text:
    Lindner and Boyden Bank, Appellee, v. Lyle Wardrop, Administrator of the Estate of William Wardrop, Deceased, and Bertha Nash. Bertha Nash, Appellant.
    Gen. No. 9,212.

      Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    Rehearing denied October 4, 1937.
    James N. Cummings, of Kewanee, for appellant.
    F. W. Rennick, of Buda and Leo P. Baird, of Galesburg, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

William Wardrop was a resident of Bureau county, Illinois. On July 12, 1935, he deposited in appellee bank $750, for which the bank executed and delivered to him its certificate of deposit in words and figures as follows:

Certificate of Deposit Not Subject to Check
“Lindner & Boyden Bank No. 10313 Buda, Ill., July 12, 1935. $750.00
William Wardrop or Bertha Nash has deposited in this Bank Seven Hundred Fifty and no/lOU • . . . Dollars payable to the order of Either of them on the return of this Certificate properly endorsed with interest at the rate of 2½ per cent per annum from June 21st, 1935, for full calendar months only if left One Year.
No interest after one year. Subject to sixty days notice of withdrawal at the option of the Bank.
W. T. Akin,
A. Cashier.”

William Wardrop took possession of said certificate and placed same in his lock box at the bank, where it remained until his death. He died intestate on November 23, 1935. Lyle Wardrop was appointed and qualified as administrator of the estate of said deceased. Upon opening the lock box of the deceased, the above certificate was found among other valuable papers belonging to the deceased. Upon discovery of the certificate, the administrator claimed ownership thereof on behalf of the estate, and appellant Bertha Nash claimed ownership thereof. The bank filed its inter-pleader making the claimants defendants thereto. Defendants filed answer and the cause was heard by the court. Decree was entered in favor of the administrator, and Bertha Nash has prosecuted this appeal.

Appellant claims no knowledge of the certificate nor any consideration therefor, and admits she has no knowledge of the bank records concerning same. However, she urges that if said records show that the deceased signed a document whereby he authorized the bank to pay the sum of the certificate to himself or appellant, “or the survivor of them,” that in such event she is entitled to the whole of said amount; but if the deceased did not sign any such document authorizing the bank to pay the money to the survivor, then she is entitled to one-half of the amount due thereon. This is the position of appellant with respect to her answer. However, in her argument it is stated that, “there is nothing to be considered by this court, except whether or not the law in the state of Illinois gives to appellant the undivided one-half interest in the certificate of deposit in question.” This statement no doubt is prompted by the fact tha,t the bank records failed to show any writing of any kind with reference to the certificate, except the certificate itself.

It will be found that the facts in this case differ in many respects from those existing in the cases referred to by appellant. The certificate in this case does not provide for the right of survivorship in the fund as in the case of Erwin v. Felter, 283 Ill. 36. Neither does it comply with sec. 2, ch. 76 on Joint Eights and Obligations, Ill. State Bar Stats. 1935, ch. 76, ¶ 2; Jones Ill. Stats. Ann. 70.03, which section expressly reserves the right of survivorship in personal, property jointly owned, where, by will or other instrument in writing, an intention is expressed to create a joint tenancy in such property with the right of survivor-ship, such as in the case of Illinois Trust & Sav. Bank v. VanVlack, 310 Ill. 185.

Whatever is subject to individual dominion by virtue of the law of sole ownership is likewise susceptible of being made subject to such joint dominion as results from the law of joint ownership, subject to statutory limitations. One seeking to create a joint tenancy by a deposit may do so, but it must be remembered that joint tenancies are not favored, and while they may exist in personal property, they must be created by apt and explicit terms. The money in question originally belonged to the decedent. The owner of money can part with it only by gift, payment, or bequest, so if the appellant is to be said to be entitled thereto, the property must have passed somehow from the decedent to her. There is no claim here of a valuable consideration for the transfer. This leaves the title of the survivor to rest upon a gift, trust, or bequest. The bequest cannot be considered because it is not claimed that the transfer is in the requisite form to constitute a valid bequest. There thus remain two grounds upon which the right of the survivor to the fund must be based, gift or trust, and unless the survivor can show title in one of these ways, her claim must fall.

The intention of the owner of money in depositing it in a joint account is a question of fact, where there is evidence as to the intention. In many cases such as the present one, there is no such evidence and it then becomes necessary to determine the rights of the survivor from the deposit in the form as made. The rule sustained by a majority of cases, under circumstances similar to those existing herein, is that the mere fact that money is deposited to the account of the owner “and” another, or the owner “or” another, does not show a gift nor carry with it the right of survivorship to the fund. In this case appellant knew nothing about the certificate of deposit, exercised no control over the same, nor was it delivered by the deceased to any third person to hold. It was retained by the deceased in his lock box in the bank, to which box no other person had access. The difference between a gift and a voluntary trust is that in the case of a gift the thing itself passes to the donee, while in the case of a trust, the actual, beneficial, or equitable title passes to the cestui que trust, while the legal title is transferred to a third person, or retained by the person creating it to hold for the purposes of the trust. Possession and control in such a case remain with the trustee, but a gift of the equitable or beneficial title must be as complete and effectual in the case of a trust, as is the gift of the thing itself in a' gift inter vivos. It seems evident that unless the owner intended to create a joint tenancy by a joint deposit with the right of survivorship, or divested himself of all beneficial interest therein, the requirements as to delivery in case of gift of personal property are not met.

A gift divests the donor of title and requires a renunciation of claim and interest in the subject of the gift. In this case the certificate of deposit was retained by the depositor, to whom the money belonged. It was kept in his lock box at the bank, to which box no other person had access. Never at any time did he surrender the possession of the certificate to another. Nothing was said by him to the cashier of the bank regarding his intentions at the time he purchased the certificate. Therefore there is no evidence as to intention, and there is no such divesting of dominion of the money as to constitute a gift to appellee, as survivor.

This case does not present a situation where the parties had' a joint bank account over which they exercised a joint control, drawing checks thereon at will, and making deposits from time to time. But in this case, property that admittedly belonged to one person is being claimed by another who does not pretend to have parted with any valuable consideration therefor. It has been said in this State that where the owner of money purchases a certificate of deposit payable to another, and the depositor retains the same in his possession, title to such fund will not pass to the third person as a gift, in the absence of any declaration of trust or facts going to show the vesting of title. Telford v. Patton, 144 Ill. 611, 624, 625. This doctrine has been reaffirmed in Erwin v. Fetter, supra, at pp. 39 and 40, and in Reder v. Reder, 312 Ill. 209, 212.

The certificate herein does not provide for payment of the fund to the survivor as in Erwin v. Fetter, supra, nor was any compliance made' with the statute as in the case of Illinois Trust & Sav. Bank v. VanVlack, supra. The appellant has failed to establish a gift and there is no evidence to support the existence of a trust. The decree of the trial court is therefore affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Henry F. Schwartz et al., Appellees, v. Broadway Trust and Savings Bank of Aurora et al., Appellants.
    Gen. No. 9,232.
    Heard in this court at the May term, 1937.
    Opinion filed September 9, 1937.
    Rehearing denied October 4, 1937.
    Harry C. Hanson, of Geneva, and Alschuler, Putnam & Johnson, of Aurora, for appellants; Edward F. Streit, of Aurora, of counsel.
    Little & Latham, of Aurora, Seyfarth & Atwood and Leonard & Leonard, both of Chicago, for appellees; Merritt J. Little, and Julian E. Latham, both of Aurora, and Karl Edwin Seyfarth and Benton Atwood, both of Chicago, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

Henry F. Schwartz and others, brought a representative suit in the circuit court of Kane county in behalf of themselves and other creditors of the Broadway Trust and Savings Bank of Aurora, against the defendants and other stockholders of said bank, to enforce the constitutional liability of said stockholders.

Oscar Nelson, one of the defendants, filed an answer to the original bill of complaint, to which the plaintiff filed a replication. The case was heard before the court, without a jury. He found the issues in favor of the plaintiff, and that Oscar Nelson was the owner of 70 shares of capital stock of said bank, and that there were creditors of the bank in excess of $7,000 at the time he owned such stock. He entered a decree ordering Oscar Nelson to pay the sum of $7,000 to satisfy his liability as such stockholder. From this decree, an appeal to the Supreme Court was perfected. The case was transferred to this court by the Supreme Court, and the opinion is found in volume 366 Ill., p. 98.

No evidence was heard by the trial court concerning the liability of Oscar Nelson, but the following stipulation was entered into between the parties: ‘ ‘ Stipulation filed November 5, 1936, by and between complainants and the defendant, Oscar Nelson, by Seyfarth and 'Leonard and Little and Latham, Solicitors for the complainants and Harry C. Hanson and Alschuler, Putnam and Johnson, Solicitors for the defendant, Oscar Nelson, as follows:

“It is hereby stipulated and agreed by and between the Complainants in the above entitled cause, and the defendant, Oscar Nelson, by their respective counsel that the record in this case shows the following:
“1. That the books and records of the Broadway Trust and Savings Bank of Aurora show that liabilities of said Bank in the amount of $41,684.75 accrued to the creditors of said Bank in the period beginning October 29, 1927, and ending November 18th, 1927, and remained unsatisfied at the suspension of business on June 30,1932, and that similar liabilities in the amount of $6,395.56 accrued to said creditors in the period from November 18th, 1927, to March 20,1928.
‘‘2. That claims of creditors in the aggregate amount of $11,249.95, which were shown as liabilities on the books and records of said Bank and were included in liabilities of $48,080.31, which accrued to creditors while Oscar Nelson held stock in said Bank, were disallowed as claims by the Auditor of Public Accounts of the State of Illinois, and by the Circuit Court of Kane county, Illinois, in proceedings to dissolve the said banking corporation.
“3. That persons who held shares of the capital stock in said Bank during the same periods that Oscar Nelson owned and held shares of stock therein have heretofore paid by the Receiver herein amounts aggregating in excess of $37,000.00, in full or partial satisfaction of the constitutional superadded liability of each individual person making such payment by reason of the ownership of stock during the same periods that Oscar Nelson owned and held stock therein.
“4. That Complainants, by their counsel, objected to the introduction of evidence concerning the (1) dis-allowance of claims above described in Paragraph 2, and (2) payments of liability by stockholders other than Oscar Nelson, above described in Paragraph 3.
“5. That Oscar Nelson has not paid anything on account of his liability as a stockholder in the Broadway Trust and Savings Bank of Aurora. ’ ’

The Supreme Court, in passing upon the merits of this case, say: “The defendant stockholders of the Reliance Bank and Trust Company contend that other stockholders of said company, who held stock therein contemporaneously with them and for the same period' of time, paid to the receiver appointed in the creditor’s suit sums aggregating more than the amount of unsatisfied liabilities of the Reliance Bank and Trust Company to its creditors which accrued during such period of time, and that such payments discharged the defendant stockholders from further liability to the creditors of said Reliance Bank and Trust Company. The same legal contention is made in cause No. 24053.

“Both sides agree to the principle that a stockholder’s liability in a defunct State bank is measured by the unsatisfied liabilities which accrued during the period of stock ownership, subject to the limitation that the stockholder’s liability shall not exceed the par value of the stock held by him. In ascertaining the liability of an individual stockholder, the court in which the representative suit is pending must ascertain two primary facts: First, the aggregate amount of liabilities which accrued while the stockholder held his stock, and, second, the par value of the shares of stock so held by him. Without the existence of unsatisfied claims, which accrued while he remained a stockholder, he is under no liability to the bank’s creditors at all. If there be unsatisfied claims against the bank, which accrued while lie was a stockholder, then, at most, he can be held for no sum in excess of the par value of his stock. If a group of contemporaneous stockholders pay to the receiver in the creditor’s suit a sum equal to all the liabilities incurred during the contemporaneous ownership, their liabilities are satisfied, and there is no warrant of law to compel that group to pay to the receiver, for the benefit of creditors, a sum greater than the aggregate of liabilities incurred by the bank while that group were the stockholders. These principles have been firmly established by the decisions of this court in Golden v. Cervenka, 278 Ill. 409; Sanders v. Merchants State Bank, 349 id. 547; Leonard v. Bye, 361 id. 185; Heine v. Degen, 362 id. 357, and Comstock v. Morgan Park Trust and Savings Bank, 363 id. 341.”

The appellant and appellee differ materially upon the construction to be given to the stipulation, but it seems to us that it is olear and not ambiguous. The stipulation states that during the time that Oscar Nelson, the defendant, owned shares of stock in said bank, that there was a liability to the amount of $48,080.31, and that of this amount, $11,249.95 had been disallowed as claims against the bank, by the circuit court of Kane county. This left a net liability of $36,830.36. It is stipulated that the other stockholders owning stock during the same period as Oscar Nelson, had paid in an amount in excess of $37,000. This is more than the total liability of the stockholders, due the creditors of the bank, for the period that the defendant, Nelson, owned stock in the bank.

It is our conclusion that the stipulation shows, that for the period that the defendant, Oscar Nelson, owned stock in said bank, there has been paid an amount in excess of the claims which accrued while he was such stockholder, and that he is now under no liability to the bank’s creditors.

The judgment of the circuit court of Kane county is hereby reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Fulton

text:
    National Rose Company, Appellee, v. Mundet Cork Corporation, Appellee, and Bromfield Finance Company, Appellant.
    Gen. No. 9,016.

      Heard in this court at the January term, 1937.
    Opinion filed April 16, 1937.
    Rehearing denied October 5, 1937.
    Springstun & Springstun, of Edwardsville, for appellant; C. P. Hanlon, of Boston, Mass., of counsel.
    Carl H. Preihs, of Pana, for appellee National Rose Co.; John W. Preihs, of Pana and Joe P. Longwell, of counsel.
    Warnock, Williamson & Burroughs, of Edwardsville, for appellee Mundet Cork Corp.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

The complaint in this cause, in the nature of a bill of interpleader, was filed in the circuit court of Christian county on April 9, 1935. The amended complaint of the appellee, National Rose Company, filed on November 9, 1935, alleged in substance that it was an Illinois corporation with its principal place of business in the city of Pana, Illinois; that Claude F. Bollman, while receiver for Matón Bros. Inc., entered into a contract with the firm of R. H. Tait & Sons, Inc., for the installation of an ice box and refrigeration equipment to be installed in certain property at Pana, Illinois; that the ice box and refrigeration equipment was duly installed all in accordance with a written contract; that after such installation the said receiver sold and transferred all his right, title and interest in said ice box and equipment to the appellee, National Rose Co.; that afterwards appellant, the Bromfield Finance Company, a Massachusetts corporation, represented to the said appellee that it was the assignor of said contract and was entitled to the unpaid payments due thereunder and that as a result of such representations the said appellee, relying upon the same, entered into a new contract or agreement with the appellant whereby the payments, due under the original contract, were reduced and the time and manner of payment changed and modified; that afterwards the said appellee made certain payments upon said new contract to the appellant ; that later and after several of said payments had been so made to the appellant, Bromfield Finance Co., the appellee, Mundet Cork Corporation, represented and claimed to the appellee, National Rose Co., that it was the assignee of the original contract entered into by the said receiver for the installation of said ice box and refrigeration equipment and that as the holder of said contract it was entitled to the unpaid payments due thereunder and threatened to institute suit against the National Rose Company lor the recovery of the amount due under the said original contract; that the said appellee was unable to determine to whom the unpaid balance, if any, under the original contract with said receiver, or the said modified contract, should be paid, and that demand for payment had been made upon it by both the appellant Bromfield Finance Company and the appellee, Mundet Cork Corporation, both of whom were defendants to the original complaint; that the appellee, National Bose Company, had not paid certain payments now due under said modified contract amounting to $490, but that it was ready and willing to pay same and offered to bring said amount into court to be deposited with the clerk, etc.; that a suit had been filed against the said appellee, National Bose Co., by the appellant and was then pending before a justice of the peace at Pana, Blinois, and that the Mundet Cork Corporation had likewise threatened to institute suit against said appellee for said amount and also threatened to remove said ice box and equipment from the premises wherein it was installed; that the said Mundet Cork Corporation claims to be the owner of said contract for the installation of said ice box and equipment and entitled to all the benefits thereunder and further claims that the Bromfield Finance Company was never at any time the owner of said contract; that the suit was not brought in collusion with either of the parties made defendant to the original complaint, but for the sole purpose of being relieved from vexatious litigation concerning said matters.

The complaint prayed that the court determine which of said claimants were entitled to the contract in question, the money due thereunder, and the amount thereof, and that the rights of all parties, be fixed and adjudicated, also that the two defendants to the complaint and the justice of the peace be enjoined from prosecuting the pending suit and any future suits. The original contract between the receiver and Tait and Sons for the installation of the ice box and equipment was attached to both the original and amended complaints.

On April 13, 1935, both the defendants to the complaint, being nonresident corporations, entered their appearance in writing and submitted themselves to the jurisdiction of the court. On the same day, the court issued a temporary injunction restraining the appellant, Bromfield Finance Co., and the justice of the peace from further prosecuting the pending suit, and restraining the Mundet Cork Corporation from prosecuting any suit against the National Rose Co., based on said contract.

On April 22,1935, the Bromfield Finance Co. filed its motion to dissolve said injunction. On April 25, 1935, it filed an answer to the original complaint. The Mundet Cork Corporation filed an answer to the original and amended complaints and also a counterclaim asking for additional relief against the appellee, National Rose Co., and the appellant. On July 23, 1935, the appellant filed a motion to strike from the files the answer and counterclaim of the appellee Mundet Cork Corporation. On November 18, 1935, appellant’s motions to dissolve the injunction, dismiss the complaint and to dismiss the answer and counterclaim were extended to the amended complaint and the amended answer and counterclaim. On October 24, 1935, the injunction was dissolved as to the justice of the peace but not as to the defendants to the complaint. On May 5, 1936, the court denied appellant’s motion to dissolve the injunction, denied its motion to dismiss said cause and also denied its motion to strike the answer and counterclaim of the appellee Mundet Cork Corporation from the files. It is from this order that appellant prosecutes this appeal. The questions presented by the appeal arise solely from the pleadings. No testimony was heard in the trial court.

In passing upon the questions raised by the appellant it is necessary first to determine whether or not the amended complaint stated sufficient facts which would support the order of the court entered on May 5, 1936. Our courts have many times stated that the equitable remedy of an interpleader depends upon and requires the existence of four essential elements: First, the same thing, debt or duty, must be claimed by all the parties against whom relief is demanded. Second, all the adverse titles or claims must be dependent on, or be derived from a common source. Third, the person asking the relief must not have nor claim any interest in the subject matter, and fourth, he must have incurred no independent liability to either of the claimants and stand perfectly indifferent as in the position of a stakeholder. Morrill v. Manhattan Life Ins. Co., 183 Ill. 260; Heinrich v. Harrigan, 179 Ill. App. 199. It is not necessary that the complaint set out the detailed facts upon which the title of the claimants is based but may only state in a general way the nature of such claims. Supreme Lodge v. Raddatz, 57 Ill. App. 119. It seems to us that the complaint filed in this cause complies with the requirements of such decisions. It showed on its face that the two defendants, the Mundet Cork Corporation, and the Bromfield Finance Company, each claimed the benefits or money due under a conditional sales contract for the installation of an ice box. It also alleged that the appellant had brought suit against the appellee, National Rose Company, for payments due arising out of said contract and that the other defendant to the complaint was threatening to bring suit against it for the same money. Under these circumstances and with these allegations contained in the complaint it was perfectly proper for the. court to deny appellant’s motion to dissolve the injunction, and dismiss the complaint.

The appellant argues that the motion to dismiss the answer and counterclaim of the Mundet Cork Corporation should have been granted because of the failure of the appellee, Mundet Cork Corporation, to comply with the requirements of section 22 of the Civil Practice Act, Ill. State Bar Stats, 1935, ch. 110, ¶ 150; Jones Ill. Stats. Ann. 104.022, in that it did not state that the said appellee was the actual bona fide owner of said claim and did not set forth how and when it acquired title thereto. Disregarding the point raised by the Mundet Cork Corporation that this ground was not urged in the lower court, it appears from the counterclaim that the contract in question was assigned to the said appellee, and the time and method of such assignment are specifically set forth in the counterclaim. Copies of the assignments giving the dates were attached to the counterclaim and it stated specifically that the said appellee was entitled to the rent or money due under said contract and the amount and date of each payment was definitely set forth. This was a substantial compliance with the statute. Section 4 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 132; Jones Ill. Stats. Ann. 104.004, provides that the act shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to said act or to the rules of court made pursuant thereto. Aetna Ins. Co. v. Illinois Cent. R. Co., 283 Ill. App. 527.

Some portions of the court’s order under date of May 5, 1936, were interlocutory in their nature and it is doubtful whether such order was a final order of the court, but the errors relied upon by the appellant are technical in their nature and without substantial merit. We believe the appellee, National Rose Company, had the right to submit the facts set forth in its amended complaint to the court and to ask the court to determine who was entitled to the funds in question and to litigate any other rights between the parties.

It is therefore our opinion that the order of the trial court entered on May 5, 1936, denying the appellant’s motion to dissolve the injunction as to the defendants named in the amended complaint, denying the motion to dismiss the cause and to strike the answer and counterclaim of the appellee, Mundet Cork Corporation, was correct. For the reasons given the order of the circuit court is hereby affirmed.

Affirmed.


author: Me. Justice Davis

text:
    Kenneth Kerwin, Appellee, v. Stonington Elevator Company, Appellant.
    Gen. No. 9,042.

      Heard in this court at the January term, 1937.
    Opinion filed April 16, 1937.
    Rehearing denied October 5, 1937.
    Monroe & Allen, of Decatur, for appellant.
    Hershey & Bliss, of Taylorville, for appellee.
   Me. Justice Davis

delivered the opinion of the court.

Kenneth Kerwin, plaintiff appellee, recovered a judgment in the circuit court of Christian county against the Stonington Elevator Company, a corporation, defendant appellant, for the sum of $3,500 on account of damages sustained by him when delivering corn at said elevator and this appeal is from that judgment.

The evidence discloses that this elevator was in charge of Emmett Wilkinson. The grain was weighed at the office a short distance from the elevator. There was a long driveway through the elevator, which was about -nine feet wide, and there were eight dumps in this driveway. The person delivering grain would drive up an incline onto the driveway and proceed to the dump at which the grain was to be unloaded.

The plaintiff lived on a farm with his father, for whom he worked, located about three miles west of Stonington. On November 18, 1933, he went to the elevator with a load of corn belonging to his father, driving a team of mules. He arrived there about 12:15 p. m. and Emmett Wilkinson weighed the corn and Cletus Wilkinson, a son of the manager, told plaintiff to dump the corn in dump number five, and in driving there plaintiff had to drive over dump number four. As the front right wheel of his wagon hit the dump log on this dump number four it went down and plaintiff was thrown off the wagon against the side of the elevator. As the wheel went down the end of the log flew up and hit the right mule on the side and the team ran away. The wagon ran over his right arm and he was severely injured. He was in the hospital eight weeks, and later went back and was there five weeks and three days.

This number four dump was made of two timbers about 10 inches wide and 10 or 11 feet long placed in the driveway about the width of two wagon wheels apart. The logs go longitudinally up the driveway and a beam goes through the logs about the center so that they can rock to dump the load. There is a bar at the rear end of the logs with blocks attached to support the logs and a lever attached, when pulled back, untriggers the logs and the rear end goes down to unload wagons. This bar was made of a board 2 x 8" across under the logs with a block for it to catch on each log. When the logs are fastened to hold up a wagon the end of the log rests on these blocks which stand up. The lever is fastened to this cross timber, with a wedge in back of the lever to hold it forward. When the lever is pulled back it untr'iggers the two logs and lets the ends go down to unload the wagon. The back goes down and the front up. When the lever is thrown forward the two blocks come up under the wagon and hold the logs up. Then the wedge is used so that the lever cannot go back. It is locked in a forward position. Both of the logs drop into a trench at their forward ends.

Ho evidence of any specific negligence was offered by the plaintiff. There was evidence of some experiments that were conducted a short time before the trial of the case. The evidence discloses that the witnesses pulled the lever back and forth and pushed the logs down and untriggered them and let them fall. That it was possible to lock the dump and the right log would not be locked. At the time the lever was forward in the locked position and when the wedge was behind the lever, the right log would not be looked. The rear end would not raise quite enough to let the trip block under it. The block was against the end of the log. In the correct position it would have been under it. Both logs drop into a trench. A little dirt was thrown into that trench so as to keep the log from going down.

It is contended by appellant that there was no evidence of negligence offered by plaintiff and that he relied entirely upon the presumption raised by the doctrine of res ipsa loquitur and that this presumption has been overcome by actual evidence of usual, reasonable and customary care of a prudent elevator operator, which entirely overcomes and abates the presumption arising from the doctrine of res ipsa loquitur.

Plaintiff appellee insists that appellant somewhat erroneously misconceives the degree of care that is owed to plaintiff, not that it was the insurer of the safety of the plaintiff upon the premises but that it owed him a duty to exercise reasonable and ordinary care taking into consideration all of the circumstances. The premises in question and the driveway, with-its numerous grain dumps and trap doors, was inherently a place of danger, and under these circumstances the duty of ordinary care owed to the plaintiff was about equivalent of the highest kind of care, and it was of such degree that the jury was warranted in finding, after hearing all the evidence, that appellant had not exercised reasonable and ordinary care toward the plaintiff.

That there can be no question but that all elements present are necessary for a proper application of the doctrine of res ipsa loquitur. That appellant misconceives the rule in that it assumes that when any proof of reasonable care is offered the presumption or prima facie case is destroyed. That this has never been the rule under facts similar to those in this case.

The doctrine of res ipsa loquitur is that whenever a thing which produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events does not happen, if due care has been exercised, the fact of injury itself will be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. The doctrine of res ipsa loquitur applies under the facts in this case. This being true the evidence is sufficient to support a recovery in the absence of any explanation by appellant tending to show that the injury was not due to its want of care.

“The presumption raised by the doctrine of res ipsa loquitur does not require ‘ evidence to the contrary of equal weight ’ to overthrow it, for such presumption is not of itself evidence but arises as a rule of evidence and yields to any contrary proof. Presumptions are never indulged in against established facts. They are indulged in only to supply the place of facts, and as soon as any evidence is produced, which is contrary to the presumption which arose before the contrary proof was offered, the presumption vanishes entirely. The existence of the prima facie case is provisional and does not change the burden of proof but only the burden of introducing* further evidence. It means only that a determination of a fact shall be sufficient to justify a finding of a related fact in the absence of any evidence to the contrary. The only effect is to create the necessity of evidence to meet the prima facie case created, and which, if no proof to the contrary is offered, will prevail.” Bollenbach v. Bloomenthal, 341 Ill. 539.

When such prima facie case is made it becomes necessary for the defendant to introduce evidence which, when taken in connection with the evidence of the occurrences, conditions and circumstances, would overcome the inference that the defendant had failed to exercise due and ordinary care. The burden upon the defendant in such case is not satisfactorily to account for the occurrence, but merely to rebut the inference that he has failed to use due care. Garner v. Chicago Consolidated Traction Co., 150 Ill. App. 149; Stearns v. Ontario Spinning Co., 184 Pa. 519, 39 Atl. 292.

Appellant offered evidence proving the construction of the elevator and of the dump and the methods of operation of elevators and of this particular dump. Mr. Wilkinson went to dump number four to see what had happened immediately after the plaintiff and Cletus Wilkinson came from the elevator on their way to the doctor’s office. He found the right dump log was sticking straight up and down. The left-hand dump was up and solid. The lever was in place and the lock block behind it. He examined the trench or place in the floor where the right log lays when it is in position, and there was nothing in that trench. The left log of the dump was locked. The evidence discloses that the dump and the manner of locking the same were the usual and customary methods in use in elevators in that vicinity. There was nothing broken about the dump and the lever was fastened to the cross beam the same as it had always been. The elevator had been in use that day before the accident.

We are of opinion that the presumption raised under the doctrine of res ipsa loquitur has been overcome, and for that reason the judgment of the circuit court of Christian county is reversed and the cause remanded for another trial.

Reversed and remanded.


author: Mr. Justice Riess

text:
    Keefer Coal Company of Illinois, Appellant, v. The United Electric Coal Companies, Appellee.
    Gen. No. 9,000.

      Heard in this court at the January term, 1937.
    Opinion filed April 16, 1937.
    Rehearing denied October 5, 1937.
    Sims & Stransky, of Chicago, for appellant; Franklin J. Stransky, of counsel.

      Acton, Acton & Baldwin, of Danville, for appellee; W. M. Acton, of Danville, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

The plaintiff, ICeefer Coal Company of Illinois, a corporation, appealed from a judgment in assumpsit entered in the circuit court of Vermilion county in favor of the defendant appellee, the United Electric Coal Companies, a corporation, which judgment found the issues against the plaintiff under its amended declaration and in favor of the defendant in bar of suit upon a trial of said cause without a jury.

Plaintiff sought to recover the amount of certain annual and quarterly instalments of rents and royalties, and interest thereon in the sum of $163,419.20, alleged to be due and payable from the defendant to the plaintiff under the terms and conditions of a certain written lease of coal lands described therein, which instrument was entered into under date of May 1,1923, by William W. Keefer and wife as lessors and Electric Coal Company as lessee. The rights and interests of the lessee were conveyed and assigned to the defendant company on May 4, 1923, and the interests of the lessor thereunder were so assigned to the plaintiff company on March 23, 1924.

Plaintiff’s declaration, as amended, consists of the second amended count and common counts, under which the cause of action was limited by a bill of particulars to matters alleged and set up in the second amended count. A copy of the lease sued on was attached to the complaint, which latter alleged in substance that under the terms of the lease, the defendant was liable to the plaintiff for certain unpaid rentals at the rate of $119,624.28 per annum, payable quarterly in the sum of $29,906.07 during the remaining years of the lease expiring on December 31, 1938; that there so remained due and unpaid to the plaintiff from the defendant certain rentals and interest thereon for a portion of the term of the lease between the years 1925 and 1932 in the 'amount of $119,555.50 unpaid rentals and $43,863.70 interest due thereon, the recovery of which is sought in this proceeding. The complaint contained a number of other allegations concerning the terms of the lease and transactions of the parties thereto.

The defendant coal company in its answer filed by leave of court under the present Civil Practice Act admitted execution and delivery of the lease in question and the subsequent transfer and assignment of the respective interests of the original lessor and lessee to the defendant and plaintiff herein; denied that there is any unpaid rental, royalty, or interest due the plaintiff from the defendant under the terms of the lease as alleged by the plaintiff, and averred that it had made payment in full of all amounts and annual and quarterly instalments of rental due the plaintiff thereunder; admitted that under the terms of the lease, the lessee became liable to pay a royalty of 25 cents per ton on all tonnage mined in excess of 542,857 tons per annum as alleged but averred that it was entitled to a credit under the terms of the lease for the amount of such excess payments, to be thereafter credited on rentals and royalties due in subsequent years in which there was a deficiency in production below such tonnage of 542,857 necessary to meet the fixed annual rentals due and payable quarterly for any such subsequent year during the term of the lease, and further averred that the amount of merchantable coal, surface measurement, as determined by the decision of the arbitrators (since held valid by this court) “was, to-wit: 887.37 acres, instead of 1,000 acres; and that by reason of such decrease the total rental was reduced to $1,674,740, which reduction in rental reduced the annual payments beginning with January 1, 1925, and continuing for fourteen years, to the amount of $119,624.28 per year, and made the quarterly payments $29,906.07” and averred that all said accrued rentals had been fully paid under the terms of the lease.

Defendant further averred that the parties agreed that the proper construction of the lease was as above contended and that the defendant paid to the plaintiff all amounts due under the lease pursuant to said construction of the paragraph now in dispute. The plaintiff replied to the answer denying that the above was the true construction of the language or that such construction had been agreed upon, and alleged the true construction to be as set forth in its answer to defendant’s counterclaim. In addition to its answer, the defendant filed a counterclaim praying certain equitable relief by reforming the lease, which was not granted by the court and no cross errors were assigned thereon; hence the same is not material to the issues herein. In its answer to the counterclaim, the plaintiff set up its contention as to the meaning of the paragraph in dispute and therein conceded the language in question, as written, to be “incomplete, illogical, or unintelligible and did not clearly express the actual agreement and understanding between the parties intended to be expressed thereby.”

This litigation grew out of a mining lease of 1320 acres of land in Fulton county, Illinois, by William W. Keefer, the owner, to the Electric Coal Company, dated May 1, 1923, but actually executed a few days later, whereby the lessor leased the premises to the lessee for the purpose of mining and removing the coal during a period of 15 years and eight months, beginning May 1,1923, and ending December 31,1938. The lessee therein agreed to pay as rent the aggregate principal sum of $2,000,000 to be increased or diminished, however, at the rate of $2,000 per acre, if there were an overplus or deficiency in acreage of merchantable coal in the premises to be determined by survey or arbitrators in the manner provided for in the lease.

The rent was to be paid in instalments: $25,000 on or before January 1, 1924; for the remaining eight months of 1923; $75,000 on or before January 1, 1925, for 1924; and $135,714.38 each succeeding year, payable in quarterly instalments of $33,928.57, beginning April 1, 1925, and so continuing* during the remainder of the term ending on December 31, 1938. The rent of $2,000,000 was predicated upon a tentative estimate of 1,000 acres of merchantable coal, surface measurement, underlying the premises leased, valued at $2,000 per acre, and it was agreed that upon uncovering* the coal a complete survey of the leased premises would be made by engineers of the parties to determine the quantity of merchantable coal in the premises, and if the survey showed more than 1,000 acres of merchantable coal, surface measurement, in the premises, the lessor should be paid by the lessee additional rent therefor at the rate of $2,000 per acre, and if the survey showed a deficiency of merchantable coal, a deduction would be made from the rent reserved of $2,000 an acre. Should any question arise between the parties as to the quantity of merchantable coal, provision was made in the lease for submitting the question to arbitration.

Brief reference to former litigation concerning the above lease will aid materially in clarifying* the issues arising herein. In the case of United Electric Coal Companies v. Keefer Coal Company, 249 Ill. App. 222, this court affirmed a decree of the lower court enjoining the forfeiture of the lease in question for failure to pay rentals alleged to be in default until the amount of merchantable coal upon which rental was so payable could be ascertained and determined by the arbitrators to whom the question had been submitted by the parties under the terms of the lease. Subsequently, in the case of United Electric Coal Companies v. Keefer Coal Company, 338 Ill. 288, the construction of paragraphs 1 and 2 of the lease contract were in issue. The cause so pending on appeal was transferred from the Supreme Court to this court on the ground that a freehold was not involved, and in that controversy, this court reversed a decree of the trial court and sustained the decision of the board of arbitrators, which had found and fixed the quantity of merchantable coal upon which rental was payable at the rate of $2,000 per acre under the terms of the lease to be 887.37 acres, and held that as to “the matter in dispute” there was “no ambiguity in the contract ’ ’; namely, the amount of merchantable coal and of rents payable under the provisions of said paragraphs. United Electric Coal Companies v. Keefer Coal Company, 261 Ill. App. 246.

In passing upon the question of whether or not the lower court erred in finding and adjudging that no rentals remained due and unpaid from the defendant to the plaintiff under the terms of the lease at the time the present suit was instituted, it becomes necessary to construe the language and meaning of section 3 of the lease, which provides as follows:

“If in any one or more years of this lease, the Lessee mines and removes from the leased premises tonnages of coal in excess of the following yearly tonnages, to-wit:
“(a) During the remainder of the year 1923— 100,000 tons.
‘ ‘ (b) During 1924 — 300,000 tons.
“ (c) During 1925 and the years succeeding, 542,857 tons each (a ton being 2,000 pounds) then and in that event the Lessee shall pay to the Lessor as additional rent for each such year in which the yearly tonnage above stipulated is exceeded, the sum of twenty-five cents (250) per ton for each and every ton of coal mined by the Lessee from the leased premises in excess of the said yearly tonnages hereinabove set out. Such additional rent shall be paid by the Lessee to the Lessor on or before the 15th day of January immediately following the close of the year for which such additional amount is due and payable. But the Lessee, in the event of its having to pay any such additional rent in any year or years during the term hereof, shall have the privilege during any succeeding year or years of this lease in which like additional rental amounts may accrue and be payable hereunder by reason of mining in excess of the said stipulated tonnages, of taking credit against such additional amounts thus due and payable for such succeeding year or years in an amount equal to the additional payment or payments theretofore made, such adjustments to be made on the said 15th day of January of each year.”

The defendant, United Electric Coal Companies, contended that said section 3 of this disputed clause means that, if in any year after 1924, the United Electric Coal Companies mined more than 542,857 tons of coal and paid for said excess at the rate of 25 cents per ton, that they could at any time thereafter take credit as against the specified payments provided in the lease in some subsequent year or years in which there was less than 542.857 tons of coal mined.

The plaintiff, Keefer Coal Company, contended that this section 3 means that if in any year, after 1923 and 1924, there was a tonnage of coal mined by the lessee in excess of 542,857 tons, that for that year, being the first year in which there was an excess over the stipulated minimum tonnage mined as provided in said section 3, the lessee (the defendant) should pay for the excess coal mined at the rate of 25 cents a ton in addition to the specified payments provided in the lease; and that if there was a deficiency in mining below 542.857 tons in a subsequent year or years, during the life of the lease, and then thereafter another year or years in which the coal mined exceeded the 542,857 tons as specified, then in said subsequent year or years only in which there was coal mined in excess of 542,857 tons after the said deficiency in mining had intervened, the defendant could take credit for said deficiency against the said excess payment so due in said subsequent year or years; not to exceed, however, the amount of the excess paid in by the defendant during the said first year in which coal was mined in excess of 542,857 tons.

It is apparent that the latter part of section 3 is. ambiguous and that its meaning is not' clear, which fact is recited by both parties to this suit in their pleadings and shown by the evidence. The meaning of the words and the testimony offered by the parties as to surrounding facts and circumstances in the light of which the language is sought to be construed was sharply controverted at the trial.

Where the court, on preliminary examination, has determined that a contract is ambiguous or incomplete, extrinsic evidence, including evidence of the acts and conduct of the parties tending to show their interpretation of the contract is admissible to ascertain its true intent and meaning. Where the facts are controverted, the meaning of the language of a written contract is a question of fact, and in cases where the court is unable to determine the meaning of the contract, and it is necessary to receive extrinsic evidence to determine what the contract is, the court, if such evidence is contradictory, should submit the question of fact to a jury. Schneider v. Neubert, 308 Ill. 40; Chicago Daily News, Inc. v. Kohler, 360 Ill. 351; Turner v. Osgood Art Colortype Co., 223 Ill. 629; American Ins. Co. v. Meyers, 118 Ill. App. 484.

In the case of Chicago Daily News, Inc. v. Kohler, supra, at page 363, the court, in passing upon the construction of a contract wherein the terms were ambiguous, stated that “the meaning of a written contract is ordinarily a question of law and not one of fact. If, however, the construction of the agreement is dependent not only upon the meaning of the words employed but also upon extrinsic facts and circumstances or upon the construction which the parties themselves have placed upon the contract, and the facts are controverted, the inference to be drawn is for the jury. (Turner v. Osgood Art Colortype Co., 223 Ill. 629.) ”

This suit was tried before the court without a jury, and the finding of the trial court is entitled, on review, to the same weight of the verdict of a jury, and if the evidence is contradictory, such finding will not be reversed on appeal, unless it is contrary to the manifest weight of the evidence. People ex rel. Drainage Commissioners v. Chicago & E. I. Ry. Co., 258 Ill. App. 535, 540; F. B. Miller Agency, Inc. v. Home Ins. Co., 276 Ill. App. 418, 431; Moore v. Molloy Co., 222 Ill. App. 295, 298; MacCracken v. First Nat. Bank of Wheaton, 204 Ill. App. 20; Broderic v. O’Leary, 112 Ill. App. 658.

It appears from the evidence that on March 18,1924, William W. Keefer and Sarah Keefer, lessors named in the original lease and the Keefer Coal Company entered into a written escrow agreement with the defendant company, by the terms of which the payment of rents and royalties provided for in the lease were assumed by the defendant company as assignee, and the lessors and Keefer Coal Company sold the leased premises to the defendant company, conditioned on the payment of said rents and royalties, which escrow agreement and a warranty deed conveying title in fee simple to said premises was delivered in escrow to a certain bank therein named for delivery to the defendant company upon compliance with the terms of the lease. The escrow agreement further specified that at any time after two years from its date, the defendant company was given the right to anticipate payments of rentals specified in the lease by paying the bank the present worth of the remaining rentals commuted on a 3% per cent basis, in which event the lease would terminate and immediate delivery of the deed in escrow would be made to the defendant company.

It is also clear from the evidence and statements and admissions of the parties that the provision in clause 3 of the lease with reference to additional amounts to be paid at the rate of 25 cents per ton for all coal mined in excess of the amount therein specified for the year 1925 and succeeding years, was so inserted in the lease for the purpose of protecting the lessor against removal of all coal from the land during the early part of the term of the lease, and thereby impairing or endangering the security of the lessor during the latter years of the term in which subsequent payments of yearly rentals were to become payable under the terms of the lease.

After entering into the lease contract, the evidence shows that the defendant began the payment of the annual cash rentals provided for in the lease on the tentative basis of 1,000 acres of merchantable coal at the rate of $2,000 per acre; it so paid the fixed rentals for 1923, 1924, and 1925, and also paid before January 15,1926, an additional royalty for the year 1925 of 25 cents per ton on all tonnage mined in excess of 542,857 tons referred to in the lease; that during the year 1926 and the first half of the year 1927, it so paid the cash rentals in addition to the excess royalties provided for on excess tonnage mined during said years. The annual rental of $135,714.28 referred to in the lease was based upon yearly payments on 1,000 acres of merchantable coal during that portion of the lease covering the years 1926 and 1938, inclusive. After the acreage was finally ascertained and determined by the arbitrators to be 887.37 acres in their decision which was sustained by this court, the yearly payments were decreased to $119,624.28, payable in quarterly instalments of $29,906.07 during the latter 14 years of the term of the lease; previous credits at the higher rate having reduced the total balance of rentals so payable in 14 annual instalments to $1,674,740.

Under the construction of paragraph 3 of the lease as claimed by the defendant and as determined by the court below, the cash payments together with the excess tonnage mined in previous years credited against the deficiency under the amount of 542,857 tons mined in all subsequent years equalled the full amount of rentals and royalties due the plaintiff from the defendant under the terms of the lease to the date of July 1, 1935. The credits stipulated in evidence by the parties as having been so made aggregated the gross amount of $1,356,054.94; thus leaving subsequent rentals and royalties to be met and paid on the basis of $119,624.28 per year, payable quarterly, during the remainder of the term of the lease which expires on December 31, 1938.

It also appears that the amount of coal removed from the mine by the defendant prior to July 1, 1935, aggregated in amounts stipulated by the parties a gross tonnage of 3,968,838 so mined at 25 cents royalty per ton, and amounted to $992,209.50. It thus is apparent that the royalty value of all coal removed under the terms of the lease was far less in rental value than the amount of the rents and royalties received by the plaintiff from the defendant prior to July 1, 1935, and that the plaintiff was thus amply secured against excess removal of coal which might otherwise jeopardize in any manner the payments of the remaining rents or royalties annually falling due before the expiration of the term of the lease.

Under the construction placed upon the contract by the plaintiff the defendant would not be entitled to any credit for the excess tonnage produced during the years 1926, 1927, and 1928, as against deficiencies in production under the amount of 542,857 tons per year during the succeeding years of 1929 to 1935 or any subsequent years of the lease, except in a year or years which might thereafter show an excess of production, whereby the plaintiff would be enabled to collect the fixed rentals in cash during all subsequent years without giving credit for excess payments so made during previous years of the contract, and to thus accelerate the collection of annual rentals contrary to the terms and intent of the instrument when construed in its entirety. Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, 96.

The intent of the parties as further expressed in the escrow agreement, which was made subsequent to the lease, gives the defendant the valuable optional privilege of commuting the payments during the latter years of the contract on a basis of 3% per cent less than the remaining unpaid instalments of rental provided for. When construed together, it is clear that this optional privilege given to the defendant is the only provision made by the parties for accelerating payments under the terms of the lease therein referred to, beyond the amount necessary to protect the plaintiff in collection of subsequent unpaid rentals. We have said in Pennsylvania Retreading Tire Co. v. Goldberg, 224 Ill. App. 241, at page 247, that “this court is loath to place a construction upon a contract which would permit one party to receive all the benefits, but deny the payment of the consideration to the other party on the ground that it was indefinite and uncertain.”

In the case of Minnesota Lumber Co. v. Whitebreast Coal Co., supra, at page 92, involving the construction of an ambiguous coal contract, Mr. Justice Magruder used the following language: “Contracts should be construed in the light of tHé circumstances surrounding the parties, and of the objects which they evidently had in view. The circumstances, which both parties had in view at the time of making the contract, may be referred to for the purpose of determining the meaning of doubtful expressions. Courts will seek to discover and give effect to the intention of the parties so that performance of the contract may be enforced according to the sense in which they mutually understood it at the time it was made; and greater regard is to be had to their clear intent than to any particular words which they may have used to express it. (Doyle v. Teas, 4 Scam. 202; Torrence v. Shedd, 156 Ill. 194.)”

In construing an agreement in question in Lehmann v. Revell, 354 Ill. 262, at page 284, Mr. Justice Shaw, in delivering the opinion of the court, there said that: “We have frequently held that technical or grammatical construction must give way to the intention of the parties, and that the language used must be considered in the light of the surrounding circumstances. ’ ’

The testimony further shows that at the time of the hearing when the disputed questions concerning the amount of acreage on which rental was payable were submitted to the arbitrators, one of them, Arbitrator Slade, read the latter portion of clause 3 in the presence of H. A. Swallow, president of defendant company, and W. W. Keefer, original lessor and president of plaintiff company, and inquired if there was any dispute concerning the meaning of the language used. Witness Swallow gave his understanding of the meaning of the language as follows: “I think that means that if at any year we mined less than 542,857 tons, we would be credited on the payment by reason of any prior payment we made on the excess year.” Then Mr. Slade (one of the three árbitrators) said: “I wanted to see whether that was perfectly clear. Is there any difference between you in figuring the amount?” And Mr. Swallow said: “No.” And then Mr. Keefer said: ‘ ‘ That clause there at the beginning of this paragraph seems to be a little ambiguous, but Mr. Swallow, Mr. Baker and myself finally construed it satisfactorily.” Mr. Slade then said: “Then there is no dispute there!” Mr. Keefer then said: “No.” Swallow was corroborated in his testimony by the reporter, who had her original notes of what transpired at the hearing before the board of arbitration.

Witness Swallow further testified that on December 10,1925, he met Keefer at the William Penn Hotel in Pittsburg; that Keefer inquired as to what was in the contract, and that he read paragraph 3 to him, and inquired of Keefer what his understanding of this paragraph was, and that Keefer replied, “My understanding is, that if in any year you mine more than the minimum, you are entitled to credit on any deficiency in subsequent years.”

Plaintiff’s attorney, Baker, who had written both the lease and the escrow contract, was present at this conversation at Keefer’s request and wrote a letter to Keefer, upon return to his office, in which he stated that under the terms of the lease, the defendant could not charge for deficiencies for the years 1923 and 1924 out of the excess mined in 1925, and “that taking of any credit for an additional payment” was “only available during succeeding year or years, that is, years succeeding the year 1925.” A copy of this letter was mailed to the plaintiff and was an exhibit in evidence. It thus appears that Baker as attorney for plaintiff, had discussed the construction of clause 3 with both parties at the meeting between Swallow and Keefer at the hotel; that at the request of Keefer, he wrote Keefer as to his understanding of said clause. His construction at that time apparently was accepted by both parties and was in accordance with their declared understanding before the arbitrators in June, 1927, all of which was long prior to the filing of the suit herein. It also accorded with the original purpose for which the clause was inserted. In their oral testimony at the trial, Baker and Keefer denied making the foregoing statements and denied that they had ever consented to the construction of the clause as claimed by defendant. The evidence on the facts was in sharp conflict and is within the province of the trial court to pass upon its weight and probative value. Moore v. Molloy Co., 222 Ill. App. 295, 298; People ex rel. Drainage Commissioners v. Chicago & E. I. Ry. Co., 258 Ill. App. 535, 540; Schneider v. Neubert, 308 Ill. 40, 43.

In the construction of contracts for the purpose of ascertaining the intention of the parties, the court will endeavor, by extrinsic evidence of such facts as the parties had in view, to place itself as nearly as possible in their position, so it may understand the language used in the sense intended by them. In seeking to ascertain the intention, regard will also be had to the practical construction, if any, which the parties, by their acts, have given the contract. So also, the acts of the parties themselves, indicative of their construction placed upon it, may be resorted to for the purpose of determining the true meaning of the written agreement and in this regard it makes no difference whether such acts are contemporaneous or subsequent. Moreover, where the contract is, in fact, understood by one of the parties in a certain sense and the other party knows that he so understands it, then the understanding is to be taken in that sense, provided this can be done without making a new contract between the parties. Smurr v. Kamen, 301 Ill. 179; Weger v. Robinson Nash Motor Co., 340 Ill. 81.

“Where the terms of an agreement are in any respect ambiguous, and the parties have by their own acts placed a reasonable construction upon them, their interpretation will be adopted by the Court. ’ ’ Chicago Daily News v. Kohler, supra; Burgess v. Badger, 124 Ill. 288; People v. Murphy, 119 Ill. 169; Schneider v. Neubert, supra.

In the case of Slack v. Knox, 213 Ill. 190, the court said, “It is permissible in construing a contract to look to the interpretation that the parties thereto have placed thereon in its performance, for assistance in ascertaining its true meaning. ‘No extrinsic aid can be more valuable.’ ”

In this case, the mooted clause was placed in the contract at the instance of the plaintiff and for Ms benefit and the contract was drawn by Ms attorney. In the case of Pennsylvania Retreading Tire Co. v. Goldberg, supra, at page 247, we said “The contract was drawn by defendant’s attorney. Defendant was therefore responsible for the language used, and if there is any ambiguity in the language it would seem to devolve upon the defendant to give an explanation of it. Moreover, courts will always, if possible, construe a contract so as to give effect to it and make it enforceable.”

“The language of a contract where it is doubtful and uncertain in its meaning should be construed most strongly against the party preparing it. ’ ’ Evangelical Lutheran St. S. Cong. v. Bishop, 213 Ill. App. 137; Costello v. Delano, 274 Ill. 426; Conway Co. v. Chicago, 274 Ill. 369.

Plaintiff appellant, in its brief, now contends that the decision in the case of United Electric Coal Companies v. Keefer Coal Company, 261 Ill. App. 246, is res judicata of the issues on the question of the construction of the meaning of section 3 of the lease. By no pleading nor answer in the lower court was this set forth or relied upon as a bar. A former adjudication cannot be asserted without pleading it. Svalina v. Saravana, 341 Ill. 236; People v. Oakridge Cemetery Corp., 328 Ill. 53. Moreover, a careful reading of our opimon in that case clearly discloses that no construction of paragraph 3 was had and no reference thereto was made in the findings or decision of the arbitrators therein referred to.

This court, in the recently reported case of Wright v. Logan, 288 Ill. App. 481, at page 491, reiterated the well settled rule of law in Illinois that “to constitute a bar, a former adjudication must have been upon a matter actually at issue, the determination of which was essential to the decree, and it must conclusively appear that the matter was so at issue, that it was necessarily determined by the Court rendering the decree which is interposed as a bar, by reason of such estoppel. ’ ’ Fineman v. Goldberg, 329 Ill. 507, 511; White v. Sherman, 168 Ill. 589. The opinion in the former litigation referred to by the plaintiff, supra, did not undertake to pass upon the mooted language or provisions of section 3 of the lease.

The trial court, in passing upon and construing the ambiguous language contained in the third paragraph of the lease in question, heard the conflicting- evidence offered by the respective parties concerning* the intent and meaning- thereof in the lig’ht of all the surrounding facts and circumstances in evidence and found the intent of the parties as set forth in the instrument to be as contended by the defendant and that under such construction the plaintiff had been paid in full all rentals and royalties due under the terms of the lease at the time of the disposition of the cause and accordingly entered a judgment in favor of the defendant in bar of suit. Under the law and the evidence, we cannot hold that the finding of the trial court on the controverted questions of fact was contrary to the manifest weight of the evidence, upon which the judgment was rendered, and having- reviewed the entire record in the (tase, this court holds that no reversible error appears therein. The judgment of the circuit court of Vermilion county will therefore be affirmed.

Judgment affirmed.


text:
    Beatrice Creamery Company, Appellant, v. Harold Fisher and Kenneth DeLong, Appellees.
    Gen. No. 9,044.
    Heard in this court at the January term, 1937.
    Opinion filed April 16, 1937.
    Rehearing denied October 5, 1937.

      Dobbins, Dobbins, Barr & Thomas, of Champaign, for appellant; James A. Solon, of Champaign, and John J. Bresee, of counsel.
    Green & Palmer, of Champaign, and Lord, Lloyd & Bissell, of Chicago, for appellees; Henry I. Green, of Champaign, C. E. Stone, of Peoria, L. Duncan Lloyd and Burnham M. Fisk, both of Chicago, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment entered in the circuit court of Champaign county in favor of the defendants, upon trial of the case without a jury:

The action is one of assumpsit to recover for the loss of a cargo of butter and eggs, which was loaded on a truck owned by the defendants, on October 12, 1933, to be transported from Champaign, Illinois, to New York City and Worcester, Mass. While the truck was traveling near Beynold, Indiana, the drivers were' forcibly taken from the truck by four armed men. The truck was found abandoned and was recovered northwest of Chicago about three days later, but the entire cargo was gone.

It is contended by the plaintiff appellant that: (1) The defendants were common carriers, and as common carriers were liable as insurers of the cargo in question. (2) If the relationship between the plaintiff and defendants was only that of bailor and bailee, as private carriers, the defendants are still liable for the loss of the cargo for the reason that they failed to show a valid legal excuse for nonperformance of their contract to deliver the shipment to its place of destination.

The defendants, Harold Fisher and Kenneth DeLong, were engaged in the carriage of goods and chattels from and to Champaign, Illinois, by motor truck. It appears from the evidence that they solicited business from several concerns.

When a contract for hauling was entered into, they agreed with the prospective customer on rates. When a cargo was hauled to New York, the defendants usually arranged to bring back a cargo of goods from some eastern concern.

The plaintiff first began shipping by the defendants ’ trucks in September, 1932, and the carrying charges were determined by using the approximate railroad rate in force at the time of shipment. The defendants carried cargo insurance, but inasmuch as their trucks were mortgaged, the plaintiff insisted that the various cargoes be insured in the name of the plaintiff against loss from any cause, and that the defendants pay the premium on the insurance policy out of the carrying charges. The trips by the defendants were made at about weekly intervals, each transaction being a sep- . arate contract; the whole freight charge being paid in advance, and the plaintiff insuring each cargo, and deducting the premium from the amount paid to the defendants from the' transportation charges agreed upon.

Whether or not the defendants were common carriers was a question of fact, dependent upon the nature of the business in which they were engaged, and was to be determined from a consideration of all of the evidence.

The manager of the plaintiff,.company testified that the defendants talked with him about transporting-plaintiff’s butter and eggs to Boston and New York by truck. After some negotiation, the plaintiff consented to try this method of shipping its produce, and made a contract with the defendants whereby they were to transport a load of goods to a designated point. Each time the defendants took a cargo for the plaintiff, a special contract for its carriage was entered into by the parties. When a cargo was hauled for the plaintiff, no other goods were hauled for any other person. In other words, the defendants did not hold themselves out to carry for the public generally. They only operated their trucks when they had a special contract to do so, and they maintained no fixed rates nor published schedules. In order to have a load to carry on the return trip to Champaign, the defendants entered into contracts at different times with eastern companies to carry certain goods for them to Chicago, and in several instances for other consignors to other points under special contracts only. The charges made for hauling for these companies depended on the agreement reached between the defendants and the company. On the front of the trailer appeared the words: “Fisher and DeLong, Champaign, Illinois, Chicago, Boston, New York.” In the State of Ohio they were required to take out a license as carriers on the State highways over irregular routes, but never picked up nor delivered any goods nor transacted any business in that State. They were neither required to nor did they have license as public carriers in Illinois or any other State. They refused on several occasions, when so requested, to carry suitcases or parcels for students and other persons on their trips. The defendants had no freight station or loading depots, either in Champaign or any other place where the goods might be delivered. The route over which they operated had no fixed termini, and they followed no definite route.

When the plaintiff affirms and the defendant denies that the defendant is a common carrier, the question becomes a controverted question of fact to be determined by a consideration of the evidence by the trial court. Rathburn v. Ocean Acc. & Guar. Corp., Ltd., 299 Ill. 562; Bare v. American Forwarding Co., 242 Ill. 298; Hinchliffe v. Wenig Teaming Co., 274 Ill. 417.

It is contended by the plaintiff that if one is a common carrier, the mere fact that he charges different rates for different cargoes will not make him a private carrier, nor will he cease to be a common carrier when he does not make a regular trip between fixed termini, nor will the fact that he hauls only certain goods, such as coal, grain, or some other commodity, change his status from a public carrier to a private carrier. While some of these elements may appear in a given case, it remains that each case must be decided in the light of all the surrounding facts and circumstances in evidence.

When a carrier does not maintain either published rates or schedules, regular trips, fixed termini, or freight depots, and refuses divers shipments offered, it is persuasive evidence that he does not hold himself out to serve the public generally.

The trend of authorities in Illinois holds that a common carrier is one who undertakes for the public to transport from place to place such persons or the goods of such as choose to employ him for hire. Transformer Corp. of America v. Hinchliffe, 279 Ill. App. 152; Rathburn v. Ocean Acc. & Guar. Corp., Ltd., supra; McCusher v. Curtiss Wright Flying Service, Inc., 269 Ill. App. 502.

The real test is whether or not the carrier serves all of the public alike, who apply to him for carriage. This distinction is thoroughly discussed in the case of Rathburn v. Ocean Acc. & Guar. Corp., Ltd., supra, and authorities cited therein.

In the instant case the cargo in question was being transported by the defendants under a special contract with the plaintiff, which provided for the carrying of insurance by the plaintiff at the cost of the defendants. Upon considering all of the facts and circumstances in evidence, we are constrained to hold that the trial court did not err in finding that the defendant was not acting as a common carrier but was acting as a private carrier or bailee under special contract at the time the cargo was taken.

While it is pointed out that the loss under the insurance policy was fully paid to the consignor, it cannot be seriously contended here, nor did the lower court hold that this fact was material to the issues in this case. Byalos v. Matheson, 328 Ill. 269.

All persons who undertake for hire to carry the goods of another are either private or common carriers. Private carriers, like ordinary bailees for hire, are liable only for injury or loss of the goods intrusted to them when it results from failure on the part of themselves or their servants to exercise ordinary care. Common carriers are liable as insurers, for all injuries or loss not resulting from the act of Grod or the public enemy. Hinchliffe v. Wenig Teaming Co., 274 Ill. 417, 422.

As bailees for hire, the defendants were not insurers of the safe delivery of the cargo given in to their care, but were obliged to exercise ordinary care and diligence and be free from negligence in safely carrying and making delivery of the goods intrusted to their care under the contract entered into by them. Hinchliffe v. Wenig Teaming Co., supra; Langendorf Clothing Co. v. Fara, 272 Ill. App. 160.

In the case of Langendorf Clothing Co. v. Fara, supra, this court held that “under the old common law rule, a bailee was not liable for theft, acts of Grod, or the public enemy, or where the goods were taken by violence. This rule, however, has been modified, but the bailee is still not liable for theft unless this occurred through his negligence. ’ ’

The well settled rule as to the liability of a bailee for hire was aptly stated in an opinion .by Mr. Justice Jones, reported in the case, of Beard v. Haskell Park Bldg. Corp., 248 Ill. App. 467, at page 473, wherein this court held that “It is well settled that a bailee for hire is not an insurer but owes the bailor a duty of ordinary care. As bailee, appellant was bound to exercise such care and diligence as every prudent man takes of his own goods of like character. Ordinary diligence means that degree of care, attention, or exertion, which under the circumstances, a man of ordinary prudence and discretion would use in reference to the particular thing, were it his own property. . . . The bailor in all instances must prove that the bailee was negligent; but when he shows that the goods which he intrusted to the bailee’s care were not delivered upon demand, he has made out a prima facie case or created a presumption of negligence which the bailee may overcome by offering evidence to show that he was not negligent. It is also the rule that where the failure to deliver is explained by the fact that the goods have been stolen, or destroyed by fire, and the bailee is no longer able to deliver them, the law will not presume negligence, and the onus or burden of proving the same is upon the bailor.”

The evidence clearly shows that the defendants were in the process of transporting the plaintiff’s g’oods in the defendants’ truck, when a car containing four armed men forced the defendant DeLong and his relief driver to get out of the truck and turn it over to them and took from the person of defendant DeLong $50 in money. Two armed men had gotten upon the running boards and forced the occupants to leave the. truck and kneel with their faces down upon the rear seat cushion of a sedan, later forced one to go into an adjoining cornfield under armed guard while the other was forced to change a punctured tire, and subsequently, at the northwestern outskirts of Chicago, they were forced to leave the car. They thereupon walked to a farmhouse where they telephoned to the sheriff and the owner about the robbery, and the empty abandoned truck was found and recovered three days later. Can it be said under this uncontradicted state of facts that the defendant and his driver failed to exercise due care for the safety of the cargo in question! The trial court held to the contrary, in which holding on the facts this court concurs.

The plaintiff made a prima facie case when he put in evidence the acceptance of the goods by the defendants in proper condition, and a failure by defendants to deliver the same. A prima facie case thus made created a presumption of negligence on the part of the bailee, which may be overcome by offering evidence to show that it was not negligent, and if it produces such evidence, the bailor, in order to make a case, must show that the bailee was, in fact, negligent, and that its negligence caused the loss or contributed thereto. Miles v. International Hotel Co., 289 Ill. 320; Beard v. Haskel Park Bldg. Corp., supra.

Upon consideration of the whole of the record in this cause, we find no error that would justify a reversal of the judgment. Accordingly the judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Huffman

text:
    Nicholas Bride et al., Appellants, v. Joseph W. Stormer et al., Appellees.
    Gen. No. 9,225.

      Heard in this court at the May term, 1937.
    Opinion filed June 30, 1937.
    Rehearing denied October 7, 1937.
    Ernest J. Henderson, of Minonk, Orman Ridgely, of Eureka, Nathan Weiss and C. R. Birkett, both of Peoria, for appellants.
    C. L. Conder, of Pekin, and George W. Hunt, of Peoria, for appellees.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is a foreclosure proceeding brought by appellants, who were the holders of notes secured by a trust deed on certain real estate. The right of foreclosure is not in dispute. It appears that at a sale of the lands herein, made by the master pursuant to a foreclosure decree, the lands were sold to Stormer, who later received a master’s deed therefor. After Stormer became the owner of the premises under the master’s deed, he executed four notes aggregating $12,000, payable to himself, and indorsed by him. These notes were secured by a trust deed on the said lands. Henry Denhart was named as trustee in the trust deed. Den-hart was president of a banking corporation composed of himself, Frank W. Hopps-and H. A. Kingsbury. Their bank operated under the corporate name of Henry Denhart & Company.

The above notes were issued by Stormer under date of March 5, 1925. The appellants became the owners of the several notes in due course. The notes became in default and this foreclosure suit was commenced by appellants in April, 1931. On April 11, 1930, the bank of Henry Denhart & Company was closed by the auditor of public accounts, and subsequently placed under receivership for the purpose of liquidating and winding up its affairs. Stormer had been an employee of that bank for about 22 years. Appellants in their foreclosure suit made the receiver of the bank a party defendant, and also made the three owners of the bank parties defendant, but as to them prayed for no relief. As to Stormer and the receiver of the bank, appellants prayed for the fixing of the amount due them under their notes, for a sale of said premises under the trust deed, the proceeds thereof to be applied upon the satisfaction of their debt, and in case of any deficiency, that a decree therefor be entered against Stormer and the receiver of the bank.

Appellants claim that Stormer, in the purchase of the land, was acting for and on behalf of the bank and that the notes he issued were issued as accommodation paper for the bank; that the bank was the actual owner of the premises and liable upon the notes, and that they were in truth and in fact the obligation of the bank. The receiver answered disclaiming any interest in the premises and denying all allegations-going toward the liability of the bank. The cause was referred to the master, who found that Stormer was acting for and on behalf of the bank, that the debt was that of the bank, and that it was the owner of the equity in the premises to which Stormer held the legal title. The master found that Stormer executed the notes as an accommodation maker for the bank; that he held the legal title in trust for the bank; that the bank was primarily liable on the notes; that a conditional deficiency decree should be entered against the bank; and that Stormer should convey the legal title to the land to the receiver. Objections were filed to the master’s report, which were overruled with respect to the controlling features of the case now before this court. The objections as filed were permitted to stand as exceptions. In general, the trial court confirmed the master’s report in all respects except as to the power to grant a deficiency decree against the receiver of the bank. It is impossible within the limits of this opinion to discuss the objections of the several parties, as the receiver had 70 objections before the master, in addition to those filed by appellants. Upon sale of the premises, a deficiency resulted in the sum of $16,550.65. The court denied a deficiency judgment against the receiver of the bank, granting same against Stormer alone. It is from the refusal of the court to grant a deficiency judgment against the receiver of the bank that appellants have prosecuted this appeal.

Appellee urges that in a foreclosure proceeding, a deficiency decree cannot be had ag’ainst a beneficial owner of the land, when such person- did not sign the notes' secured. It is the position of the appellants that such- is a proper procedure and within the power of the court upon a foreclosure proceeding. It is therefore-apparent that the controversy in this case makes it necessary to determine the rights of appellants to a deficiency judgment against a third party who did not sign the notes, before the other points raised become material.

The deed of trust was that of Stormer’s. The notes involved were signed by him. Nothing is to be found therein obligating the bank to pay his notes. Appellants accepted Stormer’s notes as they were executed. The real security was the property pledged for their payment by the trust deed. Under such circumstances, the bank was not rendered liable on the notes. Sporing v. Dittmeier (Mo. App.), 213 S. W. 176. Under the statute in this State (Ill. State Bar Stats. 1935, ch. 98, U 38; Jones Ill. Stats. Ann. 89.038; ch. 98, sec. 38, Smith-Hurd 1935, being par. 18 of the Negotiable Instruments Act), no person is liable on a note whose signature does not appear thereon, except as therein otherwise expressly provided. The facts in this case do not bring it within any exception made, and under the above provision of statute, one whose name does not appear on a promissory note cannot be held liable thereon. This rule is recognized in jurisdictions where a similar provision of statute has been adopted. First State Bank of Phillipsburg v. Mussigbrod, 83 Mont. 68, 271 Pac. 695; Harvey v. Dwyer, 109 W. Va. 676, 158 8. E. 523; Donner v. Whitecotton, 201 Mo. App. 443, 212 S. W. 378; Young v. Bray, 54 Mont. 415, 170 Pac. 1044. To hold otherwise would be to hold contrary to the express provision of statute. There is no claim here that this was a joint or partnership venture by Stormer and the bank, in which they were mutually interested.

We know of no way to distinguish between the mortgage debt as a whole, as evidenced by the notes, and a deficiency judgment, which necessarily is also based upon the same notes. We do not perceive wherein the fact that the mortgaged property does not sell for enough to discharge the entire debt serves in any way to alter the notes thus secured. A deficiency decree is not based upon the lien of the mortgage, but upon the personal liability to pay the full amount of the indebtedness. It arises by virtue of the debt, and it appears that such a creditor is on the same footing as any other judgment creditor. Strause v. Dutch, 250 Ill. 326, 331; Crowder v. Scott State Bank of Bethany, 365 Ill. 88, 91, 92. A foreclosure in equity is in the nature of a proceeding in rem, and is not intended ordinarily to act in personam. Without the aid of the statute (Ill. State Bar Stats. 1935, ch. 95, ¶ l8; Jones Ill. Stats. Ann. 83.18), a mortgagee would be remitted to an action at law upon the note for a deficiency. Lewis v. Matteson, 257 Ill. App. 1, 5.

It is generally considered, except in States having an express provision of statute to the contrary, that the holder of a mortgage cannot join a third party claimed to be liable for the debt, with the mortgagor, in an action of foreclosure, for the purpose of obtaining a judgment for a deficiency against him. This rule was recognized in this State as far back as the case of Walsh v. VanHorn, 22 Ill. App. 170. A similar holding is to be found in Christensen v. Niedert, 259 Ill. App. 96, 103, 104, 105; Shiel v. Chicago Title & Trust Co., 262 Ill. App. 410; Elkhart State Bank v. Schlarman, 270 Ill. App. 440, 452 (certiorari denied); and Nelson v. Zemans, 275 Ill. App. 447, 456.

Appellee filed a motion to dismiss the appeal. In view of the fact the decree is affirmed, we do not consider a disposition of the motion necessary. Neither are the points raised in the cross appeal considered necessary in the disposition of this case, as made.

For the reasons above assigned, the decree is affirmed.

Decree affirmed.