text:
    Sixty-Third and Halsted State Savings Bank and George Lenz, Appellants, v. Joseph Martin, Appellee.
    Gen. No. 41,805.
    Opinion filed January 19, 1942.

      Clausen, Hirsh & Miller, of Chicago, for appellants.
    Bathje, Hinckley, Barnard & Kulp, of Chicago, for appellee; Francis E. Hinckley, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The plaintiffs made a motion for summary judgment under section 57 of the Civil Practice Act (SmithHurd’s Ill. Anno. Stat., ch. 110, par. 181, p. 485 [Jones Ill. Stats. Ann. 104.057] and Supreme Court Bule 259.15, ch. 110, p. 523 [Jones Ill. Stats. Ann. 105.15]). Defendant moved to strike the motion. Affidavits for and against were submitted. The court denied the motion for summary judgment and allowed a motion to dismiss the complaint with judgment for costs against plaintiffs:

The suit is the aftermath of Martin v. Sixty-Third & Halsted State Savings Bank, 299 Ill. App. 123. On that appeal it appeared that Martin in the trial court sued to recover damages for alleged fraudulent representations through which, it was said, defendants induced him to purchase a note and trust deed for which he paid $8,000 (the face amount of the note plus accrued interest). The jury returned a verdict for plaintiff in the sum of $10,800, substantially the $8,000 with interest at 5 per cent up to the date of the verdict. The trial court on motion of defendants entered judgment in their favor, notwithstanding the verdict, and plaintiff appealed. This court reversed the judgment with directions to the trial court to enter judgment for plaintiff on the verdict. The cause was redocketed in the circuit court and judgment entered as directed.

July 29, 1939, plaintiffs (defendants in the prior suit) filed their complaint by which they prayed that as a condition to the payment of the judgment against plaintiffs (which they said they were ready to do) defendant be required to turn over the note and trust deed to them. They, also prayed an injunction against the transfer of the note and trust deed pending the litigation. May 21, 1940, plaintiffs filed a supplemental complaint stating that since the filing of the original complaint they had paid to defendant $11,852.55 in full satisfaction of the judgment and costs with interest. Defendant made a motion to dismiss the complaint which was denied by Judge Donald McKinlay. November 14, 1939, defendant answered the complaint denying its equity and denying that the plaintiffs were entitled to the relief prayed. May 21, 1940, plaintiffs made their motion for summary judgment. In support of it they submitted the complaint and supplemental complaint verified, the affidavit of Mr. Jones, the counsel for plaintiffs, the affidavit of Lenz, plaintiff, together with the affidavit of Mr. Mitchell, a court reporter who took down the proceedings at the first trial. In support of his motion to strike the motion for summary judgment defendant, Martin, submitted the affidavit' of his attorney, Francis E. Hinckley.

Plaintiffs contend the court erred in dismissing the complaints without a hearing irrespective of the question as to the merits of their motion for summary judgment. Plaintiffs made a motion to vacate that part of the order and moved the cause be set for hearing on the merits, but the motion was denied. The court did not set aside the order denying the former motion to dismiss. Plaintiffs contend under section 57 of the Civil Practice Act it was error for the court (particularly since an answer was on file) to grant the motion to dismiss for want of equity.- We find no authority in § 57 for such procedure. This certainly has not been the usual practice in this State. Harbert v. Mershon, 169 Ill. 52; Vanderpoel v. Cravens, 139 Ill. App. 463. The defendant, however, suggests that the motion to dismiss ivas proper under section 48 of the Civil Practice Act (Smith-IIurd’s Ill. Anno. Stat., § 48, par. 172, pp. 390, 391 [Jones Ill. Stats. Ann. 104.048]), and in support of this contention cites Thurber Art Galleries v. Rienzi Garage, 288 Ill. 35, and Municipal Employees Ins. Ass’n of Chicago v. Taylor, 300 Ill. App. 231. In the Thurber case the suit was dismissed after hearing on the pleadings and evidence. The bill was to recover possession of an automobile, in substance a replevin suit which was foreign to equity jurisdiction. No such claim can be maintained here The Taylor case held the court may consider a second motion to dismiss after it has denied a former similar motion but does not undertake to construe sections 57 or 48 of the Civil Practice Act. There was no basis for such a motion under the facts here disclosed under either section.

The memorandum opinion of the trial judge states: “The only conclusion therefor from an examination of the pleadings in this cause and of the proofs and abstracts presented to the Appellate Court in the Circuit Court case is that the plaintiff herein cannot prevail. ’ ’

In other words, it affirmatively appears from the record plaintiff’s cause was considered on the merits upon an affidavit filed in opposition to the motion for summary judgment and dismissed on the theory plaintiffs under the evidence could not recover. We do not understand any such practice to be proper under either section of the Civil Practice Act. However, we prefer to consider this case on the merits from the standpoint of plaintiffs ’ motion for summary judgment.

The answer of Martin is in substance to the effect that the original suit was not for the recovery of the money paid but sounded solely in damages; that the theory of his suit was that he had been injured through the fraudulent representations of plaintiffs and that his damages consisted of the difference between the actual value of the note and mortgage and what their value would have been if as represented by defendants, with interest thereon; that he has not thus far received payment for such damages; that he expended large sums of money in the litigation, a portion of which was not included ■ in the taxable costs, including attorney’s fees amounting to the sum of $4,250 and similar expenses, etc.

We hold the contention of defendant in this respect can not be sustained in view of the record in the suit of Martin v. Sixty-Third & Halsted State Savings Bank, and others, which is set up in the affidavits submitted in' support of the motion for summary judgment. The pleadings, instructions requested and propositions of law urged by the respective parties in the original suit are not entirely consistent. Martin’s amended declaration in three counts in substance avers that he purchased the note and trust deed relying on the representations of defendants as to its value, known by them to be false. The land securing the note (says the declaration) was “waste land of little or no value.” Rescission of the contract was not specifically alleged in the pleadings, although the facts stated (if true) showed a right in plaintiff to have it rescinded. It also appears at the request of defendants the court instructed the jury plaintiff’s suit for fraud affirmed the sale of the securities and if the jury found for plaintiff the measure of damages would be the difference between the actual value of the securities at the time of the transaction and what the same would have been worth if as represented, “with interest at five percent per annum up to the time of the trial.” Also, the trial court denied the request of Martin for an instruction that if plaintiff tendered the note and mortgage the damage would be the loss sustained by him with interest from the time of withholding at five per cent. However, the court modified this instruction by adding to it in substance that the loss in such ease would be the difference between the amount paid for the note and trust deed and the actual value thereof and gave the instruction as modified.

Notwithstanding the verdict for plaintiff, the court entered judgment for defendants. This was the condition of the record when defendants’ appeal reached this court. The truth appears to be plaintiff’s case was presented to the jury on both theories. It is no cause for wonder if the jurors were confused and misled. Plaintiff’s attorney in his opening statement told the jury that plaintiff tried to persuade defendants to give him back his money. Plaintiff’s attorney said: ‘ ‘ Our case is a suit against the bank and against these main officers of the bank to make them take this mortgage back and, give us back the money which was spent for it.”

In behalf of Martin, Mr. Hinckley requested the court to instruct the jury that if it found for plaintiff, and if plaintiff had tendered the .return of the securities, “then, the plaintiff’s damages consist of the loss sustained by him by reason of the transaction, together with interest upon the same from the time of the withholding of the money at the rate of five per cent per annum. ’ ’ The court modified this instruction by adding: “The loss of the plaintiff in such case is the difference between the amount paid for said mortgage notes, trust deed and other papers in question and the actual value thereof so far as the same appears from the evidence.”

It thus appears plaintiff by means of this requested instruction called the attention of the jury to the fact that plaintiff Martin had tendered back to the defendants the note and mortgage. This fact (we assume) was not called to their attention without design. It is also clear the fact was not without its effect upon the verdict of the jury. The sale was made September 9, 1930. Martin paid the face of the note ($8,000) plus accrued interest ($23.33). While Martin held the note and trust deed he collected interest on the same up to March 4, 1931, amounting to $240. The verdict of the jury was for $10,800 — substantially the amount of the face of the note plus legal interest from March 4, 4, 1931, to the date of the verdict and judgment. Moreover, in Martin’s brief in this court he said in substance the amount of the verdict was not subject to criticism. He said: “Suffice it to say that the jury concluded from the evidence that the security was worthless and found that the plaintiff was entitled to recover his money together with interest. In this connection it is significant to point out that the plaintiff brought his mortgage papers to the banker and demanded his money and later, upon the trial of the case, made a formal tender back of the papers.”

If the opening statement of attorney for plaintiff was by inadvertence this statement in his brief was not. This court understood the verdict was rendered upon the theory the note and mortgage were tendered back. This is apparent from our opinion. We said: “Apparently the jury was of the opinion that plaintiff was entitled to recover the principal amount he gave defendants — $8,000.00 — with interest, which is approximately the amount of the verdict. We see no reason to disagree.”

Defendants presented a petition for leave to appeal to the Supreme Court, which plaintiff answered. In his brief he said: “The plaintiff tendered back the papers he had received and the defendants claimed that he was entitled to nothing. The jury found their verdict in the plaintiff’s favor and assessed the damages at the amount the plaintiff had parted with plus interest during the time he was kept out of the possession of his' money, in accordance with the rule of damages laid down by this Court in Horne v. Walton, 117 Ill. 130.” The petition for leave to appeal was denied.

In summary, it appears by statement to the jury, by evidence of tender submitted in open court, by argument based thereon in this court and in the Supreme Court, Mr. Martin obtained a judgment for the full amount he lost by reason of the alleged misrepresentations of defendants. On this theory he obtained the order of this court for reversal of the judgment entered by the trial court in favor of defendants and persuaded the Supreme Court to deny leave to appeal by which that judgment could be reviewed as requested by defendants. He has now received from the defendants through payment of the judgment in full the money with which he parted, interest thereon and all costs allowed by law. Having thus striven for and obtained these things on clear equitable principles we hold he is estopped to contend that he has also the right to appropriate as his own the securities which he tendered before the jury and the court and (in this court and the Supreme Court) argued that he was entitled to the benefit of that tender. A court of equity looks to the substance rather than the form of things. He who pays for a thing is entitled to receive it, in equity becomes the owner of it. Wertheimer v. Glans, 277 Ill. App. 389, 392; Liebundguth v. Firebaugh, 309 Ill. App. 447, 454. Mr. Martin cannot in equity hold the note and trust deed in one hand as his own, while with the other hand he accepts that which he elected to take in full payment thereof. The fraud as to the bank and Lenz is purged by the payment of the judgment. To allow what Martin now asks would be to permit and enforce by the arm of a court of equity a worse fraud. The bank and Lenz have paid to the uttermost farthing. They are not in court with unclean hands. Fagan v. Rootberg, 320 Ill. 586, 594. The judgment will be reversed and the cause remanded with directions to the trial court to grant plaintiffs’ motion for summary judgment.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    People of the State of Illinois ex rel. Arthur E. Claussen et al., Appellants, v. City of Chicago et al., Appellees.
    Gen. No. 41,902.
    Opinion filed January 19, 1942.
    James J. Glassner, Einar Howard, Edwin Hamilton and Clarence Hortsman, all of Chicago, for appellants.

      Richard S. Folsom, of Chicago, for certain appellees ; Frank S. Righeimer, Frank R. Schneberger and H. Meyer Simborg, all of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for certain other appellees; James A. Velde and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Relators appeal from an order striking their petition for mandamus and dismissing their suit. The prayer of the petition was that proper officials of the Board of Education, the City of Chicago and Cook county be required to issue a voucher and checks for their benefit in the total amount of $519,301.55 with interest.

The petition shows by facts set up in detail relators were the owners of premises (subdivided for apartments) in Chicago which the Board of Education by resolution decided to appropriate for school and playground purposes. To that end the board filed a petition in the circuit court of Cook county under the Eminent Domain Act on July 16, 1930; on July 16, 1931, the board procured a judgment that the school board pay to relators the sum of $370,797.51 with costs and interest as damages for taking their property. Pending the proceeding the board, both before and after the judgment of July 16, 1931, committed acts which amounted to taking possession of the premises; the premises were permanently damaged by its acts, and these things were done with the acquiescence of relators, the owners. The acts are stated in detail and it is unnecessary to restate. We assume the acts as recited amounted to the exercise of dominion over the premises as the petition avers.

The judgment entered directed the Board of Education, to pay within 90 days compensation as fixed by the judgment order. The board did not and has not paid. On March 4, 1932, the board procured the entry of an order vacating the judgment for compensation, and certain of the defendants thereupon filed their petition under section 10 of the Eminent Domain Act [Jones Ill. Stats. Ann. 109.255] to obtain payment (not of the judgment for compensation) but for costs, expenses and attorneys’ fees as provided by that act. In this proceeding on October 3, 1932, they obtained judgments in their favor in the aggregate amount of $17,000, which have been paid in full.

This petition to compel by writ of mandamus payment of the judgment entered July 16, 1931, was filed September 8, 1939. Prior thereto on July 28 of the same year, the circuit court entered an order setting aside the order of March 4,1932.

We are not aware of any theory upon which mandamus would lie to compel the payment of this judgment under the circumstances related. The proceeding to condemn was under the Eminent Domain Act and not under the Local Improvement Act. The difference between judgments entered under these statutes is fundamental and fully explained in Rieker v. City of Danville, 204 Ill. 191. The essential difference is that under the Local Improvement Act after the return of the verdict the petitioner is required within 90 days to elect whether a final judgment shall be entered or the proceeding dismissed, while under the Eminent Domain Act there is no such provision the statute providing that the right to enter shall be conditional upon the payment of the amount of compensation fixed by the verdict of the jury. Under the Local Improvement Act the judgment entered upon election of the petitioner is final and of the same nature as any other judgment for the payment of money. The judgment under the Eminent Domain Act is purely conditional in its nature. Under that act the petitioner may enter only upon the payment of the compensation. There is no authority in the statute to enter final judgment against a petitioner who refuses to pay. The court may in its discretion dismiss the suit upon failure to pay and may assess damages as provided by the statute, but the judgment entered is purely conditional. The brief for petitioner indicates the distinction between these" two kinds of judgments has not been kept in mind.

In support of its contention that mandamus will lie relators cite City of Chicago v. Thomasson, 259 Ill. 322; People ex rel. Euziere v. Rice, 356 Ill. 373; People ex rel. Farwell Co. v. Kelly, 361 Ill. 54; People ex rel. First Nat. Bank of Blue Island v. Kingery, 369 Ill. 289. No one of these cases (understandingly read) is authority for their contention. All of them with the exception of the Thomasson case are actions in mandamus to compel the payment of a final unconditional judgment due and unpaid.

Petitioners say the Thomasson case is identical with the case at bar. They are mistaken. The case is not even analogous. The city in the Thomasson case filed condemnation proceedings to condemn certain lots for the improvement of a street. Afterwards with the consent of the owners it took possession and completed the improvement. The ordinance authorizing the condemnation suit. provided the improvement should be paid for in part by assessment to be levied on the property benefited and the remainder by general taxation. The assessment was levied and the amount collected thereon paid on the judgments. Thomasson filed a petition in the condemnation suit asking for an unconditional judgment for the amount of the compensation for taking his property with interest from the date of taking possession. His petition was dismissed. The order of dismissal on appeal to this court was affirmed. On further appeal to the Supreme Court the judgments of this and the trial court were affirmed. There was no abandonment of the proceeding to condemn in that case as there was in this, nor order vacating the condemnation judgment. The case instead of being for relators is against them.

We assume a taking possession and damaging of relators’ property as averred in their petition, but the cases are numerous in this State holding that such taking pending a proceeding to condemn under the Eminent Domain Act does not give the owner a right to compel the condemnor to proceed with his suit if he sees fit to abandon it (Chicago, St. L. & W. R. Co. v. Gates, 120 Ill. 86), and that a condemnor is not precluded from abandonment by the fact that he has appropriated relators’ land where the appropriation would not vest title (People ex rel. Carofiglio v. Gill, 291 Ill. App. 143). It may well be that such a taker might be liable in trespass. The plaintiffs cite authorities to the effect that the constitutional provisions against taking or damaging private property for public use without just compensation are self-executing. This is the law as many cases cited hold. (Mecartney v. City of Chicago, 273 Ill. 276.) It by no means follows that in the first instance mandamus is the appropriate remedy. The judgment will be affirmed.

Affirmed.

McSurely, P. J., and 0 ’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    Marie Merlo, Administratrix of Estate of Ceasar Merlo, Deceased, and Frances Salvato, Administratrix of Estate of John Salvato, Deceased, Appellees and Cross Appellants, v. Public Service Company of Northern Illinois, Cross Appellee, and Charles M. Porter Company, Appellant and Cross Appellee.
    Gen. No. 40,434.

      Opinion filed January 19, 1942.
    Cassels, Potter & Bentley, of Chicago, for appellant and cross appellee; Ralph F. Potter, Leslie H. Vogel, Horace G. Marshall and Richard H. Merrick, all of Chicago, of counsel.
    Barasa, Rinella & Barasa, of Chicago, for appellees and cross appellants; Joseph Barbera and Bernard P. Barasa, Jr., both of Chicago, of counsel.
    Gardner, Foote, Morrow & Merrick, of Chicago, for cross appellee; Walter M. Fowler, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs, as administratrices of the estates of their deceased husbands, brought an action under the Injuries Act to recover for their wrongful deaths, the two men having been electrocuted April 15, 1936, while at work in the construction of a sewer in the Village of ■Maywood, Illinois. Defendant, the Public Service Company of Northern Illinois, a corporation, was charged with negligence in the maintenance of a line of wires 'carrying a high voltage of electricity along Oak street, -in Maywood, where the sewer was being constructed; and defendant Charles M. Porter Company, a corporation, was charged with negligence in the operation of a steel crane used in the construction of the sewer. There was a jury trial and a verdict finding both defendants guilty and assessing plaintiffs ’ damages, on account of the death of one of the deceased at $4,000 and in the other, $2,500. Afterward judgment was entered in favor of defendant, Public Service Company of Northern Illinois, notwithstanding the verdict, and judgment was entered on the verdict against defendant, Charles M. Porter Company, a corporation.

Charles M. Porter Company prosecutes this appeal and plaintiffs prosecute a cross appeal seeking to reverse the judgment entered in favor of defendant, Public Service Company, notwithstanding the verdict.

The record discloses that some months prior to January, 1936, the Village of Maywood entered into an agreement with the Works Progress Administration for the construction of a sewer in the Village. The work was to be done by the W.P.A. but the Village was to furnish a machine to be used in the construction of the sewer. An oral agreement was entered into between the Village and the Porter Company, whereby the Porter Company was to furnish a machine and a man to operate it to be used in digging a trench and afterward placing the sewer pipe in the trench, for which the Village was to pay $6 a day for the machine and operator. The Porter Company was to make the necessary repairs on the machine and the Village was to furnish gas and oil used in the operation of it. As the work progressed the Porter Company presented its bills, they were paid by the Village and the Porter Company paid the operator.

The machine was of the caterpillar type and moved along as the work progressed. There was a boom to which a bucket or shovel was attached for digging the trench and the machine was operated by Leo Wagner, who had worked for many years for the Porter Company in the operation of this machine. Wagner went to work operating the machine and the W.P.A. men would tell him where to dig the trench, how wide, how deep, etc., and where to place the dirt. After the trench, about 50 feet in length, was made the bucket or shovel would be removed from the crane and a hook substituted which was to be used in loading the heavy concrete sewer pipes into the trench.

A few days after the work was started it was found the boom was too short and it was lengthened from 40 to 45 feet. This lengthening was done by Wagner, a man from the Porter Company, and some W.P.A. men. As Wagner was operating the machine in the digging of the trench or the placing of the pipes he would be given signals by the W.P.A. foreman, who would swing his arms out or hold them in front. Wagner was the only one who handled the machine.

The trench for the sewer was dug along the north side of Oak street, an east and west street in the Village. The work was begun prior to January 1, 1936, near First avenue and progressed west to near Tenth avenue where the accident occurred April 15, 1936.

The tip of the boom came in contact with wires of the Public Service Company which were carried on poles about 29 feet overhead. The wires carried a high voltage of electricity and at the time of the occurrence, Ceasar Merlo and John Salvato, two workmen employed by the W.P.A., had hold of a metal, cable which they were about to use in lowering the tile into the ditch. As a result of the contact between the boom and the wires, the two men were killed.

(1) The Porter Company contends that at the time of the occurrence Leo Wagner was not its employee or agent; that it was not liable for his acts. In this connection its counsel say: “On this appeal, so far as defendant Porter Company is concerned, the sole question presented for determination is whether or not such an agency existed between Wagner and the Porter Company as made it liable for his negligence.” And counsel argue that the court erred in refusing to hold as a matter of law that the operator of the crane [Wagner] was not, at the time of the occurrence, the servant of the defendant Porter Company and in support of this cite Meyer v. All-Electric Bakery, Inc., 271 Ill. App. 522; Perong v. Eudeikes, 223 Ill. App. 72; Allen-Garcia Co. v. Industrial Commission, 334 Ill. 390; Thompson v. Industrial Commission, 351 Ill. 356, and cases from other jurisdictions.

Some of these cases support counsel’s contention but we think it unnecessary to discuss the facts and analyze the cases for the reason we are of opinion that viewing the evidence most favorably to the Porter Company, the question whether Wagner was its agent was for the jury. Densby v. Bartlett, 318 Ill. 616; Standard Oil Co. v. Anderson, 212 U. S. 215; Connolly v. Peoples Gas Light & Coke Co., 260 Ill. 162; Meredosia Levee District v. Industrial Commission, 285 Ill. 68; Case of Emack, 232 Mass. 596.

The evidence in the Bartlett case showed that Bartlett was engaged in selling real estate in Chicago and vicinity. John T. Saracino was in the business of letting automobiles for hire and furnishing drivers. Bartlett contracted with Saracino to have him transport Bartlett’s prospective customers, Saracino to furnish the machines and chauffeurs. One of Saracino’s automobiles, driven by his chauffeur, was taking plaintiff, Densby, one of Bartlett’s customers, to his home when through the negligence of the driver Densby was severely injured. He brought suit for damages against Bartlett and Saracino. A verdict was rendered against both of them but judgment n.o.v. was entered in favor of Saracino and against Bartlett on the verdict and he appealed. The Appellate Court affirmed the judgment but on a further appeal the judgment was reversed by the Supreme Court, the court holding that the driver of the automobile in which Densby was riding was not Bartlett’s agent at the time. The court there discussed a number of authorities from Illinois, and other states and quoted with approval the following from Shephard v. Jacobs, 204 Mass. 110 (where the owner of an automobile hired it to another with a licensed chauffeur to drive and was sued for damages occasioned by the negligence of the driver, and the owner was held liable): “In the application of these principles to the hiring of a carriage with horses and a driver, to be used for the conveyance of the hirer from place to place, it has been held almost universally that in the care and management of the horse and vehicle, the driver does not become the servant of the hirer, but remains subject to the control of his general employer, and that therefore the hirer is not liable for his negligence in driving. . . .

“If the defendants had furnished horses, a carriage and a driver under a similar contract, instead of an automobile and a driver, there would be no doubt of their liability for the negligence of the driver in the management of the team. The question is whether the same result should be reached upon the facts of this case. The analogy between the two kinds of contract is very close. The management of an automobile properly can be trusted only to a skilled expert. The law will not permit such a vehicle to be run in the streets except by a licensed chauffeur of approved competency. The danger of great loss of property by the owner, as well as of injury to the chauffeur, his servant, is such as to make it of the highest importance that care should be exercised in his interest, and that the control and management of the machine should not be given up to the hirer. The reasons for applying this rule in a case like the present are fully as strong as when a carriage and horses are let with a driver. ’ ’ And continuing, our Supreme Court in the Bartlett case said: “Whether appellant was liable depends upon whether he was the master and the driver of the car his servant. Perhaps the most universal and unfailing test in determining’ the relation of master and servant is where the control of the servant includes the power to discharge. Where that is so, the relation of master and servant exists.” Whether the relationship of master and servant existed might be obscured by circumstances so that no one fact Avould be decisive. “Where the servant of the general master is temporarily loaned or hired to another for some special service and becomes for the time wholly subject to the control of the person to whom he is loaned or hired and wholly freed from the control and direction of the general master, he becomes the servant, for the time being, of the person to whom he is loaned or hired and during such time becomes the servant of the latter. . . . The proof does not show Saracino surrendered the manner in Avhich the car should be driven wholly to the control and direction of appellant. . . . Many of the cases above cited expressly hold that the right of the hirer to direct the driver when and where to go, Avhom to haul and the route to travel does not place the driver under the control of the hirer as to the manner of driving the car. In that regard he is doing the Avork of the general employer and is not subject to the control of the hirer.”

In the instant case the operator of the machine, Wagner, Avas skilled in the operation of such a machine. The Porter Company Avanted to see that the machine Avas properly operated. It did not turn the manner of the operation over to anyone and although signals were given to Wagner when to raise and lower the boom, etc., by the W.P.A. men, they Avere only cooperating with him in the operation of the machine. Moreover, the Porter Company repaired the machine and kept it in order as it agreed to do and the evidence shows the day after the accident when the Public Service Company’s operating foreman called at the place where the sewer was being constructed, he found “They were putting a wooden frame over the end of the boom. ” It must be assumed this was done for the purpose of preventing the end of the boom from coming in contact with one of the electrically charged wires overhead. We think the question as to the Porter Company’s liability was for the jury.

(2) As to the liability of the defendant, the Public Service Company of Northern Illinois.

After the verdict was rendered against the Company it withdrew its motion for a new trial and its motion for judgment n.o.v. was sustained. Its counsel in their brief say the only charge of negligence made against it was “that the defendant failed to insulate its wires and permitted the same to become bare and unprotected and in a sagging condition.” That the Public Service Company was not required to insulate its wires because it constructed and maintained them in accordance with the rules and regulations laid down by the Illinois Commerce Commission and that the wires in question ■were not required by the Commission to be insulated. That the rules of the Commission required the wires to be but 20 feet above the ground while the evidence shows that its wires were approximately 29 feet above the ground. We think compliance by the Public Service Company with the requirements laid down by the Commission is not decisive of the question. The question is whether, under all the circumstances disclosed by the evidence, there was any negligence on the part of the Public Service Company that proximately contributed to the accident.

The evidence is to the effect that the wires had been constructed about 30 years before the accident; that they were covered with waterproof material which had become decayed so that in some places it hung down and the wires were nearly bare; that the wires sagged; that there was a strong wind blowing at the time which might have caused them to move from side to side. The wires “carry 4,000 volts between phases — -2300 volts to ground.” That Mr. Forsyth who had been employed for 14 years as trouble shooter by the Public Service Company was at the place they were constructing the sewer in January, 1936; he testified “At that time I told the W.P.A. foreman that there was 4,000 volts in the wires he was working under and I said he should keep his boom down so he would clear the wires. I had the foreman stop the crane so I could talk to the crane operator. I told the crane operator and the foreman at the same time about the conditions they were working under. They said they would keep their boom clear of the wires.”

In view of all the evidence we think whether the Public Service Company was guilty of negligence was a question for the jury and not for the court. Austin v. Public Service Co., 299 Ill. 112.

The judgment of the circuit court of Cook county as to defendant Charles M. Porter Company, a corporation, is affirmed. The judgment n.o.v. in favor of defendant Public Service Company, of Northern Illinois, a corporation, is reversed and the matter remanded to the circuit court with directions to enter judgment on the verdict against that company also. •

Judgment affirmed in part, reversed in part and remanded with directions.

MoSurely, P. J., and Matchett, J., concur.


author: Mr. Justice O’Connor Mr. Justice Matchett

text:
    Sadie Fisher and Elmer Fisher, Appellees, v. United States Fidelity and Guaranty Company, Appellant.
    Gen. No. 40,724.

      Opinion filed January 19, 1942.
    Rehearing denied February 2, 1942.
    McInerney, Epstein & Aevey, of Chicago, for appellant ; John L. McInerney and George L. Siegel, both of Chicago, of counsel.
    A. S. & E. W. Froehuch, of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal defendant, United States Fidelity & Guaranty Company, a corporation, seeks to reverse a judgment entered against it for $45,000.

The record discloses that plaintiffs brought an action against Joe Goldberg, Inc., a corporation and United States Fidelity & Guaranty Company, a corporation, as principal and surety on a bond executed by them June 12, 1937, in which it was recited that the principal, Joe Goldberg, Inc., had entered into a written agreement with plaintiffs for the erection of a building on West Roosevelt Road, Chicago. The bond for $64,000 was in the usual form providing that if the building was constructed the bond would be void, otherwise to remain in full force and effect.

While the suit was pending, Joe G-oldberg, Inc., was dismissed as a defendant for the reason that the United States Federal Court of this district had enjoined the prosecution of any suits against it because of a 77B bankruptcy proceeding in that court. The remaining defendant, the surety company, filed three successive answers, parts of which were stricken on motion of plaintiffs. An amendment to defendant’s answer was filed August 17, 1938, and plaintiffs’ motion to strike that amendment was sustained October 11, 1938. On that day it was ordered that plaintiffs ’ motion to strike the amendment to defendant’s answer be sustained, the amendment was stricken and it was further ordered,, on motion of attorneys for plaintiffs, “that this cause be and it is hereby set before this Court for Nov. 17, 1938, for hearing and trial upon the assessment of plaintiffs’ damages in this cause.”

When the cause was reached for trial, November 17, a jury was waived and thereupon counsel for defendant called the Court’s attention to the fact that at the time the amendment to defendant’s answer was stricken it was agreed by Court and counsel that defendant might file an amended answer so as to obviate plaintiffs’ objections that the amendment to the answer stated conclusions and not facts and that this might be done at any time before or during the trial, and submitted an amendment, but on objection by counsel for plaintiffs, leave to file it was denied. The evidence was then submitted, the Court found the issues in plaintiffs’ favor, assessed the damages at $45,000 and this appeal followed.

Plaintiffs owned real estate known as 3715-3717 and 3719 West Roosevelt Road, Chicago, which was improved with a one-story building containing three stores. June 12,1937, plaintiffs entered into a contract with Joe Goldberg, Inc., a corporation, as contractor, and the Road Theatre, Inc., as lessee, whereby Goldberg was to demolish the old building and construct a new one on the premises for $64,000.

The new building was to be used as a motion picture theatre and two small stores. March 3,1937, plaintiffs, as lessors and the Road Theatre, Inc., as lessee, entered into a written lease for a building which was thereafter to be constructed. The lease covered a period of '20 years from October 1, 1937 to September 30, 1957, at a rental of $264,000, payable in monthly installments of $1,000 each for a certain period. Thereafter it was increased to $1,200 per month and in addition the lease provided that in the event the gross income derived from the operation of the moving picture theatre was in excess of certain specified figures, 10 per cent of such excess should be paid as additional rent. „

April 15,1937, a permit was obtained from the Commissioner of Buildings for the construction of the new building. Plans and specifications for the building were agreed upon and July 7,1937, Joe Goldberg, Inc., took possession of the property and demolished the old building except certain of the side walls which were to be used in connection with the construction of the new building in about a week. Thereupon Goldberg, Inc. started to construct the new building when almost immediately it was stopped July 18,1937, by the Commissioner of Buildings of the city on the ground that it was a violation of an ordinance of Chicago to construct the theatre because it was within 200 feet of a church and Goldberg was prohibited by the police from proceeding .with the construction of the new building. A day or two later the parties met to see if the matter could not be adjusted so that the building might be constructed but while the building might legally be constructed, it was said it could not be operated as a moving picture theatre and thereupon the lessee, the Road Theatre, Inc., stated it was not interested in the lease unless it could operate the moving picture theatre. After some further negotiations the lease was cancelled December 9, 1937, apparently by agreement of all parties, and in the spring of 1938, plaintiffs erected a new building upon the premises consisting of four stores at a cost of $28,000 which brought in a rental of $500 per month.

Section 1893 of the Revised Chicago Code of 1931 provides that theatricals, shows and amusements, operated for gain to which the public is required to pay a fee, shall be divided into 22 classes, one of which includes motion picture entertainment, and section 1905 provides: “None of the foregoing twenty-two classes of entertainments shall be produced, offered, presented or carried on in any building not now devoted to such purposes within two hundred feet of any church, . . . said distance to be measured between the nearest point on the building within which it is proposed to produce, offer, present, or carry on, such entertainment or entertainments and the nearest point on such church.” The plat of the premises in question shows there was a church 144.8 feet from the proposed theatre building, this distance being measured between the nearest point of the proposed theatre building and the church as the ordinance expressly provides.

Section 415 of the Revised Code of 1931 provides that the Commissioner of Buildings “shall have power to stop the construction of any building . . . when the same is being done ... in violation of any ordinance.” These ordinances and others were interposed in defendant’s answer as a defense but on motion of plaintiffs they were stricken and plaintiffs contend properly so, because they constituted no defense. In this connection counsel say: ‘‘ The rulings of the Court upon the pleadings were correct, and the various answers were properly stricken for the reason that they failed to set forth facts which constitute any of the defenses to this suit which they purport to state, to wit: Illegality, impossibility of performance, legal frustration, or so-called mutual abandonment.” And continuing counsel say: “The essential conditions of the bond are as follows: ‘That if the said Principal shall well and truly perform and fulfill all of the covenants, conditions, stipulations and agreement in said agreement mentioned to be performed and more particularly described in said Exhibits “A” and “C” . . . and if the said Principal shall pay to the said Obligee all damages or forfeitures which may be sustained by reason of the non-performance or mal-performance on the part of the said principal of any of the covenants, conditions, stipulations provided in the said agreement and more particularly described in Exhibits “A” and “C,” then this obligation shall be void; otherwise the same shall remain in full force and virtue.’ ” And counsel argue that “The condition of this construction bond is double. It contains both a guarantee that the contractor shall perform his contract, and an indemnification against all damages. It is a contract of guarantee insurance.” They say that “Section 1905 [of the ordinance] does not pretend to prohibit anything except the production, under certain conditions, of theatrical performances; nothing short of the production, or attempted production of theatrical performances under the conditions stated is illegal. . . .

‘ ‘ So the essential question posed by the answer is: how can this ordinance, which only forbids the producing of moving picture entertainment in this location if, as and when such entertainment is offered, render illegal a contract for the demolition of an old building and the construction of a new one? Nay, further: how can it make illegal the particular instrument sued on in this case, which is a separate and distinct legal obligation, the insurance against loss resulting from any breach of the contract to demolish and construct? ... It [the bond] is not conditioned upon anything else.

“Stated otherwise, there is not a single syllable in the pleaded ordinance which inveighs against the erection of any kind of a structure, anywhere, for any purpose. The ordinance does not even say that the structure when completed cannot be used. It does not purport to deal with a structure. It declares only that no entertainment shall be produced. It is the theatrical . production, and not the use of the structure, which the ordinance purports to license, regulate, or forbid. Unless and until some one attempts to produce a theatrical entertainment in the building after its completion, such a thing as a violation of the ordinance simply cannot and does not occur.”

The harsh rule of law contended for by counsel for plaintiffs which would render the surety company liable on its bond, if the new building were not constructed because it could not be used for the purpose for which it was constructed and therefore a particularly useless expense would be incurred, has been somewhat relaxed. Section 454 Bestatement of Contracts; §1931, p. 5407, 6 Williston on Contracts, Rev. Ed.; Chicago M. & St. P. R. Co. v. Hoyt, 149 U. S. 1; The Kronprinzessin Cecilie, 244 U. S. 12; Levy v. Rosen, 300 Ill. App. 523. In defining the impossibility of performance of contracts, § 454 of the Bestatement states: “In the Bestatement of this Subject impossibility means not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved.” And the “Comment” following this section is: “a. A statement that it is only when facts make performance impossible that they have the operation stated in this Chapter, and that it is not enough that they create extreme difficulty must be interpreted in order to be correct. ‘Impossible’ must be given a practical rather than a scientifically exact meaning. Impracticability rather than absolute impossibility is enough; and the words ‘impossible’ and ‘impossibility’ are used in the Bestatement of this Subject with that meaning. Mere unanticipated difficulty, however, not amounting to impracticability is not within the scope of the definition. ’ ’ Professor Willis-ton in § 1931 above cited, in discussing the development and nature of the modern defense of impossibility of performance of a contract says: ‘ ‘ The law must adopt either a strict rule which will require the parties, when they form a contract, to forsee its consequences as accurately as possible, though at the expense of serious hardship to one of them if unforeseen circumstances render it impossible to perform his promise, or a rule giving an excuse under such circumstances. The early cases accepted the former alternative; the later cases tend to adopt the other.” After stating the strict rule of enforcement of contracts and later the relaxation of the rule he continues: “the essence of the modern defense of impossibility is that the promised performance was at the making of the contract, or thereafter became, impracticable owing to some extreme or unreasonable difficulty, expense, injury, or loss involved, rather than that it is scientifically or actually impossible. While the mere fact that performance of a promise is made more difficult and expensive than the parties anticipated when the contract was made will not ordinarily excuse the promisor as is shown by cases too numerous for citation, nevertheless there are other decisions allowing an excuse where very greatly increased difficulty had been caused by facts not only unanticipated but inconsistent with the facts that the parties obviously assumed to exist or to be likely to continue. The true distinction is not between difficulty and impossibility. A man may contract to do what is impossible, as well as what is difficult, and be liable for failure to perform. The important question is whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of both parties when they entered into the contract. If so, the risk should not fairly he thrown upon the promisor. ”

In the instant case it is clear all parties were of opinion and assumed that the moving picture theatre could legally be constructed and operated on the property in question. A tripartite agreement was entered into between plaintiffs, the owners, the contractor, Joe Goldberg, Inc., a corporation, and the Road Theatre Company and a lease covering a period of 20 years was also executed between plaintiffs, as lessors, and the Road Theatre Company, as lessee. A permit was obtained from the City for the construction of the theatre and the bond in suit specifically refers to the tripartite agreement which in turn refers to the lease and the construction agreement entered into between plaintiffs and Goldberg, Inc. All of these documents must be construed together and when so construed we think it obvious no party anticipated that the construction of the theatre was in violation of any ordinance. The contract for the construction and operation of the building being in violation of the ordinance, was unenforceable. Bairstow v. Northwestern University, 287 Ill. App. 424; Wolthausen v. Lederer, 313 Ill. App. 143 (Abst.), opinion filed this day. We think the court erred in striking the ordinance from defendant’s answer.

Since the judgment must be reversed and the cause remanded we think we ought to say that if upon re-docketing the case defendant requests the court for leave to file the answer which it submitted just prior to the beginning of the trial (the substance of which was that by agreement of all parties the construction of the theatre building was abandoned) it should be permitted to do so.

Contrary to defendant’s contention we think the cancellation of the 20 year lease was a proper element of damage to be considered.

The judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed and remanded.

McSurely, P. J., concurs.

Mr. Justice Matchett

specially concurring: I agree this cause should be remanded to permit the defendant to interpose its answer that after the execution of the bond all the parties mutually agreed to abandon the enterprise upon which it was based.

I do not agree with the theory that under the facts here appearing it was either impossible or impracticable to perform the contract, nor do I think the facts bring this case within the class to which the doctrine of “frustration” is applicable. Williston on Contracts, Vol. 6, § 1935, p. 5419.


text:
    Gladys McVeigh, Individually and as Guardian of the Persons and Estates of Thomas McConnell and Charles Dewey McConnell, Minors, Appellee, v. Ruth T. McConnell, Individually and as Administratrix of Estate of Thomas F. McConnell, Deceased, Appellant, Jane Catherine McConnell et al., Coparty Appellant.
    Gen. No. 40,978.

      Opinion filed January 19, 1942.
    Castle, Williams & McCarthy, of Chicago, for appellant; Howard R. Brintlinger and Robert R. Hanley, both of Chicago, of counsel.
    Thomas Dodd Healy, Lloyd Faxon and Harry Wiggins, all of Chicago, for appellee.
    Harry A. Fleck, guardian ad litem, for coparty appellant.
   Mr. Justice O’Connor

delivered the opinion of the court.

Gladys McVeigh, individually and as guardian of her two minor children, filed her complaint in chancery against Ruth T. McConnell, individually and as administratrix of the estate of Thomas F. McConnell, deceased, and their two minor children, praying that a written agreement entered into March 18, 1935, between plaintiff Gladys McVeigh, and Thomas F. McConnell be declared null and void on the ground it was obtained from plaintiff by means of fraud and deceit, for an accounting and for other relief. The cause was referred to a master in chancery who made up his report, found there was no fraud or advantage taken of Gladys McVeigh in procuring the execution of the agreement of March 18, 1935, and therefore it was valid and binding upon her but not upon her two minor children for whom she sues as guardian. The master recommended the allowance of the two minors’ claims aggregating $18,618.33 by the probate court where the estate was being administered, as of the sixth class. Afterward the master sustained objections to part of his report, made up his supplemental report in which he held that whether the agreement of March 18, 1935, was valid and binding on the parties should be passed upon by the circuit court of Cook county where the matter of the disallowance of the claim by the probate court was pending on appeal and recommended the dismissal of the complaint for want of equity. The chancellor sustained the master in some respects, overruled him in others, and a decree was entered in which it was found (following the master) that no fraud was practiced on Gladys McVeigh in obtaining the execution of the contract of March 18, 1935. Accordingly she was bound by that agreement from making any further claim against the estate of Thomas F. McConnell, deceased, but also held as did the master, that the agreement did not bar plaintiff’s two minor children. The court also found that under the terms of the divorce decree entered by the superior court of Los Angeles county, California, between Gladys McConnell (now Gladys McVeigh) and Thomas F. McConnell, there had accrued for the support and maintenance of the two minor children and would accrue during their minority if they both lived, $17,918.33; that Thomas F. McConnell, subsequent to the California divorce, had married Ruth T. McConnell and two children were born as a result of such marriage, one six and the other two years of age; that it would be inequitable in view of the size of the estate left by Thomas F. McConnell to allow the claim of the two children in full, and it was decreed that their claim be allowed by the probate court of Cook county for $8,000 as of the sixth class. From this decree Ruth T. McConnell, as heir, and as administratrix of the estate of Thomas F. McConnell, deceased, and her two minor children, appeal.

Gladys McVeigh, individually and as guardian of her two children, prosecutes a cross appeal contending her claim and that of her two children should have been allowed in full.

The record discloses that November 27, 1920, plaintiff was married to Thomas F. McConnell, in Santa Barbara county, California. Two children, Thomas F. McConnell, Jr. and Charles Dewey McConnell were born of that marriage who, at the time of the entry of the decree in the instant case, were 18 and 16 years of age respectively. March 16,1928, Gladys filed her bill ■for divorce against Thomas F. McConnell in the superior court of California, Los Angeles county, and four days thereafter, March 20, 1928, the parties entered into a written agreement in which was recited their marriage, unhappy differences, etc. Their property was stated to be household furniture, an automobile and an equity of $5,150 in a building and loan association. The household goods were given to the wife, the automobile to the husband and disposition of the interest in the building and loan association was provided for. By a further provision it was agreed that Thomas should pay $150 per month for her support and maintenance as long as she remained unmarried and $100 a month for the support and maintenance of the two children during their minority. Three days after the execution of this agreement plaintiff obtained an interlocutory decree of divorce and May 6, 1929, a final decree of divorce was entered.

In the interlocutory decree it was adjudged that ‘1 The minor children of the parties hereto are awarded to the plaintiff and the property settlement heretofore entered into by and between plaintiff and defendant is approved and made a part of this decree.” In the final decree it was “further ordered and decreed that wherein said interlocutory decree makes any provision for alimony or the custody and support of children, said provision be and the same is hereby made binding on the parties affected thereby the same as if herein set forth in full. ’ ’

June 12,1929, Thomas F. McConnell was married to defendant Ruth T. McConnell and two children, Jane and John, were born of that marriage, one of whom was born after the father died as a result of an automobile accident, and at the time of the decree in this case Jane was 6 and John 2 years of age.

Plaintiff Gladys, was married April 7, 1933, to Thomas Blake MoVeigh but was divorced from him in 1937. After the decree of divorce was entered in Los Angeles, Thomas F. McConnell made no payments to his former wife as he had agreed to do in the agreement of March 20, 1928. Plaintiff in her complaint alleges Thomas F. McConnell’s mother paid plaintiff sums aggregating $3,554.12 for which credit was given to him. The record further discloses that the income of Thomas F. McConnell after the divorce varied greatly. Some suggestion is made that he sometimes earned about $500 a month but subsequently for a considerable period he was unemployed and on relief.

December 27, 1933, John M. Grace, a resident of Cook county, Illinois, died and in his will Thomas F. McConnell was named as a legatee, as a result of which he received about $20,000. Henry Y. McGurren, a Chicago lawyer, was executor of Grace’s will and in the early part of 1935 before McConnell obtained the legacy, he engaged McGurren as his attorney to go to Los Angeles for the purpose of effecting a settlement of his obligations under the agreement of March 20, 1928, or the decree of divorce, with his former wife. McGurren went to Los Angeles and conferred with plaintiff, Mrs. McVeigh, regarding a settlement, she having theretofore instituted proceedings in California to have him extradited from Illinois because of his failure to support the children, etc. Mrs. McVeigh consulted her lawyer and certain public officials of Los Angeles whose duty it was to see that the children were taken care of, and the written agreement above mentioned, of March 18, 1935, was entered into between Mrs. McVeigh and her former husband who acted through his attorney, McGurren. The agreement referred to the divorce suit in California, stated that both parties had subsequently remarried, and continued, “Whereas the parties hereto did on or about the 20th day of March, 1928, make and enter into an agreement adjusting and settling their property rights, as well as their mutual rights of support and maintenance, which agreement was referred to and approved in the said Decrees of Divorce, and

“Whereas said agreement did establish a civil obligation on the party of the second part [Thomas] to pay to the party of the first part certain sums for the support and maintenance of said party and of the children of the parties hereto, and

“Whereas, the financial status of the party of the second part has materially changed since the execution of the said agreement, and considerable sums have accrued under the terms thereof,” and that both parties were desirous of settling all existing obligations between them and $1,250 was paid to Gladys in full of all existing obligations “either for her support or for the support of the minor children of the parties hereto, and said contract, insofar as it provides for the payment of any sums for the support of the party of the first part or the children of the parties hereto, is hereby cancelled.

“Second: It is distinctly understood and agreed that this contract shall in no way affect or relieve the party of the second part from his statutory obligation under the laws of the State of California to provide support for the children of the parties hereto; present custody of said children shall not be disturbed until further order of Court.”

There is evidence in the record and considerable argument of counsel as to what took place between Mc-Gurren, Mrs. McConnell, her attorney and the other parties in California at and prior to the time of the making of the agreement of March 18,1935. Mrs. McVeigh and her California attorney gave testimony to the effect that McGurren said his client, Thomas F. McConnell, was broke and had borrowed the money with which to make the settlement, while on the other side this is denied by McGurren and Mr. Oakley (connected with the City Attorney’s office of Los Angeles), who was present at the time, testified- that he did not recall any statement made by McGurren as testified to by Mrs. McVeigh and her counsel.

The master and chancellor both found there was no fraud practiced by McGurren in obtaining the settlement agreement. We might say, however, that after the case was pending in this court, Mrs. McVeigh had a verdict and judgment in her favor against McGurren in the District Court of the United States for the Northern District of Illinois, Eastern Division, for $12,500. This judgment was affirmed by the United States Circuit Court of Appeals for this, the seventh, Circuit, McVeigh v. McGurren, 117 F. (2d) 672. The basis of that judgment was that Mrs. McVeigh had been defrauded by McGurren in obtaining the California agreement. The verdict and judgment in that case was in favor of Mrs. McVeigh for $4,000 in her own right and for $8,500 in her favor as guardian of her two children. On the oral argument in the case at bar counsel for Mrs. McVeigh stated that judgment had been paid in full. The instant case was assigned to the Second Division of this court. The decision was there somewhat delayed, and to expedite matters, at the request of the Second Division we recently set aside the order assigning the case to the Second Division.

Many points are made by counsel for both sides in support of their respective positions, numerous authorities are cited, discussed and applied, but we think it unnecessary to discuss these further than to say that the provision for the support of the wife and the two minor children of the parties in the agreement entered into between them March 20, 1928, a few days after the divorce suit was instituted in California, became and was a part of the decrees entered by the California court. And counsel for all parties seem to agree that if the settlement agreement of March 20, 1928, became a part of the divorce, the California court, if application had been made, might change the award made for the wife and the children’s support. Counsel for plaintiff say that no such application having been made, the amounts awarded by that court should be allowed as a claim by the probate court of Cook county. In support of this counsel cite Black v. Black, 149 Cal. 224; Herrick v. Herrick, 319 Ill. 146; Walter v. Walter, 189 Ill. App. 345, and other cases.

In the Herrick case our Supreme Court said: “Section 18 of the Divorce act specifically provides that ‘ the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.’ Alimony does not arise from any business transaction but from the relation of marriage. It is not founded on contract but on the natural and legal duty of the husband to support the wife. ... In the instant case the agreements, which by the consent of the parties, and no doubt at the instance of appellant, were incorporated in the decree as a proper provision for alimony became merged in the decree when entered and thereupon lost their contractual nature, at least to the extent that the court has the power to change and modify the decree, upon the application of either party, when a change of circumstances justifies the modification. . . . . . Where there is a change in circumstances which upon principles of equity requires a change in the order for alimony there is no doubt of the power of the court to make the modification. (Cole v. Cole, 142 Ill. 19.) In making the change the court should take into consideration, as it apparently did in the case at bar, the property and income of the parties, their ages, health and social conditions, and whether there are children dependent upon one or both of them for support. ’ ’

We are of opinion that each of the four children should be treated alike in the disposition of their father’s estate now pending in the probate court of Cook county, Illinois. We know of no reason under the facts or under the law why this should not'be done. But if the decree in the instant case is carried out, the two younger children born of McConnell’s second marriage will receive a very small amount while most of the estate will go to the two older children. Thomas F. McConnell died intestate and the statute of descent in this State provides how his property should be divided. The fact that the decrees of divorce were entered in California ought not to prevent the chancellor in the instant case from doing equity between the parties. If the divorce had been entered in the courts of this county, under the law announced in the Herrick case above quoted from, we think it clear there would be no such difficulty, but on the contrary, the chancellor could decree what was just and equitable in view of all the facts in the record. We think this situation is not affected by the fact that the decree for the support of the children was entered in California.

As above stated, the master found there was no fraud or advantage taken of Gladys McVeigh in procuring the execution of the agreement of March 18, 1935, and his conclusions were approved by the chancellor. Upon a consideration of all the facts in the record, we are of opinion we would not be justified in disturbing such finding as being against the manifest weight of the evidence. Pasedach v. Auw, 364 Ill. 491; Phillips v. W. G. N., Inc., 307 Ill. App. 1, and cases there cited.

For the reasons stated, the decree of the superior court of Cook county is reversed and the cause remanded with directions to enter a decree in accordance with the views herein expressed.

Reversed and remanded with directions.

McSurely, P. J., concurs.

Hatchett, J., took no part.