whose paternity he acknowledges, and for whom he expresses affection and love (as appellant most profusely does in his letters to appellee), will seek the earliest moment after all impediment is removed to free his children from the stain of illegitimacy, and to convert the impure relation with their mother into one at once legal, honorable and respectable. It is to be remembered too, that upon this interlocutory motion, the question of marriage or no marriage is not definitely settled.

While in an application for alimony the fact of marriage, if denied, must be proved, yet where it is practically the only fact in issue on said motion as it is in this case, the proof should not be required to go beyond establishing probable cause, or a fair probability that the petitioner will maintain her allegations.

As was said by the New York Court of Appeals in Brinkley v. Brinkley, 45 N. Y. 184, when considering this question: “ If there has been a binding contract of marriage, it is of public as well as private interest that it be shown and maintained. It is evident from what is before us that it can be shown and maintained only by professional skill and vigor, to secure which to the plaintiff pecuniary means are needed She is without such means, and if the defendant is her husband he should provide them.”

We are of opinion that, considering the fact that there is no answer to the bill, the record furnishes sufficient proof of marriage to authorize the court to enter the order for support and suit money, to enable appellee a fair opportunity to maintain her allegation on the final hearing.

3d. Had the complainant at the time of filing her bill such a residence in the State as entitled her to sue here for a divorce. The bill alleges that she is an actual resident of the City of Chicago and of the County of Cook, and is now and has been for one whole year last past, a resident of the State of Illinois, and that she was married to the defendant in Chicago, in June, 1886.

The bill does not state where the defendant resides, but does state that he is and has been for some years practicing law in the City of St. Louis. It is further alleged in the bill that in July and August succeeding the marriage, the defendant committed adultery in Washington, and that at divers times subsequent to the marriage and prior to September 5, 1886, he committed adultery in St. Louis. The bill was filed' in January. Though the jurisdictional facts are rather bunglingly stated in the bill, we gather from the allegations that complainant was, before her marriage, and .continued to be thereafter and up to the filing of the bill, an actual resident of this State; that while she was such actual resident, the defendant committed adultery in Washington D. C., in July and August, and continued to commit adulteries, till September 5th, at St. Louis, Missouri.

If the injured party is an actual resident of this State at the time the offense is committed, and the offense is committed without the State, and such actual residence continues till the bill is filed, the court will have jurisdiction though the residence has not been for one year. Way v. Way, 64 Ill. 406;

Counsel for appellant invites our attention to the evidence in this case which shows that appellant was at the time the bill was filed, and had been for more than twenty years, a resident of St. Louis, and he argues that such being the case, appellee took her husband’s domicile immediately on her marriage. If we may look to the evidence at all on this que stion, we may regard the facts which are consistent with the allegations of the bill and sustain the jurisdiction as well as those which defeat it, and we find that while appellee was actually residing in this State, appellant, on September 23,1888, married another woman in the State of New York, and that he lived with her in St. Louis, Missouri, until the date of filing the bill.

Now, granting that by a fiction of law the domicile of appellee, upon her marriage, became that of appellant in St. Louis, such fictitious domicile did not affect the fact of actual residence. It is said in Way v. Way, supra, that while a man may have several residences he can have but one domicile. There are authorities which seem to hold that residence and domicile are synonymous; that a wife, no matter where she in fact may abide, must in law be held to reside at the place of her husband’s domicile. This theory is excluded by the terms of our statute. By force thereof a married woman may be an actual resident of this State though she has no domicile here; and if, while she is such actual resident, the offense which supplies the ground of divorce is committed, because of the “ necessity of her separate and independent existence,” thereafter her actual place of residence becomes her separate and legal domicile.

Of course such residence is meant as is not a mere visit or temporary sojourn, but is an abiding animo menendi. Hopkins v. Hopkins, 35 N. H. 474; Dutcher v. Dutcher, 39 Wis. 651; Way v. Way, supra; Pate v. Pate, 6 Mo. App. 49. 1

We are of opinion, therefore, that the facts of the case clothed the court with full jurisdiction; that there was no error in the decree, and that the same must be affirmed.

Decree affirmed.