text:
    Joseph Rosenberg, Appellee, v. D. H. Holmes, Appellant.
    Gen. No. 30,148.
    Landlord and tenant — giving of 5-day notice under Cahill’s St. eh. 80, 1f 8, as terminating obligation to pay rent. A landlord does not, merely by giving his tenant the 5-day notice provided for in Cahill’s St. ch. 80, 8, thereby terminate the lease so as to release the tenant from liability for the rent therein provided for, accruing thereafter.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Robert E. Gentzel, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed January 20, 1926.
    D. H. Holmes, pro se.

    Benjamin Rosenberg, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The plaintiff, Rosenberg, was the landlord and the defendant, Holmes, was the tenant of a certain apartment under a written lease between the parties. Under a power of attorney contained in that lease the plaintiff landlord secured judgment by confession against the defendant tenant for $290, being the rent for said apartment at $90 a month for the months of May, June and July, 1924. The written lease covered the period from November 19, 1923, to October, 1924. The judgment by confession was entered October 16, 1924. Within 30 days thereafter the defendant tenant made a motion in the municipal court to vacate the judgment and asked leave to file his appearance and defend the action which had been brought by the plaintiff, and in support of that motion the defendant submitted his affidavit alleging that he was not indebted to the plaintiff in any sum; that he had “vacated the premises not later than April 30, 1924, and that' all rent due or that could possibly be claimed as due for the use and rental of the premises up to that date has been paid in full”; that up to April the monthly rent had been paid regularly; that prior to and during that month the plaintiff had permitted conditions to exist which were set forth in detail in the affidavit and which became unbearable, and which were reported to the agent of the plaintiff landlord on a number of occasions, but no action was ever taken to remedy them; that plaintiff’s agents were advised that the April rent had not been paid in the hope that something would be done to better the conditions, but that no assurance was given that anything would be done; that the landlord’s agents posted a 5-day notice on the entrance door of the apartment occupied by the defendant, copy of which notice was presented to the court with the defendant’s, affidavit, the notice being dated April 25, 1924; that this notice was never thereafter canceled or withdrawn, but that the defendant understood by such notice and by the actions of the agents of the plaintiff that the plaintiff had decided to terminate the lease and did terminate it as of April 24; that the defendant vacated the apartment April 30, 1924, at which time the landlord took possession, and has remained in possession since. The notice attached to this affidavit of the defendant, submitted to the trial court in support of the defendant’s motion to vacate the judgment, advised the defendant that $90 Was due on the rent of his apartment and further, “that payment of said sum so due has been and is hereby demanded of you, and that unless payment thereof is made on or before the expiration of 5 days after date of service of this notice your lease to said premises will be terminated.”

The court entered an order denying the defendant’s motion to vacate the judgment and the defendant has perfected this appeal from that order.

Defendant contends that the plaintiff’s action in serving him with the so-called 5-day notice operated to terminate the lease, and when he took the plaintiff at his word and vacated the premises at the end of the 5 days, which was the time specified for such termination, and paid the plaintiff the amount which was due for the April rent, no liability could thereafter attach to him under the lease. In support of the contention the defendant relies on Wm. J. Lemp Brewing Co. v. Lonergan, 72 Ill. App. 223. The plaintiff contends that the later case of Jefferys v. Hart, 197 Ill. App. 514, holds the contrary. In our opinion, the latter case lays down the proper rule. Section 8 of our statute on Landlord, and Tenant [Cahill’s St. ch. 80, 8] provides, “That a landlord or his agent may, any time after rent is due, demand payment thereof and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than 5 days after service thereof, the lease will be terminated. If the tenant shall not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended, and sue for the possession under the statute in relation to forcible entry and detainer, or maintain ejectment without further notice or demand.” In Dickenson v. Petrie, 38 Ill. App. 155, the court said that the object of the notice provided for in the foregoing section was “to enforce payment of the rent due by threatening the termination of the tenancy and not the actual termination of it,” while the object of the notice prescribed in the following section, “is the termination of the tenancy and not the enforcement of payment.” Although that interpretation of these two sections of the statute was not followed in the Lemp case, it was the interpretation adopted by this court in Jefferys v. Hart, supra. We have again given careful consideration to these statutory provisions, and, in our opinion, the reasons given for tire interpretation of the language of section 8, supra, as set forth in the latter case, are sound and we adhere to the ruling there laid down. It follows that in our opinion the giving of a so-called 5-day notice, under the provisions of section 8, does not effect a termination of the lease and a tenant may not vacate the premises at the end of the 5-day period and thereby avoid further liability for the payment of rent under the lease. No claim is made that the conditions complained of were such as to amount to an eviction. Section 8 of the statute clearly contemplates that if the tenant fails to pay his. rent in compliance with the 5-day notice, the landlord shall then have the right to sue for possession, in either of the forms of action mentioned, and in so doing exercises the right the statute gives him, to consider the lease ended, and thus bring it to a termination. But until the landlord performs one of these acts the tenant may not escape further obligations under the lease, by himself electing to terminate it, and moving out.

For the reasons stated, the order of the municipal court is affirmed.

Order affirmed.

Taylor and O’Connor, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Thomson Mr. Justice Taylor

license: Public Domain

text:
    In re Estate of John G. Wilmes, Deceased. Claim of Martin Levy, Appellant, v. Helen Wilmes, Administratrix, Appellee.
    Gen. No. 30,230.
    1. Agency — revocation of agency By death. A contract creating a power or agency is terminated and the power or agency revoked by the death of either party to the contract, unless the power or agency created by the contract is coupled with an interest.

      2. Agency — prerequisites to existence of agency coupled with interest. To constitute a power or agency coupled with an interest sufficient to prevent the revocation thereof by the death of a party to the contract creating them, there must be vested in the person to whom the agency or power is given a property in the subject thereof so that he may deal with it in his own name, as distinguished from the proceeds or result of the exercise of the agency.
    3. Master and servant — termination of contract for services by death of master. Where a contract for services is so far mutual in its terms, express or implied, as to involve the obedience or following of directions by the employee and the giving of such directions or orders by the employer, the death of either party will terminate it.
    4. Master and servant — contradi of employment to run hotel as creating interest sufficient to prevent termination by death of employer. A contract whereby one was employed to manage a hotel for a year, for an agreed compensation per month including an allowance for room, laundry and pressing clothes, and at the end of the year a bonus of $1,000 if he “ran the hotel successfully,” held not to create a power or agency coupled with an interest such as would prevent termination of the contract and revocation of the agency upon the death of the employer before the expiration of the year.
    5. Damages — necessity for showing by wrongfully discharged employee of earnings during contract period following discharge. Where a claimant against an estate, seeking damages for his alleged wrongful discharge by the administratrix of his employer in violation of the terms of his contract of employment, failed to show what, if anything, he had been able to earn during the contract period following his discharge, a judgment disallowing his claim was proper.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed January 20, 1926.
    Adolph Marks, for appellant.
    Morris & Allen, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The deceased Wilmes was the proprietor of a hotel in the City of Chicago. On October 1, 1923, he employed the claimant Levy to manage the hotel for a year, Levy to receive as compensation for his services $175 a month, his room, laundry and the pressing of his clothes, and at the end of the year, a bonus of $1,000 if he “ran the hotel successfully.” Not long after this agreement was entered into, Wilmes died. Levy continued to manage the hotel until December 17, 1923, when he was discharged by the administratrix of the estate of Wilmes. Levy filed his claim against the estate in the probate court, for his salary up to the time of his discharge and from the time of his alleged wrongful discharge up' to the expiration of the year covered by his contract and for the alleged breach of the terms of the contract caused by the failure to furnish brm. his room and his laundry and pressing for that period, making a total of $2,222.84. The claim was allowed for $1,111.42 in the probate court (which was just one-half of the amount claimed) and on appeal to the circuit court, and a hearing de novo there, the claim was disallowed. The claimant seeks to reverse the latter judgment by this appeal.

The sole question presented for our determination is whether the death of Wilmes put an end to the contract. In our opinion the circuit court correctly held that it did.

It is conceded that a contract creating a power or agency is terminated and the power or agency is revoked by the death of either party to the contract, unless the power or agency created by the contract is coupled with an interest, but the claimant contends that the contract involved here created an agency in him, coupled with an interest, basing that contention on the theory that he was to receive a bonus, at the end of the contract period, amounting to $1,000 if he had run the business successfully, the argument being that, in this situation, the claimant would “naturally have an interest in the business ’ ’ to make it a success and profitable and thereby secure his. bonus. But that is not the kind of interest, which, coupled with a power or agency, will make the contract creating such power or agency irrevocable, as is shown by a number of authorities, some of which are called to our attention by the claimant himself. To constitute a power coupled with an interest, a property in the thing which is the subject of the agency or power, must be vested in the person to. whom the agency or power is given, so that he may deal with it in his own name, as distinguished from the proceeds or result of the exercise of the agency. 21 R. C. L. 824, §8; 2 C. J. 531, § 155; 1 Mechem on Agency, secs. 655, 656; Mansfield v. Mansfield, 6 Conn. 559; Supreme Assembly of Royal Soc. of Good Fellows v. Campbell, 17 R. I. 402, 408-410; McCallum v. Grier, 86 S. C. 162, 166; Homan v. Redick, 97 Neb. 299, 149 N. W. 782; Lacy v. Getman, 119 N. Y. 109; Gilbert v. Holmes, 64 Ill. 548. The rule is not otherwise where the compensation provided for in the contract includes a bonus in case of faithful or efficient service or if, instead of being on a salary basis, it is to be a percentage of the profits made on receipts acquired. Campbell v. Faxon, Horton & Gallagher, 73 Kan. 675, 85 Pac. 760; Kimmell v. Powers, 19 Okla. 339, 91 Pac. 687. In Homan v. Redick, supra, the court referred to Lacy v. Getman, 119 N. Y. 109, and the note to Mendenhall v. Davis, 52 Wash. 169, in 17 Am. & Eng. Ann. Cas. 179, holding that the death of a servant, under a contract for purely personal services, dissolves the contract, and that the death of the master has the same effect.

In 18 R. C. L. 513, § 24, the author points out that while “no doubt it is true, as a general rule, that death does not absolve a man from liability on his contracts,” but that on the contrary, “his obligations must be performed by his personal representatives, or their nonperformance compensated out of his estate,” it is also true that there is “an exception to this rule, equally well established at both the civil and common law, in the case of contracts the performance of which depends upon the continued existence of a certain person or thing. In this case a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance. The implication arises in spite of the unqualified character of the promissory words, because, from the nature of the contract, it is apparent that the parties contracted upon the basis of the continued existence of the particular person or chattel. The death then of the employer puts, an end to the contract of service and prevents any recovery thereunder for services performed after that event, though, of course, if the employee continues to render services he may recover for their actual value.” 25 Cyc. 985 is to the same general effect.

Williston, in his work on contracts, vol. Ill, § 1941, points out that “not only is the contract of an employee who binds himself for personal services discharged by physical inability, but it is generally said that death of the employer has the same effect.” The author says, however, that this rule is not a universal one and that “in contracts of employment, the nature of the employer’s undertaking should be considered in each case. If the character of the employment was such that the employer had free power to delegate the oversight of the work to another and no personal cooperation on his part is needed for the proper fulfillment of the contract, there seems no reason why his death should effect the continued obligation of the contract.” To the same effect, this author says, in section 1945, that “the fact that the promise of a surviving party to a bilateral contract is personal in character, will not discharge the promise of a deceased party which is not personal.”

The claimant relies chiefly on the decision of this court in Mecartney v. Carbine’s Estate, 108 Ill. App. 282, but in that case it was pointed out that under the contract there involved, “so far as. appears from the ¡record, the proper carrying out of the contract and the benefits to accrue therefrom to the respective parties were not dependent upon the continued existence of Mr. Carbine (the employer). If the life of Mr. Carbine was essential to the performance of the contract it was terminated by his death. ’ ’ There, no co-operation on the part of the employer was required or contemplated by the contract. Mecartney was free to proceed with the work he. agreed to do without directions or orders from his employer. This brings the case within the foregoing rule as given by Williston.

A valuable note on this subject, setting forth a considerable number of decisions in various jurisdictions, will be found appended to the case of Mendenhall v. Davis, supra, as it is reported in 21 L. R. A. (N. S.) 914. As in Babcock v. Goodrich, 3 How. Pr. N. S. (N. Y.) 52, there commented upon, so in the case at bar, “the business in reference to which it (the contract) was made, depended largely upon the reputation and personal management of both parties. ’ ’

Where a contract for services is so far mutual in its terms, express or implied, as to involve the obedience or following of directions by the employee and the giving of such directions or orders by the employer, we are of the opinion that the death of either party will terminate it. Where, to use the language of Williston, • the personal co-operation of the employer is needed for the proper fulfillment of the contract, or where the contract is such that the employer may co-operate with or direct the employee in the doing of the work covered by the contract, it will be terminated by the death of the employer, as well as by the death of the employee.

To turn to the facts presented in the case at bar, the work of conducting a hotel depends much upon the character and ability of both the proprietor and the one who may be employed by him to act as his manager. Nothing to the contrary being provided in the contract a proprietor may make with his manager, the proprietor will have the right to direct his manager as to the policy to be pursued and as to what he wants his manager to do or not to do in conducting the hotel, and the manager will be obliged to carry out such directions. The record shows that the deceased Wilmes was in ill health and he was about to go away on that account. He stated that “he did not know how long he would be gone, and he asked Mr. Levy to look after things during his absence, — he said ‘I may be gone a year or I might be back sooner and you take full charge of everything as heretofore. ’ ” If he had recovered his health and returned soon, as he apparently hoped he would, so far as the record shows, he would have had the right to direct his manager, in his conduct of the affairs of the hotel of which he was the proprietor. But instead of recovering, he got worse and died, whereupon the contract terminated.

There being involved in the contract mutual rights and obligations which were personal to the parties thereto, the death of Wilmes, the employer, or of Levy, the employee, would bring it to an end.

In any event, the claimant failed to make such a showing by his evidence, in our opinion, as would entitle him to a judgment in his favor, even assuming his discharge was wrongful, as he alleged, for he failed to show what, if anything, he had been able to earn during the contract period following his discharge. Doherty v. Schipper & Block, 250 Ill. 128.

For the reasons stated, the judgment of the circuit court is affirmed.

Judgment affirmed.

O’Connor, J., concurs.

Mr. Justice Taylor

specially concurring: I concur in the majority opinion that the judgment should be affirmed, but do not agree with the reasoning concerning the contract, being of the opinion that the rights of the plaintiff under the contract with Wilmes, the deceased, survived the latter’s death.


author: Mr. Justice O’Connor

text:
    George T. Hankel, trading as Ideal Book Bindery, Appellee, v. East & West Publishing Company, on appeal of Samuel M. Melamed, Garnishee, Appellant.
    Gen. No. 30,176.
    1. Corporations — nonissuance of stools certificates as precluding proof of payment of subscription. In garnishment proceedings against a stockholder of the defendant corporation wherein it was sought to fix liability upon the garnishee upon the ground that he was indebted to the defendant for the balance of his stock subscription, it was error to refuse to permit the garnishee to prove that the alleged balance had been paid, either by the garnishee or by other persons, on the ground that no certificate of stock had been issued on such subscription.
    2. Corporations — demand for payment as prerequisite to enforcement of payment in garnishment proceedings. Where the subscriber to the stock of a corporation to the value of $4,800 had paid $2,300 thereon, he could not escape garnishment of the balance of such obligation on the ground that no demand therefor had been made upon him pursuant to Cahill’s St. ch. 32, 32, such provision having reference only to stock subscriptions payable in instalments.
    Appeal by defendant from the Municipal Court of Chicago; the Hón. Theodore P. Sheer, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Reversed and remanded.
    Opinion filed January 20, 1926.
    Rehearing denied January 30, 1926.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel.
    William J. Sheridan, for appellee; Newman A. Du Mont, of counsel.
   Mr. Justice O’Connor

delivered the opinion, of the court.

George T. Hankel, doing business as Ideal Book Bindery, brought an action in contract in the municipal court of Chicago against the East and West Publishing Company, a corporation. There was a finding and judgment in plaintiff’s favor for $226. An execution was issued and the return of the bailiff shows that he was unable to find the defendant or any property belonging to it, and he therefore, returned the execution wholly unsatisfied. Afterwards, an affidavit for garnishee summons was filed in the same case, summons was issued and served on Samuel Melamed and others. He, together with the other garnishees, filed an answer setting up that they were not indebted to the defendant corporation. The answer was contested and the matter heard before the court without a jury. The court found against the garnishee Melamed for $226, judgment was entered on the finding and he appeals.

The record discloses that Melamed was a subscriber for 48 shares of the capital stock of the defendant corporation at par value of $4,800, of which he had paid but $2,300, and apparently Melamed was brought in as a garnishee on the theory that he owed the difference between $4,800 and the $2,300 or $2,500 to the corporation for his unpaid subscription. The evidence further tends tci show that about two months after the original papers were filed in the office of the secretary of state at Springfield, the charter of the defendant corporation was amended, apparently changing the number of shares and the par value of them, but the record is confused. Counsel for plaintiff says that the capital stock was increased by the amendment, but this is unimportant upon this appeal, because it is clear that the judgment against the garnishee must be reversed. During the trial the garnishee sought to prove, although his offer is considerably confused, that all of the stock of the corporation had been paid for in full; that the garnishee’s subscription of $4,800 had been paid into the corporation, part of it by the garnishee himself, Melamed, and the balance by other parties. The court refused to allow this proof to be made upon objection from plaintiff, apparently for the reason that stock certificates had not been issued by the corporation. We think this was error and upon a retrial of the case all evidence should be admitted tending to show that the corporation has received the $4,800, which the garnishee agreed to pay by his subscription of the stock, even if no certificate of the stock was ever issued.

Counsel for the garnishee contends that the record fails to show that an execution was issued and returned unsatisfied, and, therefore, the court was without jurisdiction to enter the judgment appealed from. The garnishment proceeding is but ancillary to the principal action — a continuation of it and the affidavit for garnishment summons was properly filed in that action. Dandridge v. Northern Trust Co., 218 Ill. App. 138; Senelick v. Mann, 239 Ill. App., post. As we said in the Dandridge case, where a garnishment proceeding is part and parcel of the cause in which the original judgment was obtained, the trial court should take judicial notice of all that transpired in the original cause, and, therefore, it was unnecessary to have the judgment, execution and return offered in evidence. We are still of the opinion that what we said in that case is sound. The garnishment proceedings being ancillary and but a part or continuation of the original action, the record in the original action, including the execution and its return, ought to be judicially noticed, but there seems to be some question about this proceeding as appears from the opinion of the Supreme Court rendered in the case of the LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill. 194. That case was in garnishment and the court said (p. 198): “All portions of the record in the original proceeding having a bearing on the question of the jurisdiction of the court in rendering a judgment are part of the record in the garnishee proceedings. (Dennison v. Taylor, 142 Ill. 45.) The execution issued and its return are not part of the common law record in the original proceeding, but they, together with the affidavit for the summons against the garnishee, are the means of acquiring jurisdiction in the garnishee proceedings, and are therefore a part of the record which must be shown to sustain a judgment against the garnishee.” So that upon a retrial of the case, we think that the execution and its return, together with the affidavit for the garnishee summons, should be offered in evidence and shown in a bill of exceptions in case a further review is sought. We suggest this only by way of precaution.

The garnishee further contends that in no event could he be held liable for the unpaid part of his stock subscription until a demand had been made upon him in accordance with the provisions of section 32, ch. 32, Cahill’s Statutes. We think this contention is unsound. That section has to do with the payment of stock subscriptions which are made payable in instalments. That has no application to the case before us.

For the error in refusing to1 receive evidence tending to show that the corporation had been paid the $4,800, the judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

Thomson, P. J., and Taylor, J., concur.


text:
    Charles A. Reinwald, Administrator of the Estate of Agnes E. Reinwald, Deceased, Plaintiff in Error, v. John D. McGregor, Defendant in Error.
    Gen. No. 30,252.
    1. Executions — right to issuance of capias ad satisfaciendum upon judgment in action of tort. Where a plaintiff has recovered a judgment in an action based upon tort, he may, upon request to the clerk of the court, have a writ of capias ad satisfaciendum, and whether malice was the gist of the action is immaterial so far as the issuance of the writ is concerned.
    2. Executions — mnaterialitg of question whether malice gist of action where capias ad satisfaciendum issued upon judgment. The question of malice or want of malice being the gist of an action of tort wherein* the judgment creditor procures the issuance of a writ -of capias ad satisfaciendum becomes material only when the judgment debtor, having been taken into custody under such writ, makes application under the Insolvent Debtors’ Act for his discharge.
    Error by plaintiff to the Circuit Court of Cook County; the Hon. Habby M. Fisher, Judge, presiding. Heard in the third division of
    this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed January 20, 1926.
    Morse Ives and Glennon, Cary, Walker & Murray, for plaintiff in error.
    Charles W. Stiefel and James I. Ennis, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this writ of error plaintiff seeks to reverse an order entered by the circuit court of Cook county quashing a writ of capias ad satisfaciendum.

The record discloses that plaintiff brought an action against the defendant to recover damages for the wrongful death of Agnes E. Reinwald, deceased, on the ground that the defendant drove his automobile so negligently in the City of Chicago that it struck and fatally injured Agnes E. Reinwald. The case was tried before a judge and a jury and there was a verdict in plaintiff’s favor for $3,000. The jury also answered in the negative the following interrogatory: “Was the defendant, Dr. John D. McGregor, guilty of wantonness and recklessness in driving and managing his automobile at the time of the accident?” The verdict was returned December 8,1922, and on the 16th day of the same month, defendant’s motion for a new trial was overruled and judgment entered on the verdict. . Thereupon the defendant prayed an appeal, which was allowed, upon filing a bond within thirty days and bill of exceptions within sixty days. The appeal appears not to have been perfected. On January 17,1923, a writ of capias ad satisfaciendum issued out of the office of the clerk of the court and was delivered to the sheriff of Cook county. The return of the sheriff shows that he executed the writ by arresting defendant on the 6th day of February, 1923; that the defendant failed to satisfy the writ or any part thereof, but before committing him to the common.jail of Cook county, the sheriff was commanded by a writ of habeas corpus, to take the body of the defendant before Judge Fisher, one of the judges of the circuit court of Cook county; that the sheriff did as commanded and afterwards the return further shows that McGregor was discharged in the habeas corpus proceeding and the writ was returned February 17, 1923, “no part satisfied.”

On March 13, 1923, Judge Fisher entered an order which recites that the matter came on to be heard on motion of the defendant to quash the capias ad satisfaciendum, based upon the judgment for $3,000 in favor of plaintiff and against the defendant. The order further recites that upon the trial of the case “there was submitted to the jury an interrogatory by the defendant, as to whether the defendant, John D. McGregor, was guilty of reckless, willful and wanton driving at the time of the accident to plaintiff’s intestate”; that the jury answered the interrogatory in the negative; “all of which appears from the face of the record in said cause * * * and it appearing to the court from the face of the record in the above entitled cause that the said capias ad satisfaciendum was wrongfully issued by the Clerk of the Circuit Court of Cook County.” It was ordered that the writ be quashed and it is to reverse this order that plaintiff prosecutes this writ of error.

It seems to be conceded by both parties that the order quashing the writ was entered, on the ground that it appeared from the face of the record that malice was not the gist of the action- in which the judgment was rendered against the defendant. And counsel for the defendant contend that since the jury found by their answer to the special interrogatory above quoted, that the defendant was not guilty of wantonness or recklessness in the driving of his automobile at the time of the accident, this conclusively determines that malice was not the gist of that action and that the finding of the jury on that question is res adjudicaba. Their position further as stated in their brief is that: “In a tort action where malice is not the gist of the action and is so apparent from the face of the record, a motion to quash the writ of capias ad satisfaciendum should be made before the court having jurisdiction of the parties and the subject matter” — “should be made in the forum out of which the writ issues.” In support of this proposition the cases of Kearns v. Chocolowski, 223 Ill. App. 117; In re Warnke’s Petition, 207 Ill. App. 462; Allen v. Roughan, 175 Ill. App. 380; In re Witzke’s Petition v. Greer, 195 Ill. App. 206; Hubbard-Zemurray Steamship Co. v. Crescio 179 Ill. App. 56; Manaster v. Kioebge, 257 Ill. 433, are cited. An examination of these cases discloses the fact that none of them, is in point. The question whether a writ of capias ad satisfaciendum might properly he issued on a judgment rendered in a tort case was in no way involved or considered, except possibly in the Crescio case, 179 Ill. App. 56.

In the Kearns case, a writ of error was prosecuted in this court which sought the reversal of an order of the superior court of Cook county, denying a motion to quash a body execution and release the defendant from the custody of the sheriff. In that case Kearns brought an action in tort against the defendant, who was served with summons. The declaration was filed, which charged inter alia that the defendant wantonly and wilfully drove an automobile so as to strike plaintiff. The defendant failed to appear and he was defaulted. The cause was reached for trial and a jury impaneled to assess plaintiff’s damages which they found to be $300. Judgment was entered on the verdict and afterwards a capias ad satisfaciendum was issued and served on the defendant. The defendant made a motion to quash the capias ad satisfaciendum which was denied. The court there referred to section 128 of the Practice Act (Cahill’s St. ch. 38, 780, probably intended), which provides that no person should be imprisoned for nonpayment of a judgment in any civil action except upon conviction by a jury, or when a jury trial is waived by a formal waiver in writing. The court cited the Monaster case, supra, and held that since the defendant was defaulted, there was no verdict of the jury within the meaning of section 128, and, therefore, the capias should have been quashed. It, therefore, clearly appears that the question of malice being the gist of the action was not in any way considered, because the decision turned on the provisions of section 128 of the Practice Act, which subsequently has been declared invalid. Sturges & Burn Mfg. Co. v. Pastel, 301 Ill. 253. The same holding was made in the Warnke case, supra, where it was held that an ex-edition against the body of a judgment debtor would not properly lie in the absence of a verdict of a jury. The proceeding in that case was under the Insolvent Debtor’s Act (Cahill’s St., ch. 72) in the county court. And it was there held that “where malice was the gist of the action in which the judgment was rendered, the judgment debtor cannot be discharged under the Insolvent Debtors’ Act.” But the question whether a writ of capias ad satisfaciendum might properly be issued in any tort case, and whether malice was or was not the gist of the action, was in no way involved or considered. The Allevn case was an application for a discharge under the insolvency law of the State where the defendant had been arrested on a body execution, issued on a judgment recovered in the municipal court of Chicago in an action for malicious and unlawful conversion of money. Although it was expressly found that malice was the gist of the municipal court action, yet the defendant was discharged by the county court. This was held to be error and it was further held that the county court had no jurisdiction to determine whether the capias had been .properly issued by the municipal court; that the proper place for testing that question was in the municipal court. It is also clear from this case that the question of the propriety of the issuance of a capias based on a tort judgment was not in the case, nor was there any language used by the court touching this question in any manner.

In the Greer case an application was made in the county court by a person who had been arrested under a body execution. The writ was based upon a judgment rendered in a trover action in the municipal court. The county court held that malice was the gist of the action and refused to release the defendant. On appeal to this court, it was held that malice was not the gist of the action in the municipal court, and, therefore, the county court should have released the defendant from arrest. Again it is clear that the question whether a capias might properly be issued, based upon a judgment rendered in a tort case, was in no way before the court or discussed.

The Grescio ease was a fourth-class action in the municipal court where plaintiff recovered a verdict and judgment for $126. The defendant sued out a writ of error from this court to reverse the judgment, and among other things he contended that the judgment was wrong “because the suit is in tort and the verdict and judgment are in tort, instead of in contract, thereby making the defendant subject to jail imprisonment, if he fails to pay the judgment.” In answering this contention the court said (p. 59): “There is nothing in the argument that the statement of claim and the judgment are in tort. If they were in tort that would not warrant imprisonment in jail for failure to pay the judgment as malice was not the gist of the action. First Nat. Bank of Flora v. Burkett, 101 Ill. 391.” The Burkett case there cited was a proceeding under the Insolvent Debtors’ Act and it was held in such case the judgment debtor might be released upon compliance with that act, if malice was not the gist of the action, and that is what the Appellate Court had in mind when it used the language quoted, because it cites the Burkett case as authority. The Manaster case, 257 Ill. 431, Was an action brought to recover $700. The defendant was served with* summons, but did not appear and he Was defaulted. A jury was impaneled to assess plaintiff’s damages. The damages were assessed at $450. Judgment was entered on the verdict, a capias then issued and defendant was taken into custody. A motion was made to quash the capias, which was denied and a writ of error was prosecuted to this court. Afterwards the case was transferred to the Supreme Court on the ground that the constitutionality of section 128 of the Practice Act was involved. The court there held that section 128 was not subject to the constitutional objections there made, and since there was no verdict within the meaning of that section, the capias was not properly issued. No language is used in the opinion which in any way might be considered as touching the question now under consideration.

From what we have said, it is clear that none of the cases relied upon by the defendant is in point. Whether malice is the gist of an action in which a capias ad satisfaciendum may issue is irrelevant and immaterial in determining the- question whether a capias may be issued on a tort judgment. The question of malice or want of malice being the gist of the action only becomes material when the judgment debtor has been taken into custody under a writ of capias ad satisfaciendum and makes application under the Insolvent Debtors ’ Act in the county court for his discharge, that court having exclusive jurisdiction of such matters. Sawyer v. Nelson, 44 Ill. App. 184; People v. Walker, 286 Ill. 541. Where a judgment is entered in a tort action, it is the duty of the clerk of the court in which the judgment is entered to issue a writ of capias ad satisfaciendum upon request. People v. Walker, supra; Marshall Field & Co. v. Freed, 269 Ill. 558; Schneider v. James, 228 Ill. App. 622 (Abst.); In re Petition of Fetz, post, p. 250; In re Petition of Brown, 237 Ill. App. 537. In the Walker case an original petition for a writ of mandamus was filed in the Supreme Court by which it was sought to command Judge Walker, a judge of the circuit court of Cook county to order the clerk of the circuit court to issue a writ of capias ad satisfaciendum. In that case Lena Mark recovered a judgment for1 $400 in an action of trespass for an assault and battery. The judgment remaining in full force and effect, plaintiff, pursuant to notice given the defendant, moved the court to enter an order directing the clerk to issue a. capias against the defendant. The motion was resisted on the ground that the writ could not be lawfully issued unless malice or an actual intention to commit a wrong had been proved against the defendant. And it was contended that no such proof had been made. The court refused on that ground to enter the order. Afterwards the original petition was filed in the clerk’s office of the Supreme Court. The petition was demurred to. The court there said that: “Sections 4 and 5 of chapter 77 of the Revised Statutes provide that the person in whose favor any judgment may be obtained may have execution thereon, in the usual form, against the lands and tenements, goods and chattels of the person against whom the judgment was obtained, or against his body when the same is authorized by law, but that no execution shall issue against the body except when the judgment shall have been obtained for a tort committed by the defendant * * *. Our constitution has abolished imprisonment for debt except for a refusal to deliver up property for the benefit of creditors or in cases where there is strong presumption of fraud. But this prohibition applies only to actions upon contracts, express or implied, and does not extend t& actions for torts. * * * The judgment against the defendant Schuhnan was for a tort, being for an assault and battery * * *. The statute provides that the plaintiff may have execution against the body of the defendant when the same is authorized by law but does not declare when the same is authorized by law, though it does except from the prohibition against such an execution, judgments obtained for a tort committed by the defendant, thus impliedly recognizing that in such cases an execution against the body is authorized by law. In case of all injuries accompanied by force the common law originally provided a process against the defendant’s person, subjecting him to imprisonment by the writ of capias ad respondendum, and upon judgment rendered authorized his imprisonment through the means of a capias ad satisfaciendum until satisfaction was made of the judgment. * * * His case comes under the head of injuries accompanied by force, in which the capias was clearly authorized by law. There was no necessity for an application to the court for an order directing the clerk to issue the writ, for the statute authorized it in the same terms as an execution against the defendant’s property. By force of the judgment it was the duty of the clerk to issue the writ upon the request of the plaintiff.” The writ of mandamus was denied because it was unnecessary. In that case the court further said (p. 543): “The question whether malice is the gist of the action is of no importance, so far as the issue of the writ is concerned. It is important where the defendant applies for his discharge under the insolvent laws. ’ ’ The court there-clearly held that a judgment creditor in a tort action, by virtue of the provisions of sections 4 and 5 of chapter 77 [Cahill’s St. ch. 77, ¶¶ 4, 5] was entitled to a writ of capias ad satisfaciendum upon request to the clerk of the court, and that the question of whether malice was the gist of the action was of no importance so far as the issuance of the writ was concerned. We think that case is precisely in point and it follows that the writ having been properly issued in the instant case, the court was in error in quashing it.

In the Field case plaintiff had judgment against the defendant where it was charged in the declaration that the defendant had procured from the plaintiff goods, wares and merchandise by means of fraud and deceit, and a writ of capias ad satisfaciendum was issued upon an order qf court and it was held that the writ was improperly quashed. The court there refers to sections 4 and 5 and also 62 of chapter 77 [Cahill’s St. ch. 77, Ti 63] of the Revised Statutes, and in referring to section 5, the court said (p. 561): 1 ‘ Section 5 of the same Act specifies the cases in which a capias may be issued. They are (1) where the judgment is obtained for a tort committed by the defendant; (2) where the defendant shall have been held to bail upon a writ of capias ad respondendum; (3) where he shall refuse to deliver up his estate for the benefit of his creditors.” The court said (p. 563): “Under section 5, if the judgment is for a tort committed by the defendant, an execution against the body is authorized without regard to whether the defendant has or has not property and without regard to whether he has refused to deliver his estate up for the benefit of his creditors. * * * (p. 564) The judgment was for a tort committed by the defendant, and appellant was entitled to the, writ, upon motion, without any showing in support of it.” In that case the principal question before the court was whether a judgment creditor in an action of tort who had an execution issued and returned nulla bona could afterwards take out a capias ad satisfaciendum and the court held that he could.

Under the authorities we are of the opinion that where plaintiff has recovered a judgment in an action based upon a tort, he may have, upon request to the clerk of the court, a writ of capias ad satisfaciendum, and whether malice was the gist of the action is immaterial so far as the issuance of the writ is concerned. We think that such a law which permits the judgment debtor to' be placed under arrest for failure to pay a judgment rendered in a tort case for ordinary negligence is, to use the language of the Supreme Court in the case of City of Chicago v. Tribune Co., 307 Ill. 595, “out of tune with the American spirit and has no place under American jurisprudence,” but to cure the defect in the law, application should be made to the legislature, the lawmaking body, and not to the courts.

The order of the circuit court quashing the writ of capias ad satisfaciendum is reversed.

Order, reversed.

Thomson, P. J., and Taylor, J., concur.


author: Mr. Justice Taylor

text:
    In re Petition of Gustave Fetz. Gustave Fetz, Appellant, v. The People of the State of Illinois, Appellee.
    Gen. No. 30,142.
    1. Highways and streets — sufficiency of declaration as charging malice. Where one count in the declaration in an action for injury to a pedestrian by an automobile alleged that the defendant wilfully, maliciously and wantonly drove his automobile, and another that he with force and arms, assaulted the plaintiff, each of such counts connotes malice as that term' is generally defined in connection with the interpretation of a statute.
    2. Executions — right to issuance of capias ad satisfaciendum upon judgment in action of tort. Where a plaintiff recovers judgment in an action of tort, the right to the issuance of a writ of capias ad satisfaciendum follows as a common-law incident.
    3. Executions — conclusiveness of judgment upon which capias ad satisfaciendum issued, on application for discharge of debtor. Upon an application under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, f 5, for the release of a judgment debtor taken under a writ of capias ad satisfaciendum issued under a judgment in an action for damages resulting from the negligent operation of an automobile, the judgment must be considered as res adjudicata that malice was the gist of the action, being charged in both of the counts of the declaration submitted to the jury.
    4. Executions — return of execution nulla bona as prerequisite to right to writ of capias ad satisfaciendum. It is not a prerequisite to the issuance of a writ of capias ad satisfaciendum upon a judgment in a tort action that execution be issued, demand made, and the writ be returned nulla bona.

    5. Executions — burden of proof whether maliee gist of action upon which capias ad satisfaciendum based, on application of debtor for discharge. Where a petitioner under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, 5, having been taken into custody upon a writ of Gapias ad satisfaciendum based upon a judgment against him in an action of tort, fails to show that malice was not the gist of the tort action, he is not entitled to the release prayed for.
    Appeal by plaintiff from the County Court of Cook county; the Hon. John D. Biggs, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed January 20, 1926.

      John H. Roser, for appellant.
    Ernest C. Reniff, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal by Gustave Fetz from a judgment in the county court denying his petition for a release under the Insolvent Debtors’ Act.

The record brought here shows that a stipulation was entered into before the judge of the county court, before whom the petition was filed, showing that certain facts constitute the “records and proceedings” in the circuit court in the case of Belle Dunn v. Gustave Fetz.

From that stipulation thei following appears: On August 15, 1922, a suit in trespass on the case, the ad, damnum being $25,000, was begun in the circuit court by Belle Dunn against the petitioner, Fetz. An original summons, an alias and two pluries summons were issued, and returned, not found. A third pluries, returnable to the May term 1923, was issued, and personally served on Fetz. On November 22, 1923, the plaintiff in that case, Belle Dunn, filed a declaration containing four counts. The first count charged that Fetz, on March 30, 1922, drove an automobile, which he owned, easterly on Lawrence avenue, and that, while the plaintiff was walking in a northerly direction along Lincoln street, and was in the exercise of due care, he operated it so carelessly that it ran into and struck and seriously injured her. Count number two charged, as the cause of action, a negligent failure to have the brakes in serviceable condition. The third count charged that Fetz wilfully, maliciously and wantonly drove the automobile. The fourth count charged that Fetz with force and arms assaulted the plaintiff, and with great force and violence drove his automobile to and against her against the peace of the People of the State of Illinois.

On November 22, 1923, the case was called for trial. The defendant filed neither appearance nor plea; nor did he appear personally. At no time in the course of the trial was he present personally or represented by counsel, nor was his counsel present in court. When the case was called for trial, the plaintiff withdrew counts one and two of the declaration. A jury was called in the box and sworn to assess the plaintiff’s damages. An order was entered as follows:

“This day comes the plaintiff and it appearing to the court that due personal service of process of summons issued in said cause had been had on the defendant for at least ten days before the first day of this term, and he being Row here three times solemnly called in open court comes not nor does any person for him, but herein makes default which is on motion of plaintiff’s attorney ordered to be taken, and the same is hereby entered herein of record.
“Wherefore the plaintiff ought to have and recover of and from the defendant her damages sustained herein by reason of the premises. Whereupon on motion of plaintiff’s attorney it is ordered that leave be and the same is hereby given plaintiff to withdraw the first and second counts of declaration filed in said cause.
‘ ‘ Thereupon reference is had to a jury to assess the plaintiff’s damages. Herein it is ordered that a jury come. Whereupon come the jurors of a jury of good and lawful men, * * * who being duly elected, tried and sworn well and truly to assess the plaintiff’s damages herein and a true assessment render according to the evidence after hearing all the evidence adduced say: ‘We, the jury find the defendant guilty and assess the plaintiff’s damages at the sum of Three Thousand Dollars ($3,000). Therefore, it is considered by the court that the plaintiff do have and recover of and from the defendant said damages of Three Thousand Dollars ($3,000) in form as aforesaid by the jury together with her costs and charges in this behalf expended and have execution therefor. ’ ’ ’

The verdict was returned in the following words: “We the jury, find the defendant guilty and assess plaintiff’s damages at the sum of $3,000,” and was entered of record by the court, and judgment given upon the verdict.

On April 1,1924, a capias ad satisfaciendum was issued against Fetz, and later returned, not found. An alias capias was issued, and on that Fetz on October 24,1924, was taken into custody by the sheriff. He was produced before the county court and on December 1, 1924, filed the petition which is here in question. On December 15, 1924, he filed a schedule of his assets. Arguments of counsel for and against the petition were heard by the judge of the county court, and an order entered dismissing the petition.

It is contended for the petitioner that the court erred in not discharging him on the ground that it was not shown that malice was the gist of the action in the circuit court. When the jury found Fetz guilty there were but two counts in the declaration, one of which charged that he wilfully, maliciously and wantonly drove his automobile, and the other that he, with force and arms, assaulted the plaintiff. Bach of those charges connotes malice as it is generally defined when making a legal interpretation of the word as used in such a statute as the one in* question.

In Seney v. Knight, 292 Ill. 206, the court said: “The term ‘malice’ as used in the Insolvent Debtors’ Act, applies to that class of wrongs which are inflicted with an evil intent, design or purpose.” Citing Jernherg v. Mix, 199 Ill. 254; Kellar v. Norton, 228 Ill. 356; In re Murphy, 109 Ill. 31; First Nat. Bank of Flora v. Burkett, 101 Ill. 391.

As said in Bromage v. Prosser, 4 Barn. & C. 247: “Malice in common acceptance means ill-will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse.”

As to the right of the plaintiff to the issuance of a capias, the court said in People v. Walker, 286 Ill. 541: “The statute provides that the plaintiff may have execution against the body of the defendant when the same is authorized by law, but does not declare when the same is authorized by law, though it does except from the prohibition against such an execution judgments obtained for a tort committed by the defendant, thus impliedly recognizing that in such cases an execution against the body is authorized by law.” Marshall Field & Co. v. Freed, 269 Ill. 558.

There is no doubt but that the tendency of the law has been for a long time against imprisonment for debt; so that in interpreting the common law on that subject as applicable to the rights of a judgment creditor, it is necessary generally to find some reason beyond mere indebtedness to justify the summary issuance of a capias. Perhaps that reason may be said to exist in the fact that in the case of a money judgment obtained in a tort case, the judgment represents an adjudication that without ordinary care, or wilfully or maliciously, the judgment debtor has done or refrained from doing something which the law especially disfavors, and that such conduct justifies as a reasonable penal consequence, giving the judgment creditor, in endeavoring to obtain satisfaction of his judgment, greater rights than exist in' ordinary cases. Of course the rigor of the common law, in this State, is very much lessened by the Insolvent Debtors’ Act (Cahill’s St. ch. 72) which provides for release where “malice” is not the gist of the action.

As the judgment recovered by the plaintiff in the damage suit in the instant case was in tort, and her right to a capias ad satisfaciendum followed, as Mr. Justice Dufln said in the Walker case, supra, “as a common-law incident,” and as, further, considering the allegations in the declaration in the damage suit, “wilfully, maliciously and wantonly” and “with force and arms assaulted,” it cannot be said that malice was not the gist of the action, the county court did not err in denying the petition for a release.

Counsel for the petitioner have cited a number of cases, based, in part, upon the Act of June 17, 1893, which undertook to provide for a trial by jury (except where waived) in all cases where a judgment might he satisfied by imprisonment; but in Sturges & Burn Mfg. Co. v. Pastel, 301 Ill. 253, that Act was held to he unconstitutional.

It is further contended that as the defendant was defaulted and a jury was then “duly elected, tried and sworn well and truly to assess the plaintiff’s damages * * * and a true assessment rendered according to the evidence,” and as, after hearing all the evidence adduced, brought in a verdict in the following words, “We the jury, find the defendant guilty and assess the plaintiff’s damages at the sum of $3,000,” the verdict finding the defendant guilty was improper, and the judgment based thereon, erroneous. That contention, however, seems to he based upon the assumption that the Act of 1893, supra, is still in force. Notwithstanding the criticism made of the proceedings in the trial court, as to the defendant being defaulted and as to the action of the jury, the judgment that was entered upon the verdict must nevertheless, here, be considered, under the law, as res adjudícala, and as based upon the two remaining counts of the declaration.

It is further contended that an execution must be issued, a demand made, and the writ returned nulla bona before a capias could issue. In the Walker case, supra, Mr. Justice Dunn said that at common law an execution against the body would issue in certain cases as a matter of course; that a capias is clearly authorized by law where the injury is accompanied by force and that no application to the court is necessary “for the statute authorized it in the same terms as an execution against the defendant’s property”; that “by force of the judgment” — apparently not necessarily following an execution and return nulla bona — “it was the duty of the clerk to issue the writ upon the request of the plaintiff.” In our judgment, therefore, the contention that not only an execution must first issue and a demand be made and the execution returned unsatisfied, and that then an order of court must be procured before a capias can be issued, is untenable. In re Brown’s Petition, 237 Ill. App. 537.

The petitioner having failed to show that malice was not the gist of the action, it follows that he was not entitled to be released under section 2 of the Insolvent Debtors’ Act. [Cahill’s St. ch. 72, ¶ 5.]

The judgment, therefore, will be affirmed.

Affirmed.

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


text:
    Bessie J. Newcomb, Appellee, v. George Eddy Newcomb, Appellant.
    Gen. No. 30,233.
    1. Negotiable instruments — sufficiency of plea in action upon note as plea of fraud. No fraud or deceit is charged in a special plea in an action upon a promissory note wherein it is alleged that the note was given in exchange for the interest of the plaintiff in her father’s estate, and the sole consideration for the note was the “representation, holding out, making believe and warranty of the said plaintiff of her interest in said estate, and her representation that it was of the value” of $5,000, when as a matter of fact the said interest was valueless and the estate insolvent.

      2. Negotiable instruments — evidence admissible touching alleged failure of consideration for note, where no fraud alleged. Wliere, in an action upon a promissory note given in exchange for the interest of the plaintiff in her father’s estate, there was no charge of fraud raised by the pleadings, no evidence was admissible ■ touching what was said by the parties prior to the exchange, such exchange constituting in and of itself a consummated and fully executed contract in writing.
    3. Contracts — worthlessness of agreed consideration for note as effecting failure of consideration. There was no legal failure of consideration for a promissory note given in exchange for an assignment of the payee’s interest in her father’s estate, although the estate turned out to be insolvent and the payee’s interest valueless.
    4. Negotiable instruments — admissibility of evidence of worthlessness of consideration for note, in absence of allegation of fraud. Where the pleadings in an action upon a promissory note given in exchange for an assignment of the plaintiff’s interest in her father’s estate raise no issue of fraud involved in an alleged failure of consideration due to the fact that the estate turned out to be insolvent and the plaintiff’s interest therein valueless, evidence as to the actual value or want of value of the assignment to defendant was incompetent because irrelevant to any issue in the case.
    Appeal by defendant from the County Court of Cook county; the Hon. J. G-. Van Keuken, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed January 20, 1926.
    Gustav E. Beerly, for appellant; Ellis S. Chesbrough, of counsel.
    John R. Nicholson, for appellee; John T. Chadwell, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal by the defendant, George Eddy Newcomb, from a judgment in the county court of Cook county in the sum of $942.72 in favor of the plaintiff, Bessie J. Newcomb.

The suit was begun on October 30, 1922, on three promissory notes, each dated October 21, 1910, and each for the sum of $250 with interest at 5 per cent per annum after maturity. They were admittedly all signed by the defendant, and payable to the plaintiff. They were given by the defendant, together with 19 others of like amount and a check for $250, to take the place of a $5,000 note which the defendant had given to her on October 21, 1907. The declaration set up the three notes, specially, and contained, also, the common counts.

The defendant filed a plea of the general issue, and, also, a special plea. The latter alleged that on October 21, 1907, the plaintiff sold to the defendant her pretended interest in the estate of George W. Newcomb, deceased, and pretended, held out, made, believe and warranted that her interest in the said estate was then of a substantial value, and worth not less than $5,000, and thereupon the defendant upon the sole consideration of the sale, representation, holding out, making believe and warranty of her interest in the estate and her representation that it was of the value of $5,000 as payment of the above-mentioned price, made and delivered to her, the plaintiff, his promissory note in the sum of $5,000, dated October 21,1907, payable 10 years after date, with interest at 5 per cent per annum; that on October 21, 1910, the plaintiff surrendered her $5,000 note and received from the defendant in lieu thereof, 19 notes, each for $250, all bearing date October 21, 1910, all without interest, and becoming due, one each year for the 19 succeeding years, the first being due on October 21, 1911; that at that time, October 21, 1910, the defendant paid to the plaintiff the sum of $250; that the $250 was given as part of the price, and the 19 notes “to secure payment of the balance of the residue” of the $5,000 note; that the interest of the plaintiff in the estate of George W. New-comb at the time of the sale, representation, holding out, making believe and warranty, as above-mentioned, was not of substantial value and was not worth $5,000, but was worthless; that the estate of George W. New-comb at the time of his death and ever afterwards had no value, and was and remains insolvent; that the pretended sale by the defendant to' the plaintiff was of no value to him; that although the estate was of no value and the plaintiff had no interest therein of any value, the defendant paid to her, after October 21,1907, from his individual funds, the sum of $2,500; that as the result of the foregoing, the consideration for which the notes were given has wholly failed. There was a replication traversing the special plea. The cause was tried before the court with a jury. It was stipulated that as there were three other cases pending which involved similar issues to this, like judgments should be entered therein as in this.

At the trial, the plaintiff offered in evidence the three $250 notes, numbers 8, 9 and 10, due respectively October 21,1918, October 21,1919 and October 21,1920, and testimony that the interest amounted to $192.74, making a total of principal and interest amounting to $942.72, and rested.

The defendant then introduced evidence, and proffered some evidence which was rejected, all in an effort, it was claimed, to prove the allegations of his special plea.

The evidence for the defendant which was admitted showed substantially the following: On April 3, 1901, George W. Newcomb died leaving a will. The will was filed and probated in the probate court of Cook county on April 11,1901. His son, the defendant, was named executor, without bond. The will made certain specific bequests of his children and certain other relatives. It directed that his estate should not be divided until after the payment of all the just debts and claims against his estate were paid and settled, or satisfactorily secured or adjusted. The executor was given full power to sell and convey, lease and encumber any or all of the real estate. Letters of administration were issued to the defendant. He took charge of the estate, filed annual accounts, and on April 8,1910, filed his final settlement account. The final account recites that there was, on April 8, 1910, a deficit due the executor of $26,271.05, of which $20,000 was secured by executor’s trust deeds and notes made under authority given by the will, and of which $6,271.05 was unsecured. In the final account, he asked that he be discharged and the estate declared settled. The probate court, on April 8,1910, approved the account, discharged the executor and declared the estate settled.

While the estate was in the course of probate, and after some negotiations between the defendant and the plaintiff, the plaintiff gave to him a written assignment of all her interest in her father’s estate, and on June 1,1907, gave to him, the defendant, a special warranty deed, and the defendant on October 21, 1907, in open court, gave to the plaintiff a note signed by him for $5,000, payable in 10 years, with interest at 5 per cent per annum.

After April 8, 1910, the date of the closing of the estate, and while the defendant was in default on the interest on the $5,000 note, and after some correspondence and talk between the defendant and the plaintiff, he took up his personal note of $5,000, and in its stead, on October 21, 1910, gave the plaintiff 19 notes, each signed by him personally, each for $250; and also gave to her, the plaintiff, the check for $250: On the check was indorsed the words, “This is accepted as part payment of principal of note of October 21, 1907.” That receipt was signed by the plaintiff. The $5,000 note contained the notation, signed by the plaintiff, “Paid, canceled and surrendered $4,750 balance by 19 notes November 9, 1910, as of October 21, 1910.”

The 19 notes were payable, one each year, for 19 consecutive years. The three notes here sued upon are those falling due in 1918, 1919 and 1920.

The chief question in the case is whether, under the issue made by the special plea, the defendant was entitled to introduce evidence in an effort to show, (1) that the $5,000 note was without consideration, and (2) that there was no consideration for the three notes sued upon. The special plea alleges that the plaintiff “sold” her interest in her father’s estate to him, the defendant, and that he gave to her the $5,000 note therefor; but it also alleges that the sole consideration was the “representation, holding out, making believe and warranty of the said plaintiff of her interest in said estate, and her representation that it was of the value” of $5,000, when as a matter of fact her interest was valueless, and the estate insolvent. No fraud is charged in the plea. It is charged that she pretended and made believe that her interest was worth $5,000, but it is not charged in any way that she had any knowledge to the contrary nor is it alleged that he did not know all about the value of her interest. The word “warranted” is used, but no facts are set up in the plea disclosing what was meant thereby.

It may be said at the outset, therefore, that as the issue was made by the pleadings, bearing in mind that the defendant alleged that the plaintiff sold her interest — and gave a written assignment and deed therefor to the defendant — and in consideration therefor the defendant gave to her, the plaintiff, the $5,000 note, and as no fraud was charged, no evidence was competent to show what was said between them prior to the exchange, which exchange constituted in and of itself a consummated and fully executed contract in writing. Then, too, the evidence introduced by the defendant showed the written assignment and deed and $5,000 note which were exchanged, and nowhere in the assignment or deed is it shown that the plaintiff made any representation as to the nature or quality or value of her interest in the estate. In our judgment, considering the issue of fact undertaken by the defendant in his special plea and the evidence he introduced, the written assignment and deed, evidencing a conveyance of her interest in the estate on the one hand, constituted the consideration given hy the plaintiff, and the $5,000 note on the other, was the consideration given by the defendant. But it is urged for the defendant that he was not allowed to show that the plaintiff gave no consideration; that the trial judge rejected his proffer to show that the estate was- insolvent and that in consequence the plaintiff’s assignment and deed were valueless. That argument seems to be based on a fallacy. As we have said, the conveyance of her interest by the written assignment and deed, in and by themselves, made the consideration, and when the defendant, as here, proved those facts, there being no- charge of fraud, he had exhausted his right; and had actually affirmatively proved what the consideration was and that there was no failure of consideration.

What was in reality the actual value of the assignment and deed was immaterial. It has been held over and over again that such and kindred papers may in and of themselves constitute sufficient consideration-to support a promise by the recipient. Kerney v. Gardner, 27 Ill. 162. The argument for the defendant is, in truth, not that he was- not allowed to show a failure of consideration, but that he was not allowed to show that what he got turned out to be unprofitable; because the consideration he actually received, i. e., the assignment and deed of her interest in the estate did not turn out to be worth as much as he thought they would.

If we assume that the interest of the plaintiff in the estate depended upon its solvency, and if we assume that the estate was actually insolvent, it does not follow that there was a failure of consideration. The defendant got what he contracted for, an assignment and conveyance of her interest, so that there was no legal failure of consideration.

The defendant cites Mann v. Smyser, 76 Ill. 365. That case only holds that the defendant was entitled to show that certain articles which had been promised him had never been delivered. There, a bill of sale which was given to the defendant mentioned certain articles, and the court held that the defendant could show he never got them all. In the instant case, there is no claim that the defendant did not get all he contracted for, all that the assignment and deed purported to give. Emphasis, also, is put on the language of Mr. Justice Catón in Morgan v. Fallenstein, 27 Ill. 31, but an examination of the case shows that the court merely announced that in a suit upon a note, failure of consideration might be shown by parol. That is the law, but, as we have said, the evidence in the instant case shows that the consideration was made up of the assignment and conveyance of her interest in the estate and those the defendant admits he received.

In the Kerney case, supra, which was a suit upon a note given for a deed conveying to the defendant all plaintiff’s interest in certain property, the court said:

“If he had been unwilling to risk such a title as appellee had, he should have refused to purchase, or he should have contracted for covenants of title, in the conveyance he was to receive.”

Similar law is set forth in Raymond v. Raymond, 64 Mass. 134. In that case, suit was brought upon a note which had been given for a special warranty deed. The defendant pleaded that the grantor had no title and no interest in the property and that there was a failure of consideration. In that case it was shown that the grantor did actually orally promise to pay certain notes which were a lien on the property, and yet, the court said:

“But the defendant neglected to guard against it, in the covenant in the deed of the plaintiff. He took a deed with covenants of a very limited character, and having thus taken certain express covenants of his vendor, he must be restricted to them, and cannot now engraft upon them the more extended engagement found in the verbal promise made at the time of executing the deed. A deed with a covenant of warranty against all persons claiming by, through, or under the grantor, cannot be thus extended to a general covenant of warranty against all persons. The misfortune of the defendant is, that he did not require more full covenants of warranty.”

Newton v. Clarke, 138 Ill. App. 196; Crowther v. Bell, 190 Ill. App. 48; Riley v. International Banana Food Co., 185 Ill. App. 629. The latter case shows clearly why, on the ground of irrelevancy, testimony, concerning what transpired prior to the exchange of the assignment and deed for the $5,000 note, was incompetent because it would tend to1 vary the terms of the written contract. Schneider v. Turner, 130 Ill. 28; Hagen v. Lehmann, 317 Ill. 227; Linn v. Clark, 295 Ill. 22; Simanovich v. Wood, 145 Mass. 180. If this were a proceeding in equity by the defendant on the ground of fraud, or a proceeding based upon consciously false representations, the proffered evidence might be admissible, as tending to show actionable deceit or fraud. Wigmore on Evidence, vol. 5, section 2439(a). As the issue, however, in the instant case, does not involve fraud or deceit, but pertains solely to the question of the failure of consideration, it follows that the evidence offered was incompetent. In our judgment, none of the proffered evidence which pertained to what was said and done prior to or contemporaneously with the exchange of the instruments was competent as tending to show a failure of consideration for the $5,000 note.

The judgment, therefore, will be affirmed.

Affirmed.

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


author: Mr. Presiding Justice Niehaus

text:
    James M. Weaver, Appellant, v. County of Menard, Appellee.
    Gen. No. 7,857.
    1. Appeal and ebbor — presumption as to right fulness of removal of county officer in suit for salary after removal. On appeal from a judgment adverse to the claim of a removed county superintendent of highways for salary alleged due for services as such officer from the date of his official removal to the date when his successor was appointed, the court will presume that the appellant was rightfully removed and for one of the causes mentioned in Cahill’s St. eh. 121, If 8, suhd. (c), where the stipulation of facts upon which the case was tried was silent as to the reason for such removal, and the legality thereof was not questioned upon the trial.
    2. Officers and public employees — right to salary after removal from office. An officer rightfully removed from office cannot recover any salary for performing the duties of such office after his removal.
    3. Officers and public employees — determination of rightfulness of removal as prerequisite to suit for compensation thereafter. Before one removed from public office may maintain a suit to recover salary for services as such officer following his removal, the question of the rightfulness of such removal must first be determined in a direct proceeding, i. e., by mandamus or quo warranto.

      4. Officers and public employees — ¡right of public officer removed for cause to hold over until successor appointed. Cahill’s St. ch. 121, If 8, subd. (b), providing that the term of office of a county superintendent of highways shall be “six years, and until his successor is duly appointed and qualified,” does not entitle an incumbent of such office, removed on one of the grounds stated in subd. (c) of that paragraph before the expiration of his term of six years, to continue to discharge the duties of the office until his successor is appointed.
    5. Officers and public employees — right of removed officer to expenses incurred in discharging duties of office after removal. A county superintendent of highways, removed. from office before the expiration of his term for one of the causes stated in Cahill’s St. ch. 121, If 8, subd. (c), has no legal claim against the county for salary for performing his duties of that office following his removal, nor for expenses incurred in the discharge of such duties.
    6. Officers and public employees — salary fixed for county superintendent of highways as covering disbursements for “traveling and other expenses.” Where at the time when county commissioners fixed the salary of a county superintendent of highways there was no warrant in law for the allowance to such officer of additional sums for expenses incurred in performing the duties of such office, the salary so fixed must be considered as intended to cover disbursements for “traveling and other expenses.”
    7. Statutes and resolutions — retroactive effect of statute authorizing allowance to county superintendent of highways for expenses incurred in discharge of duties. The amendment of the statute governing the compensation of county superintendents of highways made by Laws 1921, p. 780, authorizing an allowance for “traveling and other expenses” in addition to the salary fixed by the county board, cannot be considered as intended to have reference to officials in office prior to the effective date of such amendment, whose salaries were presumably fixed to include such expenses.
    Appeal by plaintiff from the Circuit Court of Menard county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed December 31, 1925.
    Thomas D. Masters and Walter T. Day, for appellant.
    E. G. King, State’s Attorney, for appellee; Thomas P. Reep, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

James M. Weaver, the appellant, commenced this suit in assumpsit in the circuit court of Menard county, to recover an amount of salary which he claims he is legally entitled to recover for performing the duties of the office of county superintendent of highways. The amount which he claims he is entitled to recover is for a period of time commencing June 19, 1923, when he was removed from office by the action of the county commissioners, to the date of the appointment of his successor. He also claims the right to recover for certain items of expenses, which, he alleges, were incurred by him in connection with the performance of his duties. It is admitted by the appellee that the sum of $103.12 was due the appellant, being the amount of salary which accrued to him from June 1 to June 19, 1923, the date of his discharge and removal from office. The case was tried by the court under a stipulation of facts. The court found that the appellant was not entitled to recover anything more than the $103.12 mentioned, and rendered judgment for that amount. This appeal is prosecuted from the judgment.

It appears from the stipulation that the appellant was appointed to the office of superintendent of highways by the County Commissioners of Menard County on the 22nd day of December, 1920, for a term of six years, and at a salary of $2,000 per year, payable quarterly; that he was officially removed and discharged from the office by the county commissioners on the 19th day of June, 1923, and the office was declared to be vacant; that appellant had been paid all the salary due him to June 1,1923, and that the salary which accrued to him from June 1 to June 19, the date of his discharge from office, amounts to $103.12; and that the appellant, after his discharge and removal from office, continued to perform the duties of the office until about the 1st day of August, 1924, when J. Colby Bookman was appointed and qualified as appellant’s successor. It also appears from the stipulation that the appellant is seeking to recover certain expenses, amounting in the aggregate to $1,170.41, which he alleges were incurred by him in connection with the performance of his duties as superintendent of highways. It appears from the stipulation that from June 19, 1923, the date of appellant’s official removal and discharge, to August 1, 1924, the date of the appointment of his successor, the services performed by the appellant were performed without the consent, authority, approval or recognition by the county commissioners ; that the appellant was not restored to the office from which he was removed; that certain expenses incurred by the appellant in the discharge of his duties as county superintendent of highways were paid to the appellant; but expenses paid are not included in the account of expenses sued for, and that the items of expenses which the appellee paid were paid previous to the date of the resolution of discharge and removal from office. The provision in the statute under which the county commissioners took action to remove the appellant is as follows: “Any county superintendent of highways may be removed from office in the manner provided by law, either by the county board of his county or by the Department of Public Works and Buildings, for incompetency, neglect of duties or malfeasance in office.” Cahill’s St. ch. 121, 8, subd. (c). The particular cause which actuated the commissioners to remove the appellant from office does not appear in the stipulation, but the legality of his removal is not questioned, and the inference to be drawn from the stipulation is that the county commissioners removed the appellant from office for one of the causes mentioned in the statute. We are justified in assuming, therefore, that the appellant was rightfully removed, and, if so, the appellant cannot recover in this action any salary for performing the duties of the office after Ms removal. It is well settled that persons discharged from public office, in a suit to recover salary which would have accrued to such persons, had they continued in office, must first have the question determined whether or not they were rightfully discharged ; and this question can only be determined by a direct proceeding, that is to say, by mandamus or quo warranto. Kenyon v. City of Chicago, 135 Ill. App. 227; City of Chicago v. Luthardt, 191 Ill. 516; Kipley v. Luthardt, 178 Ill. 525. But it is contended by the appellant that inasmuch as the act creating the office of county superintendent of highways provides, that “the term of office of each county superintendent of highways shall be six years, and until his successor is duly appointed and qualified” [Cahill’s St. ch. 121, [Í 8, subd. (b)], his removal from office did not become legally effective until the appointment and qualification of a successor to appellant; and that, therefore, the appellant, notwithstanding his removal and discharge from office, had the legal right to continue in the performance of the duties of the office after his removal and discharge, and until August 1, 1924, when Ms successor was appointed and qualified. We cannot agree with this contention. The provision referred to is undoubtedly intended to apply to a continuance in office by the incumbent after the expiration of the term for which he is appointed, or when the holding of the office comes to an end in due course of the administration of the office. It does not contemplate holding on after the removal for incompetency or malfeasance. To place such a construction upon the provision referred to would nullify that part of the act, at least to the extent of making the right and power to remove for incompetency or malfeasance in office dependent upon the ability of the commissioners to find and select a successor. Moreover, the statute makes express provision for a contingency such as was brought about by appellant’s removal. Subdivision (e) of paragraph 8 of the Act in question is as follows: “In case the office of county superintendent of highways in any county shall at any time be vacant, and a temporary emergency shall arise requiring that some duly qualified official perform the duties of said office, then the Department of Public Works and Buildings may designate any competent person to perform the duties of such office during the existence of such temporary emergency.” Taking this view, we are of opinion that the court did not err in disallowing appellant’s claim for salary after his term was ended by removal. It follows as a matter of course, and for the same reason, that appellant has no legal claim for expenses, which are alleged to have been incurred in connection with the performance of the duties of the office after his removal. z There are some expense items which were apparently incurred before appellant’s removal from office, but the disallowance of these items rests upon grounds equally conclusive against the appellant’s right of recovery. At the time the appellant was appointed county superintendent of highways, and the amount of his salary fixed by the county commissioners, there was no warrant in the law for the allowance of anything to the superintendent of highways for expenses incurred in the performance of the duties of his office. The right to claim “actual traveling and other expenses,” in addition to the salary fixed, came by amendment to the Act, which however did not go into effect until the year following the date of appellant’s appointment and the fixing of his salary. It must therefore be considered that at the time of fixing the amount of salary the county commissioners and the appellant, in accepting the amount of salary, necessarily must have taken into consideration the matter of his “traveling and other expenses” which he would incur in going around in the county in the performance of his duties; and the inference is clear that the amount of salary which was considered by appellant and the commissioners as a proper compensation for the performance of his duties as county highway superintendent included his “traveling and other expenses.” In Cook County v. Wren, 43 Ill. App. 388, the same principle involved in this case was under consideration and the language of the court in that case is pertinent to the 'present controversy.

The court points out that “the records of the hoard introduced in evidence show that for the period covered by the warrants, the compensation of Wren was fixed at $5 per day for actual service. Could he legally draw anything from the county over and above such fixed compensation for the performance of his duties as a county commissioner, even though in the performance of such duties personal expense was incurred, as for traveling expenses in visiting county institutions? * * * The law imposes on the county board the duty of erecting, maintaining and managing various county institutions, such as the poorhouse, insane asylum, etc., and one who takes the office of county commissioner is bound to know the location of these institutions, and that the management of them by the board of which he is a member will involve personal inspection of them by the commissioners, for the purpose of information, to the end that the action of the board may be intelligent and discreet. So far as the proper discharge of official duty in the management of county affairs and county institutions may require the commissioner to travel from one part of the county to another, or from his residence in one part of the county to a meeting of the board or a committee thereof in another part of the county, such acts, whatever the personal expense they entail, must be discharged without other recompense than is fixed by law for the performance of the duties of the office. He who takes the office takes it cum onere. * * * The compensation, being thus fixed in such terms by the board, is the same in effect as if the legislature had itself fixed it by statute, for the board only exercises a power conferred upon it by the legislature. If it had been so fixed by statute, it would be impossible to contend that mileage could be claimed in addition to the per diem named by the law as compensation for the personal discharge of the duties of the office. This exact point was decided by the Supreme Court of Pennsylvania in Albright v. Bedford County, 106 Pa. St. 582. * * * The contention by the commissioners was that they were entitled to demand from the county expenses incurred by them in traveling around the county in holding appeals in several townships and in visiting and examining county bridges. The claim included railroad fare, hire of conveyances, etc. The court in denying the claim said: ‘The unmistakable purpose’ (of the law) ‘is to fix the entire compensation which the commissioners can draw from the county treasury. * * * There is no provision for any other or different pay; no allowance for mileage, traveling expenses or boarding bills is prescribed. They derive their powers and authority as well as their compensation from the law. They can no more enlarge the one than the other. ’ ” In Dillon on Municipal Corporations, sec. 233, it is said that “it is a well-settled rule that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary.” Nor can the appellant justly claim a recovery for the alleged expenses under the amendment to the act which was subsequently passed. It cannot be considered that this amendment allowing expenses was intended to have had reference to officials in office whose salary was presumably fixed to include such expenses. In Jimison v. Adams County, 130 Ill. 558, it was held in reference to the question under consideration: “We regard the position of the appellant upon this question as wholly untenable, so far as it relates to the compensation of superintendents, who were in office when the amendatory act was passed, and whose compensation had been fixed before the passage of that act. * * * It is a general rule that a statute will be construed to be prospective, and not retroactive, in its operation, unless it clearly appears that the legislature intended it to have a retrospective effect. In the absence of a clear manifestation of legislative intent, statutes will be so construed as not to prejudice or affect past transactions. Thompson v. Alexander, 11 Ill. 54; Conway v. Cable, 37 Ill. 82; Knight v. Begole, 56 Ill. 122; In re Tuller’s Will, 79 Ill. 99. Before appellant went into office, the county board had fixed his compensation for each year of the four years of his term, and he had performed the duties of his office, for the compensation so fixed, for nearly three years before the amendments of 1885 were passed. Under the law as it existed prior to the passage of the amendments, the county of Adams had an arrangement for receiving the services of appellant for four years at $4 per day for 200 days of each year. Did the legislature intend, by those amendments, that the county should be charged with a greater sum than that fixed by its board and accepted by appellant? We think not. ’ ’

For the reasons stated the judgment is affirmed.

Affirmed.