text:
    Thomas J. Burns, Appellant, v. Wade Landrum et al., Appellees.
    1. Negotiable instruments — holders for value. An indorsee of a negotiable note secured by a trust deed, who received it before maturity as collateral in the usual course of trade, is a holder for value and takes it free from latent defenses existing in favor of the maker.
    2. Negotiable instruments — holder of note as collateral security for smaller debt. Indorsee of note as collateral security for a smaller debt due him from pledgor may collect entire sum due thereon, even though it is in excess of his demand.
    3. Negotiable instruments — defenses to note held by indorsee

      as collateral. If the maker of a note has a valid defense against the payee, a holder of the note as collateral for a smaller debt due from payee will only be allowed to recover the amount of the debt secured by the collateral, under Negotiable Instruments Act, sec. 27, Cahill’s St. ch. 98, If 47.
    4. Negotiable instruments — evidence of payments to payee in action "by indorsee. In action on note by indorsee, court erred in excluding evidence offered by defendants that they had made payment of part of the note to the payee, where there was an issue as to whether the note was held as a collateral for a smaller debt.
    5. Instructions — as to measure of proof. Where a defendant is making an affirmative defense, the court should not instruct jury that plaintiff is required by law to prove his case by more evidence, better evidence or greater weight of testimony.
    6. Negotiable instruments — holder in due course. If note was purchased and delivered before maturity but was not indorsed until after maturity, makers were entitled to credit for amount paid to the payee, under Cahill’s St. ch. 98, 12.
    Appeal by plaintiff from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    Dan McGlynn, for appellant.
    Beasley & Zulley, for appellees.
   Mr. Justice Barry

delivered the opinion of the court.

Appellees borrowed $1,700 and executed their note therefor to Henry T. Renshaw, trustee, and the same was secured by a mortgage on real estate. The note was dated April 23, 1920, was due in three years from date and bore interest at 6 per cent. In 1924, appellant sued on the note and averred that it was indorsed to him by the payee for a valuable consideration before maturity. In addition to the general issue appellees filed two special pleas. The first averred that Renshaw was appellant’s agent to receive payments on the note and that appellees paid him $500 on the principal on January 23, 1922. The second, that Renshaw delivered the note to plaintiff as collateral security for $1,000 loaned by plaintiff to Renshaw. The court sustained a demurrer to the latter plea and appellees then filed an additional plea in which they averred that they had paid $500 to Renshaw on the principal; that appellant received the note as collateral security for a certain note of $1,000 and that by reason of the premises appellant was only entitled to recover $1,000 and interest. Issues were joined and the trial resulted in a verdict and judgment for $1,260.56.

An indorsee of a negotiable note secured by a trust deed, who receives such note before maturity as collateral in the usual course of trade, is a holder for value and takes it free from latent defenses existing in favor of the maker. Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290; Elgin Nat. Bank v. Goecke, 295 Ill 403. If he holds the note as collateral security for a smaller debt due him from the pledgor he may collect the entire sum due thereon, even though it is in excess of his demand. It matters not to the maker how the pledgor and pledgee shall afterwards settle. Tooke v. Newman, 75 Ill. 215; Henderson v. Davisson, 157 Ill. 379. But if the maker has a valid defense to the residue of the note the holder will only be allowed to recover the amount of the debt secured by the collateral. Daniels, Neg. Inst., ¶ 832; Saylor v. Daniels, 37 Ill. 331; Germania Life Ins. Co. v. Koehler, 59 Ill. App. 592-595; Gammon v. Huse, 9 Ill. App. 557-563. Those rules are not in any way affected by section 27 of the Negotiable Instruments Act. [Cahill’s St. eh. 98, ¶ 47.] To give that statute the effect contended for by appellees would enable the maker of a note to escape liability for a large part thereof, even though he has no legal defense, simply because the holder has taken the note as collateral security for a smaller debt.

In the case at bar, if the judgment were allowed to stand, appellees would be relieved from liability for $700 and interest when they only claim to have paid $500, and the court has held that there was no proper proof as to that payment. The statute was never intended to work such an injustice..

When appellees filed their additional plea they evidently understood that the mere fact that appellant held the note as collateral for a $1,000 note would not relieve them from liability for any part of the note sued on. This is apparent because they averred they had paid Renshaw $500 on the principal, thereby attempting and intending to show that they had a defense to the residue of the note over and above the amount for which it was held as collateral security.

Appellees proved, over objection, that on January 28, 1922, they paid $500 on the note to Mr. Renshaw. That evidence was afterwards excluded on motion of appellant presumably on the ground that appellees failed to prove that Renshaw was the agent of appellant to receive payment. The evidence should not have been excluded. It was competent in case the jury should find that appellant held the note as collateral, but in that event appellant would have been entitled to recover $1,200 and interest.

With that evidence excluded appellees had no defense to any part of the note even though it were conceded that the note was held as collateral security. But there was a conflict in the evidence as to whether appellant had purchased the note or simply held it as collateral. By their additional plea appellees undertook to establish the fact that it was held as collateral and that they had a defense to the residue. The court excluded their evidence as to the defense of part payment. In that state of the record appellant was entitled to recover the full amount of the note. But the court instructed the jury, on behalf of appellees, •that if they believed from the evidence that the note was delivered to appellant as collateral security for a $1,000 note he was not entitled to recover more than that amount and interest. Even if the court had not excluded the evidence as to the payment of $500, appellant would have been entitled to recover $1,200 and interest. Those instructions were clearly erroneous.

The court also instructed the jury that appellant was required by law to prove his case by mere evidence, better evidence or greater weight of testimony before he could recover. Such an instruction should not be given where a defendant is making an affirmative defense because the jury may conclude that the plaintiff was bound to establish the negative of the special defense before he could recover. Rich v. Naffsiger, 248 Ill. 455; Stozky v. Robe, 189 Ill. App. 540; Cutter v. Pardridge, 182 Ill. App. 350.

Because of the fact that there must be a new trial we have refrained from expressing an opinion upon the merits. If appellant holds the note as collateral for the $1,000 note and interest and appellees paid $500 to Renshaw they should be allowed to show that fact even though Renshaw was not appellant’s agent. In such case appellant would be entitled to recover $1,200 and interest. If appellant purchased the note for value and the same was indorsed and delivered to him before maturity he would be entitled to recover the full amount. But if he purchased it and it was delivered to him before maturity but was not indorsed until after maturity, appellees would be entitled to credit for the $500 paid to Renshaw. Callaghan’s Ill. St. Ann. eh. 98, ft 12. Upon a retrial these questions should be submitted to the jury under proper instructions. The judgment is reversed and the cause remanded.

Reversed omd remanded.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
      Lloyd Lang, Appellee, v. W. F. Smith et al., Appellants.
    1. Appeal and erbob — necessity for brief. The Appellate Court may reverse cause pro forma where appellee has filed no brief.
    2. Equity — adequate remedy at law. If a party has an adequate remedy at law, equity will not take jurisdiction.
    3. Injunctions — restraint of execution. Injunction will not issue to restrain collection of a judgment and sale of property under execution, even where there has been no proper service of process, unless the judgment debtor shows that he has a good and valid defense to the claim of the judgment creditor.
    Appeal by defendants from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    A. R. Johnson, for appellants.
    E. L. Maher, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

On December 26, 1924, appellee filed a bill in the circuit court of Madison county against appellants, setting forth that on September 4th, 1924, appellee was summoned to appear before appellant Andrews, a justice of the peace of said county, on September 10 at 9 o’clock a. m.; that he, appellee, appeared at the hour and place named, and remained until 10:30; that appellant Smith, the plaintiff in said cause, failed to appear up to said hour of 10:30 a. m., and no one appeared for him, and that, no action being taken by said court up to said hour of 10:30, appellee departed “believing and knowing that said cause was discontinued and of no avail upon said summons”; that thereafter an execution in the hands of appellant Fisher, issued from said justice court, was levied on an automobile belonging to appellee, of the value of $500. Said bill further charges that said justice of the peace was without jurisdiction to enter a judgment against appellee, and that said judgment was null and void; that appellant Fisher, constable as aforesaid, was threatening to and would sell said automobile unless restrained by injunction, and prays that said levy be restrained and that said judgment be held null and . void.

A temporary injunction was issued, restraining the collection of said judgment and the sale of said automobile, as prayed. Thereupon a motion was made by appellants for a dissolution of said temporary injunction, for the reason that no ground for equitable relief was disclosed by said bill. Upon hearing, said motion was denied.

No brief was filed on behalf of appellee, and we would be warranted in reversing said cause pro forma, but have deemed it best to consider the case on the merits.

It is first contended by appellants, for a reversal of said order or decree, that inasmuch as six months had not expired at the time appellee learned of the rendition of the judgment in question by appellant, justice of the peace, appellee’s remedy, if any, was by certiorari proceedings. The law clearly is that if a party has an adequate remedy at law, equity will not take jurisdiction. There is, however, some question as to whether or not the Act of April 1, 1872, which provided for certiorari proceedings in the circuit court to reverse judgments rendered by justices of the peace, where twenty days had expired and within six months from the rendition of such judgment, has been repealed by implication. In our view of the case, it is not necessary for us to pass on this contention.

The main ground relied on by appellants for a reversal of said order or decree is that said bill of complaint nowhere alleges that appellee has a good and valid defense to the claim of appellant Smith, and that without such allegation his bill is wholly inadequate to warrant the relief prayed. We are of the opinion and hold that this contention is well taken. It has been repeatedly held by the Supreme and Appellate Courts of this State that a court of equity will not enjoin a judgment at law unless it clearly appears from the allegations of the bill that the complainant therein has a meritorious defense; in other words, that if a trial on the merits be had, a different result would be obtained from that already adjudged. Colson v. Leitch, 110 Ill. 504-508; Telford v. Brinkerhoff, 163 Ill. 439; Reed v. New York Nat. Exchange Bank, 230 Ill. 50-53; Cadillac Automobile Co. v. Boynton, 240 Ill. 171-172; Van Gilder v. Ringer, 163 Ill. App. 105; Curran v. Good, 204 Ill. App. 236; Adams & Pigott Co. v. Allen, 228 Ill. App. 230-235.

In Reed v. New York Nat. Exchange Bank supra, the court at page 53 in discussing this question says: “It is the well-settled rule of law in this State that courts of equity will not interfere to prevent the collection of a judgment, even though the judgment was rendered without service of process, unless a meritorious defense be shown. (Colson v. Leitch, 110 Ill. 504.) It would be useless to set aside a judgment at law unless it is shown that there would be a different result upon another trial. (Colson v. Leitch, supra; Telford v. Brinkerhoff, 163 Ill. 439.) It is not sufficient that a judgment is illegal, but it must be unjust before equity will interfere. A showing in the bill for injunction that the judgment in question was obtained without process does not show, nor tend to show, that, if process had been served and a defense interposed, the result of the suit would have been different. ’ ’

The bill in this case is so manifestly insufficient, in that it wholly fails to allege even inferentially that appellee has a defense on the merits to the claim of appellant Smith, sued on before said justice of the peace, that under the foregoing authorities it is not necessary to further discuss the same. Inasmuch as the only relief prayed for in said bill is for injunction, the decree of the circuit court will be reversed and the cause will be remanded, with directions to dissolve said temporary injunction and to dismiss said bill for want of equity.

Reversed and remanded, with directions.


text:
    Grace Gilbert, Appellee, v. A. Goralnik, Appellant.
    1. Negligence — proximate cause — as affected by independent act of third person. If negligence does nothing more than furnish a condition by which injury is made possible and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury.
    2. Highways and streets — proximate cause collision of automobiles. Negligence of defendant in stopping car on bridge held not proximate cause of striking of plaintiff’s car by a third car.
    Appeal by defendant from the City Court of Bast St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court
    at the March term, 1925.
    Reversed.
    Opinion filed August 5, 1925.
    Keefe & Miller, for appellant.
    Farthing & Farthing, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was instituted by appellee against appellant in the city court of East St. Louis for the recovery of damages sustained by appellee in a collision between the car in which she was riding and a car owned by appellant.

The declaration consists of one count, and alleges among other things that appellant so negligently and improperly drove and managed his automobile that by reason of such negligence, mismanagement and unskilfulness on the part of appellant, the automobile of appellee collided with the automobile of the appellant, resulting in the injuries to appellee for which suit was brought. A plea of the general issue was filed to said declaration, and a trial was had, resulting in a verdict and judgment in favor of appellee for the sum of $325 and costs. To reverse said judgment this appeal is prosecuted.

It is first contended by appellant for a reversal of said judgment that the court erred in denying the motions made by appellant, at the close of appellee’s evidence and again at the close of all the evidence, to exclude the evidence and to direct a verdict in favor of appellant.

The evidence discloses that appellant, while driving on the Municipal Bridge from East St. Louis, Illinois, to St. Louis, Missouri, brought his car to a stop on the north side of the driveway of the bridge, near the curb. He got out of his car on the right-hand side, passed around to the left-hand side of the same, and was standing near the front end of his car when appellee, who was driving in the same direction, was run into by a Hudson car which struck the hub of the left front wheel of appellee’s car, causing it to turn suddenly to the right and collide with the car of appellant. Appellee was thrown against the windshield of her car, and sustained certain cuts on her face and arms and bruises on her body. Appellant was thrown to the floor of said bridge and was rendered unconscious for a short time. .

Up to this point, the evidence as to what occurred is virtually the same on the part of appellee and of appellant. Practically the only conflict in the evidence is as to what appellant was doing just prior to the time appellee ran into his car. Appellee and two witnesses in her behalf testified that, just prior to said collision, appellant was standing on the south side of his automobile with one foot on the running board, and appeared to be resting, or, at least, was doing nothing so far as they could observe.

On the other hand, appellant testified that when he “came to the middle of the bridge, my machine lost its power — it started to make a noise in front — * * * kind of a spitting noise, and it lost pretty nearly all its power. So I stopped it near the curb and opened the right door of my machine. I went out and went around and opened the hood. I looked in there and there is a pipe that comes from the intake, it gives gas to the generator; that little pipe was loose. * * * I put the little pipe back and put the hood down again. I hooked it down on one side and while I was trying to hook it on the other side, I was knocked off; a machine struck my machine right in the back and that knocked me off.”

Appellee further testified that at the time of the accident and just prior thereto, she was driving about 15 miles per hour. She is corroborated as to the speed of her car by the other witnesses who testified in reference thereto. She further testified: “When I first saw Goralnik’s car it was standing still; that was about a block away. He was on the traffic side leaning up against his machine. My car was far enough away from the curb at that time, a block away, so that it would not have been necessary for me to turn to go around his car; continuing in a straight line, I would have cleared it. I did not see the blue car, the Hudson, until it hit me. Mr. Goralnik’s car did not run into mine — the Hudson car knocked me and I ran into Goralnik’s. * * * I do not know what prompted him to stop on the Free Bridge; he was standing up in a position as if resting, leaning up against his car with his elbows on it; he was at rest, I guess — I don’t know.”

One of the witnesses who testified on behalf of appellee testified to the effect that the Hudson car, just prior to and at the time it attempted to pass appellee’s car, was running at a speed of about 40 miles per hour. The witness, George Howell, on behalf of appellee, testified: “"When I first saw the cars the Gilbert car was east of the Goralnik car and I was west of it; and when the blue car came in contact with Mrs. Gilbert’s car it was about 2 feet or 2% feet east of Goralnik’s car. At that point on that day there could have been three cars abreast there without touching. * * * There was room for Mrs. Gilbert to have passed without striking any other car, the way the circumstances were at that time, excepting for the blue car.”

It would therefore seem to follow as a matter of law that the stopping of appellant’s car on said bridge was not the proximate cause of said collision and appellee’s injury.

In Yunkes v. Latrobe Steel & Coupler Co., 131 Ill. App. 292, the court at page 295, referring to and quoting from Braun v. Craven, 175 Ill. 401, says:

“In the above case it is held, at page 405, that 'damages which are recoverable for negligence must be such as are the natural and reasonable results of defendant’s acts, and the consequences must be such as, in the ordinary course of things, would follow from the acts and could be reasonably anticipated as a result thereof. * * * Remote damages are such as are the unusual and unexpected result, not reasonably to be anticipated from an accident or unusual combination of circumstances, a result beyond and over which the negligent party has no control. The law regards only the direct and proximate results of negligence as creating a liability against the defendant.’ ”

Anri in Hartnett v. Boston Store of Chicago, 265 Ill. 331, being an action on the case brought by Mary Hartnett against the Boston Store to recover damages alleged to have resulted from the violation of an ordinance of the City of Chicago which forbids the sale of firearms to minors, the court at pages 333, 334, says:

“There are three essential elements in actionable negligence: First, a duty imposed by law to exercise care in favor of the person for whose benefit the duty is imposed; second, the failure to perform that duty; and third, a consequent injury so connected with the failure to perform the duty that the failure is the proximate cause of the injury. What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which might result from his act.”

If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury. (Cooley on Torts, 3d ed., p. 99; Chicago Hair & Bristle Co. v. Mueller, 203 Ill. 558; Seith v. Commonwealth Electric Co., 241 Ill. 252; Hartnett v. Boston Store of Chicago, supra.) To the same effect is Seith v. Commonwealth Electric Co., supra, and Illinois Cent. R. Co. v. Siler, 229 Ill. 394. In the latter case, the court, through Mr. Justice Dunn, says:

“Whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious consequence could not have happened, then such injurious consequences must be deemed too remote to constitute the basis of the cause of action.”

We are of the opinion and hold that the striking of appellee’s car by'the driver of said Hudson car was an independent cause bringing about said collision, which had no logical connection with the stopping by appellant of his car at the place in question, and that the trial court should have directed a verdict for appellant, and the failure so to do was error.

Other errors were assigned on the record, but in our view of the case it will not be necessary for us to pass upon the same.

For the reasons above set forth, the judgment of the trial court will be reversed.

Judgment reversed.


text:
    Mary J. Villier, Appellee, v. American National Insurance Company, Appellant.
    1. Insurance — what constitutes delivery. If life policy is that called for in application, its issuance and the forwarding of it to insurer’s agent for delivery to applicant causes it to become a binding contract, but there is no binding contract where the policy is different from that applied for, and is issued and forwarded subject to its acceptance and approval.
    2. Insurance — construction of policy. Where provisions of an insurance policy are not uncertain or ambiguous, the principles applicable to their interpretation and construction do not differ from those which govern other contracts.
    Appeal by defendant from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the March term, 1925.
    Opinion filed August 5, 1925.
    Reversed and remanded.
    T. M. Webb, for appellant.
    Kevin Kane, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

An action in assumpsit was instituted in the city-court of East St. Louis by appellee against appellant to recover $2,500, the amount of an insurance policy alleged to have been applied for by one Charles E. Villier, now deceased, and in which policy appellee was named as beneficiary.

The declaration consisted of the common counts and one special count. The special count averred, among other things, that the said “Charles E. Villier applied for a policy of life insurance in the sum of $2,500.00: that he paid $5.00 on the premium at the time of the making of said application; that he designated appellee as his beneficiary; that subsequent to the making of said application, on, to-wit, the 15th day of January, 1924, appellant presented said policy to appellee but refused to deliver the same to her, although she tendered the balance due on said premium, the same being refused; that on or about the 13th day of January, 1924, the said Villier departed this life.”

To said declaration appellant filed a plea of the general issue and two special pleas. The first special plea was a plea of tender of the $5 which had been paid on said premium as above set forth. The second special plea averred that the application signed by Villier called for an ordinary fife policy for $2,300, with a “new disability clause,” and for extended insurance, and provided for the payment of a premium of $10.12 to be paid quarterly; that this form of policy could not be issued by appellant company at the date of said application; that said application provided among other things that the applicant’s acceptance of the policy issued on his application, whether or not in the form applied for, should constitute a ratification of any change in the form of the policy, or any corrections or additions to the application made by appellant company in the space headed “Home Office Corrections or Additions,” and that a photographic copy thereof should be sufficient notice to the applicant of said change in form of policy from that applied for; that in accordance therewith appellant company amended the application, making it call for an “ordinary life special class A policy”; that it issued an ordinary life special class A policy in the sum of $2,500, providing for the payment of a premium of $11.93 quarterly, which said policy did not contain the disability clause called for by said application before amendment; that said policy and amended application were forwarded to appellant’s superintendent at Bast St. Louis to be delivered to the said Charles E. Villier upon his approval, acceptance and signing of said amendment to said application; that on January 14, 1924, appellant caused said amended application and policy to be taken to the home of Villier for the purpose of obtaining his approval of said amended application and his approval of said policy; that Charles E. Villier, on January 12, 1924, being prior thereto, had departed this life, and that by reason of the fact that appellant could not obtain the approval of said amendment to said application, it was under no legal obligation to deliver said policy of insurance to appellee.

To said special plea appellee filed general replications, denying the material averments of said pleas. A trial was had, resulting in a verdict and judgment in favor of appellee for the sum of $2,500. To reverse said judgment this appeal is prosecuted.

Practically the only point at issue in this case is as to whether or not the application signed by Charles E. Villier called for a policy of insurance in the sum of $2,500 without the new disability clause, as contended for by appellee, or whether said application was for a policy for $2,300 with the disability clause, as contended for by appellant. The policy issued by appellant company was admitted in evidence, and was for the sum of $2,500 with quarterly premium payments of $11.93, and was in the form of an ordinary life policy without any disability clause.

If the application signed by Villier called for a policy such as was offered in evidence, then upon the issuance of the same by appellant company and the forwarding of it to its agent at Bast St. Louis for delivery to Villier, it became a binding contract of insurance, and appellee would be entitled to recover. (Rose v. Mutual Life Ins. Co., 240 Ill. 45-51.) If, on the other hand, the policy applied for was for $2,300 with the payment of quarterly premiums of $10.12 with a provision for a disability clause, as contended for by appellant, and if appellant, as it contends, was not at the time empowered to issue a policy of that character, and amended said application as above stated so as to call for an ordinary life policy for $2,500 without the new disability clause, then there was no binding contract of insurance and there was and is no right of recovery on the part of appellee. (See Covenant Mut. Ben. Ass’n of Illinois v. Conway, 10 Ill. App. 348-353; Palmer v. Bull Dog Auto Ins. Ass’n, 294 Ill. 287-292; Rowland v. Springfield Fire and Marine Ins. Co., 18 Ill. App. 601; Ellis v. State Mut. Life Assur. Co., 206 Ill. App. 226; Daniels Motor Sales Co. v. New York Life Ins. Co., 220 Ill. App. 83; Steinsultz v. Illinois Bankers Life Ass’n, 229 Ill. App. 199.)

That this statement of the law is correct is practically conceded by counsel representing appellee on page 5 of his printed argument, wherein he says:

“True it is, as appellant contends, if the application for insurance was in an amount of twenty-three hundred (2300.00) dollars and appellant wrote a policy for twenty-five hundred (2500.00) dollars, no one in this day and age would assert or argue that there was a meeting of minds and that a contract resulted. The policy, then, under such a state of facts, could .only be construed as an offer or counter proposition and the insured would have to accept it in order to complete the contract.”

Appellee testified that she was present when the application was signed by her son, Charles E. Villier, but that she did not read the application and did not know what was in it; that she heard it read to her son and heard them talking about a $500 policy; later on, on direct examination, she stated that she meant a $2,500 policy. Appellee was later recalled and further testified that in the application signed by her son the figure $2,300 did not appear, but that the amount of $2,500 did appear on said application. Julia Villier, a daughter of appellee and a sister of Charles E. Villier, testified that the amount of the application was $2,500. No other witness on the part of appellee testified as to the terms of the application.

On the part of appellant, its secretary testified that said application was for a policy of $2,300; that the rules of the company did not provide for issuing a policy in that amount, and that the application was amended to provide for a policy of $2,500. A. J. Hadley, one of the officers of said company, testified that he examined said application and that it called for a policy of $2,300; that the company issued a policy for $2,500 instead of $2,300, as it was not issuing policies for the latter amount, and that no disability clause was contained in said policy. W. B. Bodeen testified that he was superintendent of appellant company with his office in East St. Louis; that under the heading of “Home Office Corrections and Additions,” said application was amended, making the amount of policy $2,500, with quarterly premiums of $11.93, and that this was not in the application when he forwarded it to appellant company. Said witness also testified that the application signed by Villier called for an ordinary life with new disability clause form of policy.

The application offered in evidence discloses the apparent amendment as contended for by appellant, and the documentary evidence seems to bear out its ' contention with reference to the character of application made by Villier and its amendment, as contended for by appellant. While there is a conflict in the oral testimony as to the amount of insurance applied for by Villier, there is no conflict in the evidence to the effect that the policy issued by appellant company did not contain a disability clause, and that such clause was called for in the application signed by Villier. Neither is there any conflict in the evidence to the effect that said application was not accepted in the form submitted, but was amended as above stated.

It therefore follows as a matter of law that before a binding contract of insurance could exist, Villier must have accepted and approved the amendment made in said application. Having died before the policy and amended application were presented to him for approval, it could not be ratified, and appellant was therefore under no obligation to deliver said policy and there could be no right of recovery on the part of appellee. Where the provisions of an insurance policy, as here, are not uncertain or ambiguous, the principles applicable to their interpretation and construction do not differ from those which govern other contracts. (Cottingham v. National Mut. Church Ins. Co., 290 Ill. 26; Old Colony Life Ins. Co. v. Hickman, 315 Ill. 304-311.)

For the reasons above set forth the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Barnes

text:
    Gregory T. Van Meter, Administrator, Appellee, v. Hartford Accident and Indemnity Company, Appellant.
    Gen. No. 29,785.
    1. Workmen’s compensation — death of injured employee as affecting settlement. Workmen’s Compensation Act, sec. 21, Cahill’s St. ch. 48, 1f 221, extinguishing right to compensation on death of injured employee, applies where there has been a settlement agreement approved by the Commission.
    2. Workmen’s compensation — death of injured employee as terminating compensation under agreement. If approval of Commission to mutual agreement for waiver of provisions of the Workmen’s Compensation Act took the contract from under section 21, Cahill’s St. ch. 48, f 221, providing that right to receive compensation is extinguished by death of the employee, such a settlement would be illegal as against public policy.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Path, B. Latjher, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed.
    Opinion filed October 6, 1925.
    Moloney & Postelnek, for appellant.
    Soelke, Johnson & Koehn, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This suit is brought by the administrator of the estate of John Wahlstrom, deceased, upon a settlement contract filed with and approved by the Industrial Commission of Illinois, which was entered into between said Wahlstrom and his employer, A. Knight, and appellant, the insurance carrier. There was a dismissal of the case as to Knight and a judgment on a verdict against the company.

The settlement, as stated in the contract, was intended as a compromise of all disputed questions of law and fact, and made while an appeal to said Commission from the finding of an arbitrator on Wahlstrom’s claim for compensation was pending.

The contract provides that in consideration of the payment of the sum of $1,650 to John Wahlstrom in weekly instalments in the sum of $12 for a period of 137% weeks commencing the 1st day of December, A. D. 1920, by A. Knight and Hartford Accident and Indemnity Company, the parties agree to waive any and all provisions of the Workmen’s Compensation Act, including the right of arbitration, and to settle and adjust said claim and all differences arising out of and in the said cause under the terms of the Workmen’s Compensation Act.

In submitting the contract the parties mutually join in asking the Commission to approve of such waiver and the contract, and that the parties be discharged from further liability, provided, however, that the agreement may be reviewed by said Commission upon petition of either party “as provided by paragraph (h) of section 19 of the Workmen’s Compensation Act.”

The judgment was for $324, covering compensation for a period of time that elapsed after Wahlstrom’s death, which was in no way connected with his employment. All instalments accruing before that time were paid.

It is urged (1) that the court had no jurisdiction to enter a judgment upon the contract, and (2) if it had, the right to recover further compensation terminated with the death of plaintiff’s intestate under the provisions of section (21) of the Act [Cahill’s St. ch. 48, 221], which provides that “any right to receive compensation hereunder shall be extinguished by the death of the person or persons entitled thereto.”

Certain points of practice are argued in connection with the question of jurisdiction, which we deem it unnecessary to discuss, for in our opinion, even if the court had jurisdiction, we think that said section 21 applies to a settlement agreement approved by said Commission as well as to awards made under the Act in due course of procedure and therefore no claim thereunder purporting to accrue after death of the employee can be recovered. Had the award of the arbitrator been sustained there can be no question that under said section the right to recover compensation would have terminated with Wahlstrom’s death. If the settlement was had under the provisions of the Act, as it purports to have been, whereby it sought the approval of the Commission and expressly provided for the retention of its jurisdiction under section 19 of the Act [Cahill’s St. ch. 48, [[ 219], then there would seem to be no room for discussion that the plain and comprehensive words of section 21, “any right to receive compensation hereunder shall be extinguished by the death,” etc., apply to the contract in question.

And if it could be said that the approval of the Commission to the mutual agreement for waiver of the provisions of the Workmen’s Compensation Act took the contract out from under it, then under the rulings of the Supreme Court, as we understand them, such a settlement would be illegal as against public policy as declared in said Act. (Chicago Rys. Co. v. Industrial Board of Illinois, 276 Ill. 112, 117; Wabash Ry. Co. v. Industrial Commission, 286 Ill. 194, 197; Inter national Coal & Mining Co. v. Industrial Commission, 293 Ill. 524, 530.)

In the last-cited case it was said that a settlement for the amount of compensation in order to be within the contemplation of the Act must be in accordance with its terms and provisions. The settlement in question provided for the settlement of a certain amount payable in instalments of $12 weekly. The award of the arbitrator was for the same weekly instalment for a much longer period and a pension for life. The effect of the settlement was to abandon the appeal from that award and supplant it by an agreement that amounted to a waiver of provisions of the Act in regard to amount of compensation, contrary to section 23 [Cahill’s St. ch. 48, ft 223]. It was not a settlement for a lump sum such as is contemplated may be made with the approval of the board under section 9 of the Act [Cahill’s St. ch. 48, 209], but a compromise for a lesser sum than had already been awarded. We think this was as much a waiver of the amount of compensation as was held to be under the facts in the case of the International Coal & Mining Co. v. Industrial Commission, supra.

In this view of the case there could be no recovery and the judgment will be reversed as a matter of law.

Reversed.

G-ridley and Fitch, JJ., concur.


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    James C. Davis, Director General, Plaintiff in Error, v. Naugle Pole & Tie Company, Defendant in Error.
    Gen. No. 30,022.
    1. Carriers — construction of tariff question of law. Construction of a railroad tariff is a question of law for the court.
    2. Carriers — refund from actual tariff rate. If carrier refunds freight from actual tariff rate, it may recover the refund since the rate cannot he altered by mistakes or misapprehensions.
    3. Carriers — proportional rates for unloading and reloading. If storing, unloading and reloading of poles were subject to rebilling and reconsignment under a proportional rate, it was a privilege and service that required publication in a tariff in order to be lawful under Interstate Commerce Act, sec. 6.
    4. CARRiERS-^proportiorotzZ rate defined. A proportional rate is defined to be a part of a through rate.
    '5. Carriers — transit privileges suspending continuous movement. While transit privileges may be made suspending temporarily a continuous movement, it must be one in which the inbound and outbound movements are in fact parts of a single transaction.
    6. Appeal and error — disposition on reversal. Where carrier sued for recovery of refund, and judgment was for shipper, on reversal the Appellate Court cannot enter judgment in plaintiff’s favor for the amount of its claim, but must remand the cause.
    Error by plaintiff to the Municipal Court of Chicago; the Hon. James W. Gordon, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Reversed and remanded.
    Opinion filed October 6, 1925.
    Glennon, Cary, Walker & Murray, for plaintiff in error; L. Beers-Jones, of counsel.
    Baker, Holder & Schmidt, for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This writ of error seeks the reversal of a judgment entered upon a directed verdict for the defendant in the case. The action was brought to recover refunds of freight charges, erroneously granted, as plaintiff claimed, on defendant’s application therefor. The verdict was directed upon stipulated facts, which presented merely a question of the construction of the railroad tariff, which is a question of law. (The Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285.) That question is whether under plaintiff’s published tariff in effect at the time of several reshipments of cedar poles for defendants from Chicago to various points in the States of Ohio and New York, the local rates from Chicago to these points, as claimed by plaintiff, or the proportional rate, as claimed by defendant — the shipments having originated in areas defined by the proportional tariff — was applicable.

For the several shipments as aforesaid defendant paid the local rates, and later, on presentation to plaintiff of a claim for an overcharge in each case, the latter refunded the difference between the local and the proportional rates, as fixed by its filed tariff schedules, and claiming it was erroneously done seeks recovery of the same.

The cedar poles in question were grown in the Pacific coast territory and consigned from said territory to defendant at Chicago in carload lots for storage, and were unloaded and stored in defendant’s yard, and there intermingled and reloaded into the cars in question and sent to the several points of destination as aforesaid.

At the times in question the United States Government was in possession and control of the railroads, and plaintiff Davis was the Director General of the same.

Annexed to the facts stipulated to as above' is, as part thereof, what is referred to as “tariff Eugene Morris 127 G,” which sets forth the proportional rates in freight tariff applying at the time, as stated on its cover, “On lumber, Shingles and other Forest Products, carloads from Chicago * * * and points taking same rates * * * when originating in Paoific Coast Territory defined on pages,” etc., to points in Ohio and New York and other States. We are not impressed, however, with. the contention of defendant in error that the words “when originating” have reference to where the product is grown, but think they refer to the billing or shipment from said territory.

It is the contention of plaintiff in error that inasmuch as the shipment was interrupted by the unloading and storage in defendant’s yard, and was not a continuity of movement, proportional charges do not apply to such a voluntarily interrupted transportation, but that the local rates were applicable. If that contention is correct then plaintiff was entitled to recover the refunds, if made from the actual tariff rate, which could not be altered by alleged mistakes or misapprehension of either party. (Bush v. Carloading S Distributing Co., 210 Ill. App. 399; Texas & Pac. Ry. Co. v. Mugg, 202 U. S. 242.)

Plaintiff in error predicates his argument upon various provisions of the Interstate Commerce Act, as amended, and in force (24 Stat. L. 379, as amended by 34 Stat. L. 584, 36 Stat. L. 454), and decisions interpreting the same, to the effect that the term “transportation” by section 1 of said Act, as amended, includes “all instrumentalities and facilities of shipment or carriage * * * and all services in connection with the receipt, delivery * * * storage- and handling of property transported”; and that section 6 requires the carrier to state separately in its schedules all terminal charges and “all privileges or facilities granted or allowed.” It is also provided by section 15:

“If the owner of property transported under this Act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the commission may, after hearing on a complaint, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the service so rendered or for the use of the instrumentality so furnished.”

Quoting these provisions of the statute in Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42, the court held that services connected with milling, which consisted of elevating the grain from an inbound car into an elevator, and clipping, cleaning, weighing and discharging it into outbound cars, were services in transportation to be paid for “notwithstanding the possibility that some advantage might be gained as a result.” Interpreting these and other provisions the court in Cleveland, C., C. & St. L. Ry. Co. v. Dettlebach, 239 U. S. 588, said, respecting services rendered by the carrier as warehouseman, that the term “transportation” under the act included a variety of services that, according to the theory of the common law, were separable from the carrier’s service as a carrier, and in order to prevent overcharges and discriminations from being made under the pretext of performing such additional services, Congress “enacted that so far as interstate carriers by rail is concerned the entire body of such services should be included together under the single term ‘transportation’ and subjected to the provisions of the Act respecting reasonable rates and the like.”

Said section 6 also provides that the carrier’s schedules shall state certain charges, and “all privileges or facilities granted or allowed,” and that no carrier shall “extend to any shipper or person any privileges or facilities in the transportation except such as are specified in said tariffs.”

The bill or bills of lading in this case are not in evidence. Possibly they would not figure in the case. Put the stipulation that the poles “were consigned to the defendant at Chicago for storage * * * and stored in the yard of defendant and * * * reloaded into the cars in question” (from the same yard) “and sent to the places referred to,” might indicate that the original bill of lading did not call for a through shipment, and that the inbound and outbound shipments were independent transactions. But, whether so or not, it seems clear from the construction given to the act in the cases cited, that if the storing, unloading and reloading of the poles at Chicago was subject to rebilling and reconsignment under the proportional rate from Chicago to the several places in New York and Ohio, it was a privilege and service that required publication in a tariff in order to be lawful, and we do not find and are not pointed to any specification of such a privilege in the schedule in evidence.

Such was the ruling upon an analogous state of facts in Folmer & Co. v. Great Northern Ry. Co., 15 I. C. C. 33. There the shipment was of lumber from the State of Washington to Menasha, Minnesota, where it was delivered by the Chicago, Milwaukee & St. Paul Bailway. There it was unloaded and subsequently forwarded by said railway to Detroit, Michigan, which charged the local rate from Menasha to Chicago. While the complaint was for an overcharge where there was a mistake in the routing it was held that the application of a proportional rate on the stopover shipment would have been in violation of law, it not being specified in the carrier’s tariffs and being a privilege and service that required publication in the tariff in order to be lawful. Like rulings were made in Schults-Hansen Co. v. Southern Pacific, 18 I. C. C. 234 and Moore Stave Co. v. Morgan’s Louisiana, etc., Co., 41 I. C. C. 472.

It was said in Chicago & A. R. Co. v. Kirby, 225 U. S. 155:

“The broad purpose of the Commerce Act was to compel the establishment of reasonable rates and their uniform application.”

And the court added what seems applicable here:

“That purpose would be defeated if sanction be given to a special contract by which any such advantage is given to a particular shipper as that contracted for by the defendant in error.”

There being no specific tariff in the published schedule in question, to cover the privilege of unloading and reloading as aforesaid, it would be tantamount to granting defendant a special privilege and favorable discrimination to allow it to retain the advantage of such a privilege on payment of the proportional rate, which, as we understand the rulings of the Interstate Commerce Commission, applies only to a continuous through movement unless extended in the tariff or schedule establishing the proportional rate.

A proportional rate is defined to be a part of a through rate. (Hocking Valley Ry. Co. v. Lackawanna Coal £ Lumber Co., 224 Fed. 930; Barnes on Interstate Transportation, sec. 80 D, p. 173.) “It is nothing more or less than a separately established rate, as that phrase is used in section 6 of the Amended Act, applicable to through transportation.” (Bascom Co. v. Atchison, T. & S. F. Ry. Co., 17 I. C. C. 354, 356; Greater Des Moines, etc. v. Director General, 60 I. C. C. 403, 407.) It also seems to be the rule that while transit privileges may be made suspending temporarily the continuous movement, yet it must be one in which the inbound and outbound movements are in fact parts of a single transaction (19 I. C. C. 409, 417), and the transit privilege or arrangements must be specified in the filed and published tariff or schedule, otherwise local rates are held to apply. (Hocking Valley Ry. Co. v. Lackawanna Coal & Lumber Co., supra; Acme Cement Plaster Co. v. Chicago & Alton, 17 I. C. C. 220; Melrose Milling Co. v. Great Northern Ry. Co., 43 I. C. C. 741; Swift & Co. v. Erie Railroad, 45 I. C. C. 554; LePrestre, Miller & Co. v. Erie Railroad, 73 I. C. C. 621.)

Accordingly the judgment will be reversed. But the cause must be remanded because we cannot, as asked by plaintiff in error, enter judgment in its favor for the amount of its claim. (Mirich v. Forschner Contracting Co., 312 Ill. 343.)

Reversed and remanded.

Gridley and Fitch, JJ., concur.


text:
    T. G. Necros, Appellee, v. G. Tedtman, Appellant.
    Gen. No. 30,042.
    1. Landlord and tenant — notice to quit. If monthly terms ended at midnight of the 14th of each month, a sixty-day notice to quit dated and served October 15, requiring delivery up of possession at the end of the monthly term in December, gave the required sixty-day notice, under Landlord and Tenant Act, sec. 6, as amended April 29, 1921, Cahill’s St. ch. 80, 1f 6.
    2. Landlord and tenant — notice to quit permitting additional day. Although a monthly term ended at midnight on the 14th of the month, a notice to quit and deliver up possession on the 15th was not bad as establishing a new tenancy for another month, the landlord having the right to give an extra day of grace if he saw fit.
    3. Landlord and tenant — expiration of tenancy from month to month. A tenancy from month to month expires at midnight on the last day of the month, and after proper notice landlord has right of occupancy on the next day.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed October 6, 1925.
    Charles Horgan, for appellant.
    Butler, Lamb, Foster & Pope, for appellee; Chalmers L. McGaughey, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment in a forcible detainer suit awarding possession of the premises to the plaintiff.

The tenancy was from month to month, each check in payment of rent specifying that it was for rent “to the 15th” of the next month.

Service of a sixty-day notice — pursuant to the Act of April 29,1921, then in force — was dated and served October 15, requiring defendant to quit and deliver up possession of the premises on the 15th day of December, 1924.

On this state of facts appellant contends that the monthly term expired on the 14th day of the month, and that the notice was void and ineffectual because it compelled defendant to quit after a new month’s tenancy had already begun, it being agreed that “rent to the 15th” means that the 15th is excluded.

If, as contended, the monthly term ended at midnight of the 14th, there would still have been compliance with the statutory requirement of a sixty-day notice to quit (see section 6, Landlord and Tenant Act, as amended April 29, 1921), [Cahill’s St. ch. 80, T[ 6], for the sixtieth day after October 15 ended on the 14th day of December. The purposes of a notice in a tenancy from month to month are to inform the tenant when his tenancy will terminate and to give him adequate time to prepare to surrender. Both of these purposes are met by the notice in question, whether the monthly term actually ended on the 14th or the 15th. And if plaintiff saw fit to give defendant an additional day of grace in which to move from the premises, that did not, either impliedly or by construction of the law of notice, establish a new tenancy for another month, according to authorities in other jurisdictions. To hold it did would seemingly be inconsistent with the object and purpose of giving the notice.

In Detroit Sav. Bank v. Bellamy, 49 Mich. 317, where the notice to quit required surrender on May 1, and objection to it was that it should have required the surrender April 30, Mr. Justice Cooley said that the error, if any, was not material and that the objection was “too nice and technical”; that “the notice gave the party the necessary information and was intended to terminate the tenancy at the proper time.” There was the same ruling to like objections made to like notices in Searle v. Powell, 89 Minn. 278, and Steffens v. Earl, 40 N. J. L. 128. In the former it was said that while it was proper to notify the tenant to remove on the day his monthly term expires, a notice is not insufficient or defective which notifies him to vacate the following day. The court said, “granting him a favor in this respect is no sufficient reason why the tenant should be permitted to take technical advantage of kindness and good will.” In Steffens v. Earl, supra, while the court recognized that the term in that case probably terminated on the last midnight of July, it said that to hold that a notice given for the day commencing at that midnight is not a good notice, was to carry the rule that the notice to quit must be made with reference to the end of the term, “to an illogical and unreasonable length.”

Under the reasoning of these authorities the notice in the present case could not be deemed defective even if the month ended on the 14th.

But as authority to the contrary appellant cites the case of Bedell v. Clark, 151 Ill. App. 419. In that case the tenancy was recognized as one from month to month, and the notice was served on July 29 to deliver up possession on September 1, following. Bent was paid for the month of August. The tenant not vacating the premises, suit for possession was begun September 1. The court said that if, as shown by the evidence, the last payment of rent was for the month of August, and it was desired to terminate the tenancy at the end of that period, the notice should have been given to surrender on the last day of August, as the month would expire on that day at midnight. The court however added: “At least this is the latest date the notice should have specified to enable appellees to bring their suit on September 1,1908. Prickett v. Ritter, 16 Ill. 96.”

In Kaylor v. Smith, 229 Ill. App. 140, cited by appellant as supporting his contention, where the lease was treated as running from November 1 to December 1, and the notice required vacation on the latter date, the court relying mainly on the rule laid down in Prichett v. Ritter, 16 Ill. 96, fixing the end of the tenancy on the day as fixed by the rent day or falling due of the rent, held the notice was sufficient. It regarded the Bedell case as merely holding that the notice in that case was insufficient upon which to base a suit commenced on the day the notice required surrender of the premises. The opinion in the Bedell case seems to have gone further than that, and is more in consonance with the general rule that a tenancy from month to month expires at midnight on the last day of the month, and the notice should call for vacation of the premises on that day, although the tenant has the right of occupancy to its very end at midnight, and the landlord the right of occupancy on the next day. Notwithstanding this rule, however, we cannot but think that it is the better reasoning to hold, as decided in the cases from other jurisdictions above cited, that the tenant cannot take advantage of a mere technical violation of the rule in the giving of an additional day in which to vacate, and that the giving of that day does not constitute consent of the landlord to holding over for another month.

However, if the rent in the instant case may be deemed “as falling due” on the 15th of each month, as may be inferred from the fact that the payments were made on that dav, then applying the rule laid down in Prickett v. Bitter, the notice may be deemed sufficient. But whether we deem the lease as terminating on the 15th under that rule, or on the 14th under the language, “to the 15th,” we think on the reasoning of the cited authorities the notice was sufficient to sustain the action.

Affirmed.

G-ridley and Fitch, JJ., concur.


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    The People of the State of Illinois ex rel. Anna W. Love and M. B. Okun, Appellees, v. John C. McDonnell, Acting Chief of Fire Prevention, etc., Appellant.
    Gen. No. 30,079.
    1. Municipal corporations — distance of filling station from other property. Chicago ordinance prohibiting construction oí gas and filling station within 200 feet of buildings used for certain purposes, held to contemplate that measurement should be from boundary of property on which filling station is to be constructed and nearest boundary of property on which other building stands.
    2. Municipal corporations — distance of filling stations from church. Under Chicago ordinance prohibiting gas and filling stations within 200 feet of property on which there is a building used for a church, held to prohibit construction of filling station within 200 feet of property on which there was a building only part of which was used for religious services.
    3. Municipal corporations — Salvation Army as church within filling station ordinance. Salvation Army is a religious organization and building used by it is a church, within Chicago ordinance prohibiting construction of gas and filling station within 200 feet of property on which building used as church is located.
    4. Municipal corporations — what does not affect status as church within ordinance. Under Chicago ordinance prohibiting license for construction of gas and filling station within 200 feet of church, a building used by Salvation Army constituted a church, although a few of its members were incorporated for the purpose of handling the physical properties of the organization.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Emanuel Eller, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Reversed.
    Opinion filed October 6, 1925.

      Francis X. Busch, Corporation Counsel, and William L. Sullivan, Barnet Hodes and Thomas J. Sheehan, Asst. Corporation Counsels, for appellant; Daniel V. Gallery and Barnet Hodes, Asst. Corporation Counsels, of counsel.
    No appearance for appellees.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from an order directing the issuance of a writ of mandamus against the Acting Chief of Fire Prevention and Public Safety of the City of Chicago commanding him to restore a license issued August 8, 1924, to petitioner Anna W. Love “to install a 2-1000 tank” for a gas and filling station at certain premises on Ogden avenue, Chicago, or to issue a new license in the form of a canceled license therefor.

The license was revoked the next month after its issuance upon the ground that the said premises adjoin property “used for church purposes,” and that the city ordinance under which such licenses are issued prohibits such a filling station within 200 feet of property used for a church, school, theatre or hospital.

The ordinance in question empowers said officer to issue a license for such purposes, and also makes it his duty to enforce its provisions “which may tend to prevent the starting and spreading of fires or disastrous results in case of fire.” His power to revoke a license not issued in compliance with the ordinance was not questioned at the trial except on the ground of estoppel, which the record furnishes no facts or proof to support, and appellees have filed no brief in this court.

The ordinance forbids the installation of any tank for the storage of the liquids mentioned therein and for which a license is sought “in any lot or plot of ground where any of the boundaries of any such lot or plot of ground are within 200 feet of the nearest boundary of any lot or plot used for a school, hospital, church or theatre.”

The premises in which it is sought to install the gas and oil station front west on Ogden avenue and in their rear adjoin a lot owned by the Salvation Army fronting south on West Madison street. On said lot is a building the front part of which is divided into stores with apartments over them, and in the rear portion thereof is an auditorium which has an entrance on Madison street by a hallway between the stores and has an exit at the rear to Ogden avenue. This auditorium is regularly used on Sundays and other days for conducting religious services and is devoted exclusively to church or religious purposes. It is proposed to install said tank within 3 feet of the west wall of said auditorium.

The trial judge seems to have decided the case on two erroneous grounds: (1) That the front entrance was more than 200 feet from where the tank or oil filling station was to be put up; and (2) that the entire building was not used exclusively for religious purposes and, therefore, could not be considered a church within the purview of the ordinance.

As to the first ground, it is enough to point out that by the terms of the ordinance the 200 feet are to be measured from “the nearest boundary of any such lot,” etc., and not from a building on it or its entrance.

As to the second ground, considering that the main object of the ordinance is to prevent danger from fire or explosion to those who may assemble or be in buildings used for schools, hospitals, churches and theatres, we think that any building or part thereof which is used regularly and exclusively for any of these purposes comes within the meaning and object of the ordinance, which is primarily to protect human life in a place used for any of such purposes where a considerable number of persons frequently gather, and such an object is not affected by the mere form or size of the structure.

That the Salvation Army is a religious organization entitled to the same protection as any other religious organization when its members are assembled in their place of worship is hardly open to discussion. The evidence shows that like other Christian denominations it has a distinct ecclesiastical government, defined doctrines and discipline, and a recognized creed and mode of worship.

Some of its members have incorporated under the name of Salvation Army for the purpose of handling the physical properties of the organization but that fact has no bearing on the real question whether said auditorium is used for a church or religious purposes.

We are of the opinion that the issuance of a writ of mandamus would be in disregard of the manifest object and purposes of the ordinance as well as of its express terms.

Reversed.

G-ridley and Fitch, JJ., concur.


text:
    Lanzit Corrugated Box Company et al. On appeal of Michael Gidwitz and Jacob Gidwitz, Appellants, v. Lillian Cohn and Maurice A. Barancik, Appellees.
    Gen. No. 30,101.
    1. Appeal and error — one cannot assign error for another party. An appellant cannot assign alleged error for another party to the record.
    2. Attorneys and counselors — rebuttal of presumption of authority. Presumption that attorney who entered his appearance for a corporation was retained for that purpose could be repelled by undisputed facts set forth in an affidavit.

      3. Corporations — dissolution in equity. Courts of chancery are without jurisdiction to decree dissolution of a corporation except in so far as that jurisdiction is conferred by statute.
    4. Corporations — dissolution and receivership. Remedy provided by Cahill’s St. 1925, p. 622, ch. 32, secs. 53, 54, relating to dissolution and receivership, has application only to insolvent corporations in favor of creditors.
    5. Corporations — stockholders’ rights to dissolution and receivership. Cahill’s St. 1925, p. 622, ch. 32, secs. 53, 54, do not give stockholders of a corporation right to dissolution and receivership where corporation is solvent simply because there is equal ownership of stock and a resultant deadlock in election of directors.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Hugo M. Friend, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed October 6, 1925.
    Edward J. Kelley, for appellants.
    Moses, Kennedy, Stein & Bachrach, for appellees; Hamilton Moses, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal by Michael Gidwitz and Jacob Gidwitz, two of the original complainants in a bill of equity, from a decree dismissing the bill for want of equity upon a demurrer thereto filed by defendants, appellees, after the bill had been dismissed as to a third complainant, the Lanzit Corrugated Box Company.

Error is assigned by appellants not only as to dismissal of the bill as to them but as to said company. The company did not appeal, and it is settled practice that an appellant cannot assign error, for another party to the record.

But the order was proper, it appearing affirmatively without question, partly by the bill and partly by affidavit, that the suit was being prosecuted in the name of the company without lawful authority. It appeared that its secretary had no authority, by virtue of his office or by implied or express delegation, to sign the bill or institute the suit, and any presumption that the attorney who entered his appearance for the company was retained for that purpose was repelled by the undisputed facts set forth in the affidavit. (Bell v. Farwell, 189 Ill. 414.)

With the company eliminated as a party, the bill becomes one in which two of its stockholders seek in effect the dissolution of a solvent corporation. The bill asks for the appointment of a receiver pendente lite to conduct the business of the corporation and that its assets be sold and the proceeds be used first to pay the creditors and then in distribution to the stockholders, and for an injunction restraining defendants from injuring the corporation or its business. From the averments of the bill it would appear that the corporation is still functioning, and that it is solvent and “a successful dividend paying concern.”

The occasion for filing the bill is found in the facts that difference and a “deadlock” have arisen between complainants, who own half of the company’s stock, and defendants, who own the other half. The directors are complainant, Michael Gidwitz, and defendant, Lillian Cohn, the widow of Charles Cohn, who at the time of his death was the third director and president. The deadlock has arisen from the failure to fill the vacancy caused by his death, complainants being unwilling to elect another member of the Cohn family as director and president of the corporation, and defendants unwilling to elect another member of the Gidwitz family to such positions. It is alleged that such condition “may develop to such extent as to cause injury to persons extending credit to the corporation.”

It is further alleged that defendants have entered into a conspiracy, which, from the averments, consists mainly in demanding an examination of the corporation’s books, papers, vouchers, etc., at a time and in a manner alleged to be “embarrassing” to the conduct of the business and “unreasonable,” and in Lillian Cohn’s revoking the authority she gave as a director to pay Michael Gidwitz a salary of $12,000 a year and in defendants’ informing the bank, where the company keeps its deposit account, of that fact. The alleged object of the conspiracy seems to be either to force complainants to sell a portion or all of. their stock or to secure a place for defendant Barancik in the corporation. But we fail to see in the facts constituting the alleged conspiracy any ground for equitable relief.

In view of such deadlock and conditions it is alleged that the corporation can no longer “properly” function, although it is admittedly functioning, and that “said condition may be detrimental not only to the stockholders of this corporation but to possible creditors of the corporation,” and that as it Would be “impossible” for either party to buy the stock interest of the other, the only possible way to remedy the conditions is to have the corporation managed by the court and sold at public sale and the proceeds used as above stated.

Viewing the bill of complaint as one seeking the dissolution of the -corporation, it was repugnant to the demurrer, first, because, as said in People v. Weigley, 155 Ill. 491: “It is well settled by the decisions of this court as well as the authorities generally, that courts of chancery are without jurisdiction to decree the dissolution of corporations, except in so far as that jurisdiction is conferred by statute.” (See also, Coquard v. National Linseed Oil Co., 171 Ill. 480-485; Lincoln Park Chapter v. Swatek, 204 Ill. 229; Blanchard Bro. & Lome v. S. G. Gay Co., 289 Ill. 413, 420; Abbott v.. Loving, 303 Ill. 154; Goldman v. McKey, 288 Fed. 829; Tresslev. Union Fuel Co., 238 Ill. App., post.) Most of these cases were decided with reference to the remedy furnished by section 25, eh. 32, of the Illinois Statute, wMch is similar to sections 53 and 54, eh. 32, of the present Illinois Corporation Act (Cahill’s St. 1925, p. 622). That remedy, however, is in favor of creditors only, and has application only to insolvent corporations. (See People v. Weigley, supra.) The bill fails to allege either that the corporation has creditors, or that it is insolvent. On the contrary its averments clearly indicate that it is solvent.

Section 54 of the present Corporation Act provides:

“Courts of equity shall have full power, on good cause shown, to dissolve or close up the business of any' corporation, to appoint a receiver therefor # * * >>

Like language is found in section 25 of the former Act. The words “good cause shown,” as there used, have been defined to be “the doing or refraining from doing some act which shall subject the corporation to a forfeiture of its charter or corporate power,” etc. (Bixler v. Summerfield, 195 Ill. 152; Abbott v. Loving, 303 Ill. 154, 167.) It is clear from what was said in the last two cited cases that the alleged facts in the bill of complaint do not bring this case within the causes which will authorize a court of equity to dissolve a corporation or close up its business, or appoint a receiver. None of its alleged facts constitutes the “doing or refraining from doing some act which shall subject the corporation to a forfeiture of its charter or corporate power.”

A dissolution is not effected by the failure to elect a director to fill the vacancy or to hold armnal meetings. The statute expressly so provides. (Section 43, ch. 32, Cahill’s St. 1925. See also Town of Mendota v. Thompson, 20 Ill. 197; People v. Wren, 5 Ill. 269, and Cook on Corporations, vol. 2, 6th Ed., p. 1777.) And where a corporation is functioning mere dissatisfaction of its stockholders, in the absence of fraud or insolvency, or mere disagreements among its directors will not authorize or justify the appointment of a receiver. (Pomeroy’s Eq. Jur., vol. 4, 4th Ed., ¶ 1545; L. R. A. 1918 D, pp. 229, 232; Sternberg v. Wolff [N. J.], 42 Atl. 1078, 1079.)

The authorities cited by appellants do not conflict with those views. We think, therefore, there was no error either in the order dismissing the company out of the case, or in dismissing the bill for want of equity.

Affirmed.

G-ridley and Pitch, JJ., concur.