author: Mr. Presiding Justice Shurtleee

text:
    John R. Jones, Plaintiff in Error, v. Charles A. Taylor et al., Defendants in Error.
    Gen. No. 8,443.

      Opinion filed April 14, 1931.
    Peter Murphy, for plaintiff in error.
    Harold F. Trapp and Robert R. Humphrey, for defendants in error.
   Mr. Presiding Justice Shurtleee

delivered the opinion of the court.

In this case we substantially adopt the statement made by defendant in error, to which no criticism has been presented to this court. The facts are somewhat complicated and for convenience the statement has been subdivided in an effort to make the facts clear.

The Bill and Cross-bill

When Jones filed his original bill for partition, the 100 acres subject to the mortgage was owned by himself and defendant in error Dr. Charles B. Taylor. Dr. Taylor filed his answer and cross-bill setting up facts to exonerate his 50 acres as against Jones. Subsequently and shortly before he became incapacitated, Dr. .Taylor conveyed all his interest in the land to his daughter, Georgie Belle Humphrey, by warranty deed. Georgie Belle Humphrey filed her intervening petition and became party defendant. Thereafter she filed her answer and cross-bill setting up her title, and setting up facts to exonerate her land as against Jones, and prayed partition on her cross-bill. Except as to the equities of the burden of the mortgage, the bill and the cross-bill are in agreement as to interests of tenants in common in said farm.

The Mortgage

In June, 1917, one George O. Taylor owned the Ferguson farm of 200 acres. Then he deeded the undivided half of his farm to his two brothers, James C. Taylor and Zachariah T. Taylor, Sr., of Elkhart, Illinois. These two brothers then executed a mortgage on their undivided 100 acres to said George O. Taylor to secure 12 notes, each for $1,000, all payable to George O. Taylor, one due in 1918 and one in each succeeding year up to and including 1929.

The Mortgage Notes

All parties concede the first two notes in 1918 and 1919 were paid and canceled in the lifetime of George O. Taylor. The next five notes were produced in court by Georgie Belle Humphrey from the papers of her father, Dr. Charles B. Taylor, who was incapacitated prior to the taking of the evidence in the partition suit. Mrs. Humphrey is not, of course, trying to collect them, but is only relying upon them as part of the evidence which exonerates her 50 acres as against the 50 acres of Jones.

The last five of said notes, due in 1925, 1926, 1927, 1928 and 1929, are the notes which must be paid in cash and which the circuit court ordered charged primarily on the 50 acres owned by plaintiff in error, Jones. These five notes were conveyed by George O. Taylor to his nephew Charles Allen Taylor as trustee for Georgie Artis. The trustee sold one of the five notes, which same is now held by the Elkhart State Bank. The trustee still holds four of the notes.

Descent of Title

George O. Taylor died in November, 1919, and by his will gave his remaining 100 acres in the Ferguson farm to his widow, Augusta H. Taylor for life, with remainder in fee at her death in four equal shares, each share being one-eighth of the total farm or approximately 25 acres of land; one share (25 acres) to his brother James C. Taylor; one share (25 acres) to his brother Zachariah T. Taylor, Sr.; one share (25 acres) to his brother Charles B. Taylor; one share (25 acres) to be equally divided among the children of a deceased brother, Cheslea Q. Taylor, i. e., Charles Allen Taylor, Edna E. Taylor, Perle Sherbondy. Perle Sherbondy deeded her share in remainder to her brother and sister, Charles Allen Taylor and Edna E. Taylor.

James C. Taylor died May 31, 1922, leaving a will which never became effective because all his land • was sold to pay his debts. At the time of his death he owned the 50 acres subject to the mortgage and the remainder in 25 acres subject to the life estaté of Augusta H. Taylor, or a total of three-eighths of said farm, which was all sold by his executors to pay debts and all bought by plaintiff in error Jones at the executor’s sale.

Zachariah T. Taylor, Sr., sold his 50 acres, which was subject to the mortgage, to his brother Dr. Charles B. Taylor for $10,000 on January 29, 1923. Dr. Charles B. Taylor later made a warranty deed to his daughter G-eorgie Belle Humphrey, conveying to her 50 acres of the Ferguson farm, subject to mortgage, and 25 acres which had come to him under his brother George O. Taylor’s will.

Zachariah T. Taylor, Sr., died intestate March 21, 1923, still owning the 25 acres of the Ferguson farm devised to him by his brother George O. Taylor, and then subject to the life estate of Augusta H. Taylor. His administrators sold all his real estate to pay his debts. John R. Jones, plaintiff in error, bought the 25 acres in the Ferguson farm at the administrator’s sale.

After this suit was started and in the year 1927, Augusta H. Taylor, who held the life estate in half the Ferguson farm, died and all remainders are now vested in possession.

Present Owners of the Land

For the sake of convenience and clearness we will assume the Ferguson farm to be exactly 200 acres and on this assumption said land is now owned as follows:

John R. Jones, original complainant, owns: 50 acres free of mortgage; 50 acres subject to mortgage.

G-eorgie Belle Humphrey, cross complainant, owns: 25 acres free of mortgage; 50 acres subject to mortgage but claimed to be exonerated as against Jones; plaintiff in error.

Charles Allen Taylor and Edna E. Taylor together own: 25 acres free of mortgage.

The Issue in the Case

As above stated, the trustee for Georgie Artis and the Elkhart State Bank together hold $5,000 mortgage debt and interest, for which 100 acres of the Ferguson farm is security, said 100 acres being owned in equal shares by said plaintiff in error, Jones, and said defendant Humphrey. The circuit court found that as between Jones and Humphrey the 50 acres of Jones was primary security for the notes held by the trustee for Georgie Artis and the Elkhart State Bank, totaling $5,000 and interest, but plaintiff in error contends that burden thereof should fall equally upon himself and Mrs. Humphrey. The solution of the question must be sought in the circumstances surrounding and the nature of the conveyances respectively by which said Jones and Mrs. Humphrey obtained title to the mortgaged premises.

Jones Assumed the $5,000 Mortgage

The 50 acres which Jones holds subject to the mortgage was purchased by him at the executor’s sale to pay debts held at Elkhart in June, 1924. There were 19 separate tracts of real estate described in the decree for sale to pay debts. The 50 acres described as “Item No. Eighteen” is the 50 acres now owned by plaintiff in error, subject to the mortgage. The decree for sale to pay debts sets out the interests of all parties in this 50-acre tract designated as Item No. Eighteen, and provides among other things: “That the unpaid balance of the principal of said mortgage is now equal to the sum of $10,000, with interest thereon at the rate of five per cent per annum from the first day of June, 1923; . . . that the said undivided 50 acres above described- as property of said James O. Taylor as ‘Item No. Eighteen’ is therefore subject to one-half the burden of the said last described mortgage indebtedness, or the principal sum of $5,000, with interest at the rate of five per cent since the first day of June, A. D. 1923.” The decree of sale further sets out that the 50 acres was worth on an average of $200 per acre. The court also orders the executors to sell all of the real estate, or so much thereof as might be necessary, to pay the debts, “said lands being sold subject to the mortgage indebtedness hereinabove set forth as encumbering the various tracts respectively as aforesaid.” And the decree for sale reads: “And it is further ordered, adjudged and decreed by the court that in no case shall any item of real estate offered for sale under this decree by said executors be sold by said executors for less than two-thirds of the valuation of said particular piece of real estate, as hereinabove found by this decree of this court.” Also there appears the terms of sale in the particular decree, showing that possession in each case was to be delivered to purchaser subject to the rights of mortgagees as set forth in the decree.

Jones’ Deed Made Subject to $5,000 Mortgage

Under this decree the sale was held on June 11, 1924, at Elkhart and plaintiff in error, Jones, was present and heard the attorney for executors “announce the terms of the sale subject to half the burden of a mortgage of $10,000.” Thereafter plaintiff in error bid in the' 50 acres at $1,492.35, as shown by the report of sale made in July, 1924, which was confirmed. Jones then took a deed from the executors. This deed reads: “This conveyance is also subject to one-half the burden of an unpaid mortgage, being originally made of date June 19, A. D. 1917, by James C. Taylor and Zachariah T. Taylor, Sr., to George O. Taylor in the principal sum of $12,000, recorded in Book 49 of Mortgages, at page 166 of the records of the office of the recorder of Logan county, Illinois, said unpaid balance of said mortgage being the principal sum of $10,000 with interest thereon at 5 per cent per annum from and after the 1st day of June, A. D. 1923.”

Jones paid the sum of $1,492.35 for the 50 acres, or a little less than $30 per acre cash, the balance of the purchase price being the assumption of $100 per acre mortgage debt with interest, on which assumption of mortgage debt, the land brought approximately $133.33 per acre, being two-thirds of the $200 an acre value found and decreed by the probate court and fixed as the minimum sale price. After this plaintiff in error assumed the indebtedness and paid two years’ interest on each of the five notes now held by the trustee for Georgie Artis and the Elkhart State Bank. It is to be noted further that the report of said sale gives the terms of the sale, saying “That the said sale was advertised, announced, made and held upon the following terms, to wit: All sales to be made subject to rights of mortgagees.”

Humphrey’s Fifty Acres Claimed to be Exonerated

G-eorgie Belle Humphrey obtained her 50 acres by the warranty deed of her father, Dr. Charles B. Taylor. Dr. Taylor bought the 50 acres from his brother Zachariah T. Taylor, Sr., January 29, 1923. At the time of this sale Zachariah T. Taylor, Sr., gave his brother Dr. Charles B. Taylor a signed memorandum (written entirely in his own handwriting), which is as follows: “Reed of Chais B. Taylor Ten Thousand Dollars as payment for Fifty (50) acres of land the % one fourth Interest in the Ferguson Farm Sec. 32 & 33 Elkhart Twp. Z. T. Taylor agrees to meet the payments of bal of One half of Mortgage Remaining on paid.

Jan. 29th, ’23. Z. T. Taylor.”

Dr. Taylor paid for the 50 acres by a check for $8,950 drawn on the Lincoln National Bank of Lincoln, Illinois. The other $150 necessary to make the $10,000-purchase price is shown to have been a check of a third party. In brief, Dr. Charles B. Taylor paid $10,000 for the 50 acres and the written agreement from his brother Zachariah T. Taylor, Sr., to exonerate the 50 acres purchased from all liability under the mortgage. Later, Zachariah T. Taylor, Sr., told his brother Charles B. Taylor that he had the papers that by producing would clear this part of the mortgage and he said these papers were in a certain drawer in the safe. Soon afterwards Zachariah T. Taylor, Sr., was taken sick and died March 21, 1923. Thereafter Dr. Charles B. Taylor showed the agreement to exonerate the land to the son of Zachariah T. Taylor, Sr., one Zachariah T. Taylor, Jr., whose testimony appears in this case. Dr. Taylor asked his nephew to look in the safe where his brother had said the mortgage papers would be. The nephew did so and found the mortgage and five $1,000-notes, which are marked “paid” and have certain indorsements of interest written on the back. These notes Zachariah T. Taylor, Jr. (who was one of the administrators of his father’s estate) then and there gave to Dr. Taylor and they were found among the papers of Dr. Taylor after his incapacity and produced in open court by his daughter, Georgie Belle Humphrey.

The master in chancery to whom the cause was referred, found that there was but $5,000 principal indebtedness remaining due under said mortgage, and that the interests of the owners of the mortgaged land were primarily liable for said amount, and that the cross-bill of Charles B. Taylor and the cross-bill of Georgie Belle Humphrey both should be dismissed. Objections w'ere filed by Georgie Belle Humphrey to the master’s findings, which objections were made exceptions upon the hearing before the court and were sustained, and a decree of partition entered finding and adjudging, among other things, that plaintiff in error owned an undivided one-fourth of the lands first above described subject to being the primary security for all of the principal and interest represented by said four mortgage notes held and owned by said Charles A. Taylor, trustee for Georgie Artis, and one mortgage note held and owned by said Elkhart State Bank of Elkhart, Illinois, and that plaintiff in error owns another one-fourth, in fee simple, free of incumbrance; that Georgie Belle Humphrey owns an undivided one-fourth, subject to being secondarily liable for the principal and interest of said five notes, and that said Georgie Belle Humphrey owns an undivided one-eighth in said real estate in fee simple, free of incumbrance; that said Edna E. Taylor and Charles A. Taylor each own an undivided one-sixteenth of said real estate, free and clear of incumbrance, to review which decree the writ of error in this case has been sued out.

It is contended that the memorandum signed by Z. T. Taylor represented only a personal obligation and that the said Charles B. Taylor so interpreted the memorandum and filed a claim against Ms brother Zachariah T. Taylor’s estate for the amount of said notes, and that the same was allowed and paid to the extent of $1,270.76, the estate being insolvent, and the claimant Charles B. Taylor receiving his full percentage of the assets upon the claims paid.

It is further contended that said James C. Taylor, one of the makers of said notes, was executor of the will of his brother George O. Taylor, and as such executor administered the estate of George O. Taylor. None of said notes appeared in the inventory of the assets of the estate of James C. Taylor. The estate of George O. Taylor was administered in Louisiana, but it is not denied but that plaintiff in error purchased his portion of the lands in the executor’s sale of lands in the estate of James C. Taylor, deceased, and subject to a mortgage of $10,000 upon the 100 acres. There is nothing to show that the estate of George O. Taylor, deceased, was the owner of these notes at the time of his decease. There is nothing in this record to show that the notes had ever been paid. Neither do the proofs show how or in what manner the notes came into the possession of Zachariah T. Taylor, Sr., in his lifetime, but his possession of the unindorsed notes was prima facie evidence of his ownership of the notes. In this case, the notes being found in the possession of a part owner of the mortgaged premises, constituted a sufficient reason for keeping the notes alive, although a full settlement had been made with the former owner of the notes. One of two comakers of mortgage notes may be the sole owner of such notes and keep them alive as part of a funded debt, as possession works no merger or extinguishment. (Walker v. Chicago M. & N. R. Co., 277 Ill. 451; Kipp v. McChesney, 66 Ill. 460; Flagg v. Geltmacher, 98 Ill. 293.) Equity will keep a mortgage and mortgage notes alive even against the intent of the mortgagee and his cancellation of the notes, if necessary to protect a holder. (Moffet v. Farwell, 222 Ill. 543; Richardson v. Hockenhull, 85 Ill. 124.) Neither will the law presume a fraud on the part' of James C. Taylor towards the widow or estate of George O. Taylor, deceased, nor on the part of Zachariah T. Taylor, Sr., towards his brother Charles B. Taylor. The law never presumes a fraud. (McKennan v. Mickelberry, 242 Ill. 117, 134; Speck v. Pullman Palace Car Co., 121 Ill. 33, 54.)

It is strongly contended by plaintiff in error that the claim filed by Charles B. Taylor against the estate of Zachariah T. Taylor, Sr., and a partial recovery thereon, is strong proof that the notes in question were paid. A careful reading of the receipt given by Z. T. Taylor to his brother Charles B. Taylor shows that it is not a covenant against incumbrances, but an undertaking to meet the notes in his brother’s behalf as they became due. It shows the intent on the part of Zachariah T. Taylor, Sr., to keep alive the notes and mortgage securing them. Zachariah T. Taylor, Sr., had died and had not turned over the notes. Charles B. Taylor may have believed that his only recourse was to file a claim against the estate. Any advantage accruing to Charles B. Taylor from this action would not inure to the benefit of plaintiff in error, but to the creditors of the estate of Zachariah T. Taylor, deceased. It is no proof that the notes had been canceled. Zachariah T. Taylor conveyed his interest in these lands by a good and sufficient warranty deed to Charles B. Taylor, and Charles B. Taylor and his wife, by a similar warranty deed, conveyed the lands to defendant in error. These deeds, under the statute, were covenants against incumbrances and run with the land for the benefit of remote grantees. (Richard v. Bent, 59 Ill. 38; Dalton v. Taliaferro, 101 Ill. App. 592; Cahill’s St. ch. 30, ¶ 9.) This entitled defendant in error to the possession of the notes in question.

On the doctrine of comparative equities in this case, it is much stronger for defendant in error than for plaintiff in error. Jones, plaintiff in error, purchased specifically subject to the mortgage, and the amount of the mortgage debt was deducted from the sale price. As to the defendant in error the lands came to her by conveyances, free of the mortgage debt, and her father had paid the full price of the lands covenanted to be free of the lien.

Considerable objection is made to the testimony of Zachariah T. Taylor, Jr., as to statements made by his father concerning the notes while said notes were in the father’s possession. This testimony was competent. (Martin v. Martin, 174 Ill. 371; Andrews v. Votaw, 240 Ill. App. 311, 319.) In Andrews v. Votaw, supra, this court held: “The letter referred to is a declaration by a person in possession of personal property, and is competent evidence to show the character of his possession, the purpose of it, and in this case tended to show that Kelly was acting in conformity with the purpose for which he had received the property, and was carrying into effect such purpose. The declarations of persons in possession of personal property explanatory of the nature and character of their possessions are competent. 22 Corpus Juris, sec. 280, $1. 277. It is well settled that the existence and extent of a claim of one in possession of personal property as to the ownership thereof, or as to the rights therein, may be shown by his relevant declaration, although they operate in the declarant’s own favor. 22 Corpus Juris, sec. 279, p. 276; Martin v. Martin, 174 Ill. 371; Amick v. Young, 69 Ill. 542; Whitaker v. Wheeler, 44 Ill. 440; Rigg v. Cook, 4 Gilm. 336.”

Some other matters were argued in this case to which we do not deem it necessary to give further attention, It is mainly contended by plaintiff in error that the decree is against the manifest weight of the testimony. In this contention we cannot agree with plaintiff in error. Whatever property transactions there may have been in the Taylor family and however the transfer and ownership of these notes may have occurred, no fraud is shown and none can be presumed and in no event have plaintiff in error’s rights been affected in any manner whatsoever.

A cross error is presented by defendant in error that the decree of partition should have been granted upon the cross-bill and not upon the original bill. The cross-bill did set out the rights and equities of the parties to this suit correctly, in which respect the original bill was defective and accountable for the burden of this litigation. Defendant in error’s cross error should be sustained.

Accordingly, the decree of the circuit court of Logan county is reversed and the cause remanded with directions to the circuit court of Logan county to enter a decree upon the cross-bill. In all other respects the decree of that court is affirmed.

Reversed and remanded with directions to enter decree.


source: Caselaw Access Project

author: Mr. Presiding Justice Shurtleff

license: Public Domain

text:
    Mike Vukovich, Appellee, v. Peter Sleboda, Appellant.
    Gen. No. 8,459.

      Opinion filed April 14, 1931.
    L. M. Harlan and Jesse Peebles, for appellant.
    W. J. McDonald and John P. Madden, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This is an action on the case to recover damages for a personal injury. Mike Vukovich is the plaintiff and appellee. Peter Sleboda is the defendant and appellant. The declaration contained two counts. These counts were substantially in the same language. They charged that appellant, Peter Sleboda, was the owner of and possessed of a certain automobile, which is described as being an “automobile truck.”1 The declaration charged in substance that this car was purchased for the purposes of the family;' that on an occasion in June, 1927, Mary Sleboda, a daughter of appellant and a member of his family, was driving this truck; that she carelessly manipulated it so that it was driven upon and against the appellee as he walked across a certain crossing in the village of "White City, and that by striking appellee with the truck he was injured. The declaration was so framed as to charge that the ownership and the circumstances brought the transaction within the provisions of the “family purpose” doctrine, as defined by the courts of this State. The second count, in much the same language as that used in the first one, alleged that Mary Sleboda was an agent of her father and that she was transacting business for him at the time of the injury.

There were two pleas; one was the general issue, followed by a special plea which denied that the vehicle in question was a “family purpose” car, but setting up the fact that it was a business automobile, purchased for business purposes and used in that capacity. Motions for peremptory instructions were made at the conclusion of the plaintiff’s evidence and renewed at the termination of all of the evidence, and these motions were denied.

There was a verdict and judgment for appellee in the sum of $5,000 and appellant has appealed.

The facts, briefly stated, are that appellant carried on a restaurant business in a business house on Front Street, in the village of White City. He had done this for a long time. He lived on another street. He had two automobiles. • One was a pleasure car, an Auburn six, and the other was the Ford truck in question. The Auburn car was a family purpose car. The truck stood in a lot alongside of the business house and was used to haul ice and merchandise. Mary Sleboda, at the time of the accident, was about 19 years old. She lived at home with her parents. On the day the accident happened appellant was in St. Louis. A son of appellant was running the business that day. At about six o’clock in the evening Mary walked from the Sleboda home and took her brother’s supper to him at the business house. After delivering the food Mary went out upon the street of the village. The truck stood in its accustomed place in the lot adjacent to the business house. With no consultation with any person, and no knowledge on the part of any other member of the family, she decided to take the car home and put it in the garage for the night. She walked out to the truck, got up on the driver’s seat, drove it out of the lot upon the village street, turned it north and drove it north on the east side of the street until she reached the next street corner north from where she started. There she turned the car across the street to go west, which was her direction to go home, and as she crossed the crossing on the west side of this village street, which ran north and south, she struck appellee, who was walking north across that crossing on the west side of the street. Appellee was dragged by the car and seriously injured. Mary Sleboda had driven this car at other times for her own pleasure and with the knowledge of her father.

This case on the facts is very close on the question as to whether, at the time of the accident, Mary Sleboda, the daughter, was engaged on a mission for her father and whether the father, appellant, was liable. The jury should have been accurately instructed upon that question. At the request of appellee the court gave the following instruction: “The court instructs the jury that, as a matter of law, it makes no difference whether or not the daughter of the defendant had attained or passed the age of her legal majority, if you believe from the preponderance of the evidence that at the time of the injury complained of in the declaration in this case, she was residing in the household of the defendant as a member of his family, and was operating the automobile or automobile truck in question, for the use, pleasure, comfort or entertainment of herself or members of the family of the defendant, and while so operating the said automobile or automobile truck, so negligently controlled or managed the said automobile or automobile truck, that the plaintiff was injured thereby while in the exercise of due care and caution for his own safety.”

This instruction does not state the law correctly. If Mary Sleboda, although a member of her father’s family, was driving the car for her own pleasure and not on any errand or mission for her parent, the parent is not liable.

In White v. Seitz, 342 Ill. 266, 271, the court held: “These three are the cases which announce the law in this State, and they establish these propositions: That a parent is not liable for the tort of his minor child merely from the relation; that, the owner of an automobile who merely permits another to use it for his own purposes is not liable for the negligence of the person so using it; that the owner of an automobile is not liable for an injury occasioned by the negligent use of the machine by his servant if the servant was at the time at liberty from the service of his master and not engaged in doing his master’s business but was pursuing his own interests exclusively; and that the relation of master and servant is not established between the owner of an automobile and his minor son by the mere fact that the father purchased the machine for the pleasure of the family and that he permitted his son to use it for his own pleasure.”

For the error pointed out, the judgment of the circuit court of Macoupin county is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Shurtlepp

text:
    Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. Arcola State Bank et al. In re Petition of T. E. Lyons, Receiver, Appellee, v. W. K. Donnell, Appellant.
    Gen. No. 8,491.
    Opinion filed April 14, 1931.

      B. E. Bowling, for appellant.
    John McNutt, for appellee.
   Mr. Presiding Justice Shurtlepp

delivered the opinion of the court.

This is an appeal from a proceeding before the circuit court of Douglas county, brought originally by the receiver of the Areola State Bank against appellant, to effect a settlement and compounding of a judgment obtained by said receiver against appellant in the circuit court of Shelby county on March 22, A. D. 1927, for the sum of $9,900. Apparently transcripts of this judgment had been taken to the counties of Coles and Douglas.

There is no statement of the case from either party from which the issues in the cause can be gleaned. Appellant has presented for an abstract 139 pages, being a portion of the record very insufficiently indexed. Appellee has presented a short abstract, with much of the proceedings deleted, but does not ask for a dismissal of the appeal.

Appellant was a resident of the State of. Oklahoma, where he had resided for about nine years. The bank at Areola was apparently a “family bank” and the receiver and appellant, being brothers-in-law, the bank was largely owned by members of their families. The bank had been closed by the auditor of the State of Illinois some time prior to the entry of said judgment. It had been in the hands of said receiver, reopened again and run and managed by the bank for a period. Again in January or February, 1928, after the proceedings complained of, the auditor of the State had re-entered and the bank again placed in the hands of the receiver. The date of these proceedings is impossible to determine. Some time prior to said judgment being entered, appellant had forwarded his promissory judgment note to the bank from Oklahoma, without any consideration except to bolster up the bank. The note had been renewed several times. After the entry of said judgment appellant returned from Oklahoma in the month of May, 1927, and filed his petition in the circuit court of Shelby county to open up and vacate said judgment, and for leave to plead. There was a partial hearing upon this petition in the term current in May or June, 1927, but no final determination of the proceeding at that term of court. In the circuit court of Shelby county, .where said judgment was entered, the record shows, “Oct. 22nd 27— cause settled; suit dismissed by plaintiff at his cost: costs paid — stricken”; and again on the margin of the “Judgment by Confession in Vacation” record No. 5, Lyons v. Donnell, there appears the following notation: “This judgment satisfied as to the sum of $4,500.00 December 28th, 1927,” signed by plaintiffs’ attorneys.

After appellant returned from Oklahoma in May, 1927, negotiations were entered into between appellant, the receiver, and the State Auditor for a settlement and adjustment of the matter, and these negotiations resulted in an agreement among all of these parties to compound the debt and judgment in the following manner: Appellant was to make settlement of the debt and judgment by the payment of $4,500 in cash and the deposit with the receiver of a life insurance policy for $5,000 upon the life of appellant, and appellant was to pay the attorney’s fee for the entry of the judgment in the circiut court of Shelby county, and some other matters that are set out in the judgment or decree. Thereupon the receiver, appellee, proceeded to prepare and present, by the agreement of all parties, a petition to the circuit court of Douglas county to effect said settlement, and such petition was presented to the circuit court of Douglas county on the 6th day of September, A. D. 1927. Proofs were heard and the following order and decree was entered on that day:

“And, the said petition having come on to be heard, the Court finds that no notice is necessary to be given for a hearing on the same, and the Court having listened to the evidence of witnesses sworn and produced in open Court and being fully advised in the premises, finds that the allegations of the said petition are true, and, It Is, Therefore, Ordered, Adjudged and Decreed by the Court that the prayer of the said petition be granted and that the said T. E. Lyons, Receiver of the Arcóla State Bank, be and he is hereby authorized, empowered and directed to compound and compromise the claim of the Arcóla State Bank against the said W. K. Donnell upon a note of date November 17th, A. D. 1926, in the sum of Nine Thousand Dollars ($9,000), with interest at the rate of seven per cent per annum from maturity, payable to the said Arcóla State Bank one year after date and signed by W. K. Donnell, upon which judgment was taken on the 22nd day of March, A. D. 1927, against the said W. K. Donnell in the Circuit Court of Shelby County, Illinois, for the sum of Nine Thousand Nine Hundred Dollars ($9,900.00) and costs of suit, a transcript of which judgment was filed in the office of the Clerk of the Circuit Court of the County of Coles and State of Illinois on the 24th day of March, A. D. 1927; that said claim upon said note and judgment be compounded, compromised and settled upon the following terms: The said W. K. Donnell shall pay to the said T. E. Lyons, Receiver of the Arcóla State Bank, the sum of Forty-Five Hundred Dollars ($4500.00) in cash for release of judgment and transcript and execution returned by the Sheriff upon the further agreement of the said W. K. Donnell that if and when there is any money available for his use from the oil or gas found on his land, in Oklahoma, that he will pay to the depositors, stockholders or creditors of the Arcóla State Bank the balance of the original Nine Thousand Dollars ($9000.00) note, upon which said judgment was taken, with interest at seven per cent from the date thereof, the said W. K. Donnell as further evidence of his good faith and by way of additional security for the payment of the balance of said note, to deposit with said Receiver for the use and benefit of any and all parties interested, a Five Thousand Dollar ($5000.00) life insurance policy, with proper assignment thereon, as required by the Life Insurance Company, and with the further agreement on the part of the said W. K. Donnell that the premiums on said policy will be paid promptly from time to time as it is due and payable and such policy will not be permitted to lapse, and the said W. K. Donnell is in addition to said Forty-Five Hundred Dollars ($4500.00), to pay to Carl D. Kiger, Attorney-at-law, of Mattoon, Illinois, the sum of One Hundred Dollars ($100.00) for Attorney’s fees for taking said judgment.”

No date is fixed upon which the said sum of $4,500 should be paid, but it appears that appellee at once turned over the insurance policy and the said sum of $4,500 was paid on or before December 28, 1927. The attorney’s fee was paid. The term of court in Douglas county at which said decree was entered was on or before the second Monday of said month of October, 1927. Appellant, therefore, returned to the State of Oklahoma in or prior to the month of September, 1927. Thereafter, the appellee, receiver, on the 24th day of October, 1927, without giving any notice to appellant or to any other person, presented a petition to the circuit court of Douglas county to modifythe said order and decree of September 6, 1927, and secured an order and decree modifying and changing said order to read as follows:

“And now on this the 24th day of October, A. D. 1927 being one of the judicial days of the October Term, A. D. 1927, of said. Court, comes T. E. Lyons, Receiver of the Arcóla State Bank, and presents his petition to this Court, praying for an additional order with reference to the compounding and compromising of a claim of the Arcóla State Bank against one W. K. Donnell, which said petition is in words and figures as follows, to wit: . . .

“And the said petition having come on to be heard, the Court finds that no notice is necessary to be given for a hearing on the same; and the Court having listened to evidence of witnesses sworn and produced in open Court, and being fully advised in the premises, finds that the allegations of the said petition are true. It Is Therepore Ordered, Adjudged and Decreed by the Court that the prayer of the said petition be granted, and that said order heretofore entered in this matter, on the sixth day of September, A. D. 1927, allowing the said T. E. Lyons as such Receiver of the Arcóla State Bank, to compound and compromise said claim with the said W. K. Donnell, be and the same is hereby set aside and esteemed and held for naught.

“It Is Further Ordered, Adjudged and Decreed by the Court that the said T. E. Lyons as such Receiver accept the said sum of Forty-Five Hundred Dollars ($4500.00) from the said W. K. Donnell; that he credit the same on the said judgment so taken by the said T. E. Lyons as such Receiver, against the said W. K. Donnell, on the 22nd day of March, A. D. 1927, in the sum of Ninety-Nine Hundred Dollars ($9900.00), and that the said T. E. Lyons as such Receiver, execute and deliver to the said W. K. Donnell a partial" release of said judgment, wherein and whereby the said Receiver releases the following described premises, viz: . . . situated in the City of Mattoon, County of Coles and State of Illinois, from the lien of the said judgment and said executions.”

It appears appellant never knew anything about this modification order until about a year after it was entered, and he at once filed and presented his petition to vacate the same. There was a hearing upon the petition, proofs were heard and the court denied the petition and refused to vacate the decree or order, and appellant has appealed from that order.

The proofs substantiated the facts set out in this opinion. In this record there are no proofs shown that the Areola State Bank was indebted to anyone or that there was ever any consideration given for appellee’s note of $9,000, or that there was ever any liability thereon. There are no proofs shown that there were any fraudulent statements made or misrepresentations in effecting the compounding of appellant’s debt and judgment that would authorize a proceeding to set aside the settlement and order and decree of September 6, 1927. Appellee contends that neither of the orders and decrees of September 6 or October 24, 1927, are binding court orders, but merely ex parte orders to govern the receiver in the settlement of the estate. We cannot agree with appellee’s contention. The order and decree of September 6, 1927, was made upon the stipulation of the State Auditor, the receiver, and the appellant and became a valid and binding court order upon both the receiver and the appellant. If there was any fraud, accident or mistake in the entry of the order, appellee has other means of correction than the methods taken. There are two vital reasons why the order and decree of October 24, 1927, should not stand. The term of court at which the order of September 6, 1927, was entered had passed and the court was without power or jurisdiction to modify or change it. The appellee had accepted benefits under the order and appellant had in no manner violated its terms. The order of September 6, Í927, had become and is a valid, binding order and decree of all the parties to it. It was a debt of record. (33 Corpus Juris, 1056.) This could not be attacked in any way, except by giving appellant notice, in a proper proceeding, and a chance to be heard.

At the time the modification of the order and decree was entered, October 24, 1927, appellee had exhausted his authority under the power in the note given by appellant, and his suit in Shelby county had been dismissed and there was no judgment existing in Shelby county which formed the basis of the transcript of judgment to the Douglas county circuit court. On October 24, 1927, the only claim or demand that appellee had against appellant, as appears by these proceedings, was the decree by stipulation entered in the Douglas county circuit court on September 6, 1927.

Appellant should be charged with the costs of appellee’s abstract.

For the reasons stated the order and decree of the circuit court of Douglas county is reversed and the cause remanded to that court, with directions to expunge from the records the proceedings had in this cause on October 24, 1927.

Reversed and remanded with directions.


text:
    Jesse Heylin, Trustee in Bankruptcy of Clara K. Woods, Bankrupt, Appellant, v. Clara K. Woods et al., Appellees.
    Gen. No. 8,502.
    Opinion filed April 14, 1931.
    Ira J. Covet and Edwin L. Covet, for appellant.
    Hobart S. Botd, Glenn Ratcliff and E. L. Weber, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

The only question in this case is whether a legacy given to George Palmerton, one of the appellees, under the will of John C. Hoxworth, deceased, has abated. The facts necessary to a proper understanding of the question are few and not complicated.

John C. Hoxworth, a resident of Rapatee, Knox county, Illinois, made his last will on the 8th day of January, 1913, by the first paragraph of which he directed his executrix to pay his debts and funeral expenses. By the second paragraph he gave to his wife, Alice Hoxworth, all the personal and real estate that he possessed at the time of his death, to have and to hold during her natural life. By the third paragraph he provided:

“At the death of my wife, I give to my nephew, George Palmerton, One Thousand Dollars ($1,000.00), and the balance of my estate, both personal and real, I give to my two daughters, Mrs. Letha Bourne and Mrs. Clara Woods, both to share and share alike.”

Hoxworth died October 27, 1926, leaving a small amount of personal property, and a farm containing 217% acres, consisting of 200 acres in Knox county and 17% acres in Fulton county, Illinois. The will was probated in Knox county and Clara K. Woods ap-' pointed administratrix, with the will annexed, the executrix Letha Bourne having declined to act.

One hundred sixty acres of the land in Knox county was subject to a mortgage to the appellee Aetna Life Insurance Company of Hartford, Connecticut, for the sum of $15,000, dated May 1, 1923, due March 1, 1933, no part of which had been paid and which was a first lien on said premises.

Clara K. Woods, one of the daughters of John C. Hoxworth and one of the residuary legatees, was adjudged a bankrupt by the United States District Court for the Southern District of Illinois, Northern Division, and the appellant, Jesse Heylin, was appointed trustee in bankruptcy for her. At the May term, 1928, Heylin, as such trustee in bankruptcy, filed a bill in chancery in the circuit court of Fulton county for the partition of the 217% acres aforesaid, located in Knox and Fulton counties. All of the appellees herein were made parties defendant to this bill. After the defendants had answered the cause was referred to the master, who reported, recommending partition of the real estate. The court approved the master’s report and appointed commissioners. The commissioners reported that the property was not susceptible of division and fixed its value at $7,400, subject to the mortgage of $15,000 to the Life Insurance Company and subject to the widow’s life estate. The court approved the commissioners’ report and ordered the master to make sale. The master sold the property subject to said mortgage and life estate for $9,400. The sale was approved by the court and the cause re-referred to the master to take the evidence of the parties and report his conclusions of law and fact as to whether the appellee George Palmerton, as a legatee, under the terms of the will of John O. Hoxworth, deceased, was entitled to receive any portion of the proceeds of the sale.

The master reported: “That the personal estate of John O. Hoxworth, deceased, is insufficient to pay the debts and claims against his estate, together with the necessary costs of administration.”

The master also reported: “That taking into consideration the entire will, the said third paragraph of said will should be considered and construed as follows: That the said George Palmerton is entitled to the sum of one thousand dollars ($1,000.00), being the amount of his legacy, and that said legacy should not abate, and that the same is a charge against the real estate involved in this proceeding, and that the phrase: ‘And the balance of my estate, both personal and real, I give to my daughters, Mrs. Letha Bourne and Mrs. Clara Woods, both to share and share alike,’ amounts to a residuary clause in said will.”

The master also recommended that a decree be entered “allowing the appellee George Palmerton the legacy expressly given to him in the third clause of said will.”

The appellant' filed objections to the master’s report. The master overruled these objections and filed his report. The appellant then excepted to the master’s report, which exceptions are in substance the same as said objections. The cause was heard before the court on these exceptions. The court found “that the personal estate left by the said John C. Hoxworth, deceased, is insufficient to pay the debts and claims against his estate, together with the necessary costs of administration thereof; that there is no evidence in this case showing the amount or value of the personal estate owned by the testator, John C. Hoxworth, at the time he made and executed his last will and testament, on the 8th day of January, 1913, a copy of which said will is set forth in said master’s report, nor is there any evidence as to the amount of debts owed by said Hoxworth, if any, at said time.”

The court then overruled the exceptions and approved the master’s report and decreed that the master should make distribution of the proceeds of the sale of real estate, as follows:

“To the complainant, Jesse Heylin, Trustee, etc., for his reasonable solicitor’s fees incurred herein, the sum of.............. $1,049.90

To the complainant herein for the fees and expenses of the commissioners, heretofore appointed herein, the sum of.......:____ 26.00

To the master in chancery of this court, for his services and expenses herein, the sum of ..................................... 57.20

To the defendant, George Palmerton, for his legacy, as aforesaid, the sum of........ 1,000.00

Total ............................. $2,133.10

The balance of the fund remaining in the hands of said master in chancery, after making distribution as aforesaid, shall be paid out by said master in chancery, as follows, to-wit:

To the complainant, Jesse Heylin, trustee in bankruptcy of Clara K. Woods, bankrupt, one-half (%) of the balance of said fund;

To the defendant, Mrs. Letha Bourne, one-half (%) of the balance of said fund. ’ ’

The appellant has brought the record of the cause to this court, by appeal, for review.

We have examined Jenne v. Jenne, 271 Ill. 526, and Alderman v. Dystrup, 293 Ill. 504, cited by appellant. The rule laid down in those cases from the facts cited would not warrant a reversal of the decree of the lower court in this case. The general rule is well settled that where a testator, after bequeathing pecuniary legacies, gives the residue and remainder of his real and personal estate (or uses similar words indicative of a gift of a mixed residue) the legacies are a charge on or are payable out of the residuary real estate, and, in case of a deficiency of personalty, must be paid out of the realty otherwise passing under the residuary clause. (Simonsen v. Hutchinson, 231 Ill. 508; Williams v. Williams, 189 Ill. 500; Stickel v. Crane, 189 Ill. 211; Schmidt v. Schmidt, 211 Ill. App. 409; Prettyman v. Marcy, 205 Ill. App. 222, and Rinehart v. Rinehart, 42 A. L. R. 649, 656.)

This case from a reading of the will plainly comes under the rule laid down in Simonsen v. Hutchinson, supra, and the decree of the circuit court of Fulton county is affirmed.

Affirmed.


author: Mr. Justice Eldredge

text:
    Ruth Ewing, Appellee, v. F. F. Davis et al., Appellants.
    Gen. No. 8,435.

      Opinion filed April 14, 1931.
    J. Leroy Adair and John T. Ingraham, Jr., for appellants.
    John E. Wall, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Ruth Ewing, appellee, recovered a judgment in an action on the case against F. F. Davis and Eldon E. Davis, appellants, as damages for injuries received by her while riding in an automobile owned by F. F. Davis and driven by Eldon E. Davis, his son.

In the first count it is alleged that the defendants by themselves and their agents owned and operated a certain automobile and invited the plaintiff to ride therein as the guest of themselves and their agents which invitation was accepted by the plaintiff and she entered said automobile to ride therein as the guest of said defendants; that it. became the duty of defendants by themselves and their agents to exercise reasonable care in the management and operation of said automobile while the plaintiff was riding therein as their guest but in disregard of their duty in that behalf they by themselves and their agents so negligently managed and operated their automobile that it ran into and struck with great force and violence against an abutment or obstruction on and near a public highway and caused the plaintiff to be thrown out of the automobile and thereby causing her to receive certain severe injuries. The second and third counts are substantially the same and in each it is alleged that defendant F. F. Davis owned the automobile which was purchased by him for the use, pleasure, entertainment and convenience of himself and the members of his family and with his knowledge, consent and permission was used by other members of his family including the defendant Eldon E. Davis, for his pleasure, entertainment and convenience; that Eldon E. Davis, son of F. F. Davis, and a member of his family, was using, driving and operating said car for the purpose aforesaid and invited plaintiff to ride with him in said automobile as his guest which invitation the plaintiff accepted and entered said automobile to ride therein as the guest of said defendant Eldon E. Davis.

On November 9, 1928, between 9:30 and 10 o’clock in the evening, the defendant Eldon E. Davis called for the plaintiff and invited her to take a ride in his automobile. In the car at that time was another young lady, Vivian Padgett. Eldon sat on the left side of the seat, Miss Padgett in the center and the plaintiff on the right. It was a very foggy night and while not raining the pavement was wet. During the ride the plaintiff requested Eldon not to drive so fast. Eldon testified that after the girls had requested him to slow down he reduced the speed of the car to the “neighborhood” of 30 miles an hour and that when he approached a culvert he ran into the abutment thereof, causing the wreck of the car. The evidence further shows that Eldon had driven the car before alone and had also takeii the plaintiff and other girls on rides in the car. At the time of the accident in question he did not have the permission of his father to use the car and he was not using it upon any business of the latter and his father had no knowledge that the car was being used by his son'.

The facts in this case are analogous to those appearing in White v. Seitz, 342 Ill. 266, wherein the cases of Arkin v. Page, 287 Ill. 420; Graham v. Page, 300 Ill. 40; and Gates v. Mader, 316 Ill. 313, are discussed and distinguished and the court announced the following conclusions: “These three are the cases which announce the law in this State, and they establish these propositions: That a parent is not liable for the tort of his minor child merely from the relation; that the owner of an automobile who merely permits another to use it for his own purposes is not liable for the negligence of the person so using it; that the owner of an automobile is not liable for an injury occasioned by the negligent use of the machine by his servant if the servant was at the time at liberty from the service of his master and not engaged in doing his master’s business but was pursuing his own interests exclusively; and that the relation of master and servant is not established between the owner of an automobile and his minor son by the mere fact that the father purchased the machine for the pleasure of the family and that he permitted his son to use it for his own pleasure. ’ ’

The judgment in this case is reversed and the cause remanded.

Reversed and remanded.


text:
    Commercial Credit Trust, Appellant, v. Clifford J. Beck, Appellee.
    Gen. No. 8,455.

      Opinion filed April 14, 1931.
    Herbert J. Ferguson, A. M. Fitzgerald and Evan Worth, for appellant; Herbert J. Ferguson, of counsel..
    O. Everett Smith, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

On September 27, 1929, Clifford J. Beck, appellee, purchased from the Capitol Motors Inc. of Springfield, Illinois, an automobile under a conditional sales contract whereby he paid $15 cash and was allowed a credit of $500.40 for another automobile traded in, leaving a balance of $1,186 vdiich was evidenced by a note which was to be paid in 16 equal instalments commencing one month from the date of contract. The contract provided among other things that if the purchaser should fail to pay said note or any instalment thereon, . . . or if for any other reason' seller should deem itself or said car insecure, seller or his representative may take possession of said car and all equipment, accessories or repairs thereon, which shall be considered a component part thereof, wherever it may be found and may enter any premises therefor without notice or demand to purchaser and without legal process, and purchaser waives all claims for damages caused thereby, and the holder of said note may declare it due and payable. The contract further provided that title to said car shall remain in seller until all amounts due hereunder are fully paid in cash and said note for the contract may be negotiated or assigned or the payment thereof renewed or extended without passing title of said car to purchaser.

On the reverse side of the contract is what is named thereon, “Buyer’s Statement.” This statement in so far as it pertains to the questions involved in this' suit is as follows:

“Buyer’s Statement.

Please answer all questions and fill in all blanks. Dated at Springfield, Ill. this 27th day of Sept. 1929 To Capitol Mtrs. Inc. and to Commercial Credit.Trust or Midwest Commercial Credit company.

In order to secure credit from the above-mentioned Dealer and induce the above-named Tfust or Company to purchase any purchase money obligation which may be executed by me (us) in connection with such credit, I (we) make the following representations : . . . Occupation Clerk Employed by Montgomery & Swingle, Lincoln, Ill.

How long? 3 yrs.

Income: If monthly $225.00 per month.”

The note accompanying the contract is in the principal sum of $1,186.40 and provides that it shall be paid in 16 instalments of $74.15 each on the 27th day of each month commencing on the 27th day of October, 1929. The note also provides that it shall become due and payable in the event of the nonpayment at maturity of any instalment. The contract and note were assigned to Commercial Credit Trust, appellant.

The suspicions of appellant having been aroused by the statement that appellee was receiving $225 per month as a clerk, instituted an investigation and ascertained that he was not employed and had not been employed by the firm of Montgomery & Swingle and was not being employed by anyone nor was he receiving $225 per month on account of any employment. On October 11, 1929, appellant brought this action in replevin to recover the automobile. The sheriff executed the writ as to the property on December 5, 1929, recovered its possession and delivered the same to appellant. On July 22,1930, the cause was submitted to the court for trial, a jury having been waived. The court found the right of possession of the car to be in appellee and entered judgment accordingly, to reverse which this appeal is prosecuted.

The first instalment on the note was not due at the time of the institution of the replevin suit and it is insisted by counsel for appellee that no rights of appellant in the property had accrued by reason of the failure to pay any of the instalments. As to the false answers made by appellee in the buyer’s statement in regard to his employment and the amount of his income, appellee attempted to avoid the same by testifying that he signed the statement at the request of the agent of Capitol Motors Inc. without reading the same or knowing the contents thereof and therefore should not be held liable for any answers written therein by the agent. It is not claimed by appellee that he did not read the sales contract and did not know of the provisions thereof. Appellant was a bona fide purchaser for value of the contract and note. When it made the discovery that appellee was not employed by the firm of Montgomery & Swingle and was not receiving an income of $225 per month, it had reasonable grounds to suspect fraud on the part of the purchaser and to deem itself insecure and cannot be said to have acted in bad faith in recovering the possession of the car.

Section 22 of the Replevin Act (Cahill’s St. ch. 119, H 22) provides that if the right of property is adjudged against him, judgment shall be given for a return of the property and damages for the use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, when judgment may be given against him for costs and such damage as the defendant shall have sustained. Appellant offered to prove that appellee never made any payments on the note and that at the time of the trial July 22, 1930, there were 11 instalments due and unpaid thereon. Under the section of the statute above quoted, it was error for the trial court not to admit this evidence and find the rights of the property in appellee as appellant had a clear right to the possession of the car because of the default in the payment under the contract and note. Chase Bros. Piano Co. v. Conners, 182 Ill. App. 418. The above section of the statute was passed for the purpose of avoiding a multiplicity of suits and needless litigation.

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

Reversed and remanded.


text:
    LeRoy State Bank, Appellee, v. J. Keenan’s Bank et al., Appellants.
    Gen. No. 8,475.

      Opinion filed April 14, 1931.
    Herrick & Herrick and Stone & Taylor, for appellants.
    W. W. Whitmore and Sigmund Livingston, for appellee ; Lederer, Livingston, Kahn & Adler, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.

This case is here on a second appeal. On the first trial this court affirmed a judgment in favor of appellee in the sum of $75,120.91. (253 Ill. App. 51.) The Supreme Court granted a certiorari and the opinion of that court is reported in 337 Ill. 173. The history of this litigation appears fully in the above opinions and need not be repeated here.

This suit is based upon a tripartite contract wherein the LeRoy State Bank was party of the first part, J. Keenan’s Bank party of the second part and eight individual directors of the latter bank were parties of the third part. This contract is set out fully in our former opinion but in order to discuss some of the errors assigned it is convenient if not necessary to restate a portion thereof as follows:

“Memorandum of agreement entered into this 25th day of January, A. D. 1924, by and between the LeRoy State Bank of LeRoy, Illinois, party of the first part, and J. Keenan’s Bank of LeRoy, Illinois, party of the second part, each of said parties being banking corporations, and A. Jay Keenan, L. C. Keenan, R. H. Road-man, D. F. Vandeventer, E. E. Sargent, C. J. Null, Hugo Pfitzenmeyer and Frank C. Farley, who now constitute the board of directors of J. Keenan’s Bank and who in this instrument contract as individuals, parties of the third part:

“Witnesseth: That the party of the first part agrees to assume, and does hereby assume, all liabilities of the party of the second part except its liability to its stockholders, which said liability assumed is shown by schedules hereunto attached numbered 1 to 6, inclusive, and made a part of this agreement. As a part of said liabilities assumed shall be included interest upon such items up until the 25th day of January, 1924, in so far as the same shall be paid by the party of the first part.

“Party of the second part agrees to transfer, and does hereby transfer, assign and set over, all of the assets of the said J. Keenan’s Bank, said assets being shown by exhibits hereunto attached and numbered 1 to 17, inclusive, and does agree to transfer by a good and sufficient warranty deed executed by the president and cashier of said bank under the authority of a resolution of the board of directors of the said second party, the real estate of said second party as shown in exhibit attached, the title to the same to be free and clear from encumbrances as shown by an abstract broug’ht down to date, except taxes for the year 1923, which said first party agrees to pay and deduct from the purchase price of said building as hereinafter set forth, and party wall agreements, if any.

“Parties of the third part, in consideration of the covenants and agreements of the party of the first part and party of the second part as above set forth, do hereby covenant for themselves that they will, and do hereby fully guarantee the said party of the first part that the said assets so taken by it from said party of the second part shall be sufficient to liquidate the liability assumed by the said party of the first part.

“Parties of the third part further covenant with party of the first part that said guaranty shall extend for a period of three (3) years, or such part thereof as may be necessary in order to enable the said party of the first part to liquidate the assets turned over to them to the extent that may be required to fully satisfy the liability assumed by the said party of the first part.”

After the cause was remanded to the trial court by the Supreme Court appellants asked leave to file the plea of non est factum which was denied and this ruling of the court is assigned as error. The contract provides that the liabilities assumed by the LeBoy State Bank are those shown by schedules attached to the contract numbered 1 to 6 inclusive and made a part thereof. The contract also provides that the assets to be assigned to the LeRoy State Bank by J. Keenan’s Bank were snch as were shown by exhibits thereunto attached and numbered 1 to 17 inclusive. It is now claimed that, as a matter of fact, the aforesaid schedules of liabilities and assets were never attached to the contract and therefore there never was any execution of the contract and that appellants had the right to present that issue. This contention cannot be sustained for several reasons. During the three-year period of liquidation of J. Keenan’s Bank by the State Bank of LeRoy all parties to the contract acted as if said schedules were a part of and attached to the contract and appellants received the benefits of the contract. The contract itself was recognized on the former trial in the trial court as a valid contract, also in this court and in the Supreme Court and appellants solicited a construction of said contract which was given both by this court and the Supreme Court. These schedules were at all times treated by all parties to the contract as having been attached to the contract. The Supreme Court said, “Attached to this contract were the seventeen schedules referred to in it showing the assets and liabilities of J. Keenan’s Bank,” and then proceeds to set out the items of the assets mentioned in the schedules. It was held in the case of Stevenson v. Stevenson, 297 Ill. 338, that a party to an action having taken a position that devises in a will are invalid for misdescription will not be allowed on second trial, after obtaining reversal of the decree upholding the will, to change their position entirely and file an amended answer asking the court to sustain the will as to them on the ground that the testator put them in possession of the land on the promise to devise it to them and that they have made leases and valuable improvements thereon. In the case of Republic Life Ins. Co. v. Swigert, 135 Ill. 150, it was held that where a cause was submitted to the Supreme Court upon a certain theory by both parties to the controversy one of the parties upon a petition for a rehearing would not be allowed to submit the issues upon another theory. In the case of Doyle v. Sanford, 26 Ill. App. 156, it was held that in a proceeding to redeem certain mortgaged premises, wherein complainant was defeated upon the first appeal on the question of claiming the benefit of the usury statute, he could not, upon a second appeal, rely upon the claim of tender since the two claims are inconsistent. 'Appellants having acted throughout the period of liquidation on the theory that the schedules mentioned were a part of the contract and having recognized them as such, and having presented that theory to the trial court, to this court and to the Supreme Court and having obtained a construction of the contract and of their rights thereunder are now estopped from claiming that the contract was never completed because the schedules mentioned therein were never attached thereto.

On March 22, 1930, the court granted a continuance of this cause upon motion of appellants on the ground of the sickness of R. H. Roadman, one of the parties defendant. On May 8, 1930, appellants again filed a motion for a continuance upon the same ground and in the affidavit filed in support of the latter motion it was set forth:

“That said Roadman was a material witness and that if called would testify to the effect that the purported contract was not the contract signed and executed by him, that he executed a portion of said contract upon the agreement and understanding that schedules listing all the assets of J. Keenan’s Bank would be attached thereto and become a part thereof before delivery; that the plaintiff would take over all of the assets of J. Keenan’s Bank and would assume all the liabilities; that the purported schedules and exhibits mentioned in the declaration as a part of said alleged contract did not contain all of the assets and liabilities as agreed upon when the contract was executed; that the said issue would be controverted and the evidence conflicting, and that if defendants are deprived of the testimony of Roadman their cause will be greatly prejudiced, that there is no other person or persons by whom defendants can so fully prove the facts to which said Roadman would testify if present. ’ ’

The court denied the motion. From what we have heretofore said, the facts set forth in the affidavit as to which Roadman would testify would have been incompetent and irrelevant and it was not error to overrule the motion for a continuance.

Numerous books of account and other documents pertaining to the collection of the assets and the payment of the liabilities were introduced in evidence and it is claimed that this was error on the ground that they were incompetent. We held in our former opinion that such books of account were competent evidence and that question as a general proposition is res adjudícala. On the former trial of the case and in this case expert accountants, from an examination of said books and documents, testified as to the results reached by them from such examination. In passing upon the evidence of the expert accountants who testified on the former trial the Supreme Court held: “While the material contents of an existing book of original entry which is obtainable cannot be proved by parol testimony, because the book is the best evidence, yet where the originals consist of numerous documents, books, papers or records which cannot conveniently be examined in court and the fact to be proved is the general result of the whole collection, any competent witness who has examined the originals may testify as to such result, provided it is capable of being ascertained by calculation. (Inter-State Finance Corp. v. Commercial Jewelry Co., 280 Ill. 116; People v. Gerold, 265 id. 448.) It is in the discretion of the court to admit such statements or schedules or figures or the results of the examination of numerous documents or account books to be introduced in evidence, such statements, schedules or results to be verified by the testimony of the witness by whom they were prepared, allowing the adverse party an opportunity to examine them before they are admitted in evidence and to examine the witness from the original books, where such books are accessible. (People v. Sawhill, 299 Ill. 393.) While the results of the examination of voluminous documents, writings, records and books may be proved by expert accountants or other competent person who has made the examination, the documents, records or books upon which the examination is based must be of such a character as to be themselves admissible in evidence. The oral evidence is admissible because the voluminous character of the instruments of evidence precludes their examination in court, and the testimony to results reached by their examination is merely a statement of what those instruments show. It was therefore necessary that the books and papers which the expert accountants examined should themselves have been competent evidence. In order to render an account book admissible in evidence' it is essential that proof as satisfactory as the transactions are under the circumstances reasonably susceptible of, shall be given that the entries made are correctly recorded. (People v. Small, 319 Ill. 437; Chisholm v. Beaman Machine Co., 160 id. 101; House v. Beak, 141 id. 290.) Where the testimony of a witness who made the entries is not available it is competent to establish the authenticity of the book by other evidence. The only evidence produced of the authenticity of the books which the accountants examined is the testimony of the cashier of the LeRoy Bank. He did not become cashier until three months after the making of the contract and the transfer of the assets to that hank. He did not make all the entries in the hooks. He did not testify, and could not testify, to the correctness of all those entries. Entries were made by the assistant cashier and other persons whose names were mentioned in the cashier’s testimony, but they were not called to show that the entries were correctly made, and there was no testimony that they were not available. Exhibit A-20, which was used in reaching the results arrived at by the accountants, was in large part not a book of original entry, but was, so far as more than half of the period which it purported to cover was concerned, copied from other books to whose authenticity and correctness no one testified. For these reasons the books were not admitted in evidence. The conclusions of the accountants, however, based on these books, which were not so verified as to make them competent evidence, were received and were made the basis of the judgment which was rendered. The court instructed the jury, in determining the amount the plaintiff was entitled to recover, to consider its entire claim to be $79,825.70, which Geiger testified was the corrected amount of the deficit due from the defendants on April 26, 1927. Since the books were not shown to be competent evidence the statement of the conclusions reached by a consideration of them was not competent evidence and should not have been admitted.” On the last trial of the case all the entries made in the books of account, records and other documents admitted in evidence were verified by those who made them and they were admitted in evidence and the testimony of the expert accountants was based upon such verified accounts and the error in the admission of the testimony of the expert accountants on the first trial was thereby obviated on the last trial. The evidence on this appeal, except as to the verification of the books of account and other records, is substantially identically the same as that introduced on the first trial, but it is again urged on this appeal that the appellants were damaged because appellee did not use its best efforts to collect some of the assets and again three transactions are presented as examples, to wit: the Bailey account, the Crosson account and the Phillips account. The questions involving these accounts were passed upon by this court on the former appeal and by the Supreme Court and are also res adjudicata.

In writing up the judgment in this case the clerk omitted therefrom A. J. Keenan, one of the defendants and who had been defaulted. This clerical error was afterwards properly corrected as shown by the additional transcript of the record filed herein.

At the close of all the evidence the court gave a written instruction to the jury directing them to find a verdict for the plaintiff in the sum of $70,836.14. The court did not require the jury to write out a formal verdict but entered the verdict on his docket and it is claimed this was error. This assignment of error cannot be sustained for two reasons. No such question was raised or presented in the trial court and cannot be raised in this court for the first time. Appellants filed written points in support of their motion for a new trial and repeatedly recognized that a verdict was in fact rendered. Among the points so filed were the following in substance: The court improperly fixed an incorrect sum to be returned in said verdict; the verdict is contrary to the law and the evidence in the case; the verdict is contrary to the manifest weight of the evidence; the verdict is inconsistent with the bill of particulars. The second reason is that under such circumstances it is not required that the jury sign a formal written verdict. In the case of Evaniski v. Mt. Olive & Staunton Coal Co., 223 Ill. App. 33, it was held: “Plaintiff could not be permitted to contradict the record which shows that the jury returned a verdict of not guilty by the affidavits of some of the jurors. When the court directs the jury as to the verdict to be returned, it is not necessary that a verdict be actually written out and signed by the jury and returned into court.” In an analogous case, Kinser v. Calumet Fire Clay Co., 165 Ill. 505, the court said: “The contention that it was error to refuse to allow the jury to be polled after it had obeyed that instruction is, in our opinion, wholly without merit. The peremptory instruction to find for the plaintiff was, in effect, taking the case from the jury. When the court directs a verdict an issue of law is raised upon the whole case, and there is no fact for the jury to find. To poll a jury upon the rendering of such a verdict would be an idle ceremony, resulting in no possible benefit to any one.”

Another error assigned is that the amount found to be due by the court was erroneous but it is not suggested by counsel for appellants, aside from their contention that no interest should have been allowed, as to what the proper amount should have been. Upon the former appeal, where the evidence in regard to the accounting between the parties to the contract was substantially the same we gave the question of accounting between the parties to the contract a very careful consideration, reviewed the same to the best of our ability and concluded that the evidence fully sustained the amount of damages fixed by the jury in that case which was larger than the amount which the court on the last trial directed the jury to find. While it is true that the court in arriving at the amount due took as a basis the audit made by the expert accountants, yet he did not adopt the same but considered the whole evidence and allowed credits to the amount of $2,220.75 to be deducted therefrom. Whether the allowance of these credits was correct is a question not before us for determination. The record in this case consists of over 4,350 pages contained in six large volumes, and embraces all the transactions in the process of liquidation over a period of three years and our conclusion is from the evidence that the court allowed appellants all the credits that they were entitled to under the law.

. It is assigned as error that the court allowed interest on the balance found due from the date of the institution of the suit to the day of the verdict. It is claimed by counsel for appellants that no interest should have been allowed for the reason that paragraph 2, Cahill’s St. ch. 74, in relation to the allowance of interest has no application to this contract. This statute is as follows: “Creditors shall be allowed to receive at the rate of five per centum per annum for all moneys after they become due, on any bond, bill, promissory note or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance. ” It is contended that interest on appellee’s claim is not governed by that provision of the above section which allows interest money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance because the account was never liquidated. An account may be liquidated although the amount may be undetermined. At the end of the three-year period provided by the contract of guaranty the amount could not be accurately ascertained. It is also contended that under the doctrine of ejusdem generis a contract of guaranty cannot be considered under the designation of “or other instrument in writing.” This construction sought to be placed upon the statute in our opinion is entirely toó narrow and not in accordance with the construction that has been placed upon those words by the Supreme Court. In Smith v. Gray, 316 Ill. 488, the suit was upon a contract for remodeling a house, and the defendant claimed damages caused by reason of delay in the performance of the contract. In Heissler v. Stose, 131 Ill. 393, the suit was to recover rent under a written lease, the amount of rental to be fixed by referees in case the parties failed to agree. In each of these cases the amount due under the contract was not fixed but was undetermined and the court held that the contract in question was embraced in the words, “other instruments in writing.” The court did not err in allowing interest on the principal amount.

Appellee has filed a cross error to the effect that the court erred in its calculation of the interest. It is claimed that after the suit was commenced and between February 10, 1927, and March 3, 1930, assets of' J. Keenan’s Bank were collected to the amount of $19,226.42 and that the court in fixing the principal debt first deducted this amount from the amount due at the time of the institution of the suit, while the correct way of ascertaining the interest under such circumstances would be to take the principal sum due January 26, 1927, and as these different items were received by appellee, to first apply them upon the interest due at the time each was received respectively and any balance thereon remaining after the application on the interest, be deducted from the principal debt. Without passing upon the merits of this contention, it is sufficient to say that while an enumeration of these subsequently collected assets are set out in the brief of appellee, no references are made to the abstract where any of them can be found and this court cannot under the rules be required to examine 4,000 pages of record in order to ascertain the correctness of this contention. The cross error of appellee is overruled.

In our judgment there is no reversible error in the record. The judgment of the circuit court is affirmed.

Affirmed.


text:
    Austin E. Burns, Administrator of the Estate of Edward Lee Tippey, Deceased, Defendant in Error, v. N. F. O’Hair, Plaintiff in Error.
    Gen. No. 8,496.

      Opinion filed April 14, 1931.
    O’Hair & McClain, for plaintiff in error.
    Miller, Elliott & Westervelt and LeForgeb, Samuels & Miller, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.

In an action on the case the defendant in error recovered a verdict and judgment in the sum of $3,500 against the plaintiff in error as damages resulting from the death of Edward Lee Tippey, deceased.

The suit was originally brought against the defendants N. F. O’Hair and Macon County Fair Association, Inc. At the close of plaintiff’s evidence Macon County Fair Association, Inc., was dismissed out of the case. The declaration consisted of four counts. As to the second count, which was based upon wilfulness and wantonness, the trial court instructed the jury to find the defendant O’Hair not guilty. The first count in substance charges that the defendants on the 4th day of July, 1927, were in control and possession of, using and operating a certain parcel of land in the county aforesaid, containing what is commonly known as a race track, commonly known as “Macon County Fair Grounds,” for the purpose of conducting, to wit, automobile races, which said fair grounds were then and there under the care and management of the defendants and their servants; that said Tippey was then and there in control of, possessed of and driving a certain motor vehicle, to wit, automobile in, to wit, the afternoon of said day and was at that time and at all other times using all due care and caution for his own safety while engaged in driving and operating his automobile in one of the automobile races conducted then and there by the defendants; that defendants represented to plaintiff’s intestate that the said race track was in a fast and safe condition and to be fit and suitable for the purposes and uses for which the defendants were then and there using and operating said race track, but that the defendants so carelessly and negligently maintained said race track in that they permitted and allowed a certain obstruction, to wit, broken board or plank which theretofore had been a part of the fence or railing surrounding said race track, to protrude or extend out into the said race track in a turn in said race track in and toward the direction from which the said automobile operated by plaintiff’s intestate was then and there- being driven in said auto race and that when plaintiff’s intestate was then and there' making said turn and was using all due care and caution for his own safety, that by and through the carelessness and negligence of the defendants as aforesaid, the said board or plank struck with great force and violence against the body of plaintiff’s intestate and that said board or plank penetrated the body of plaintiff’s intestate and that as a proximate result thereof plaintiff’s intestate was then and there killed.

The third count is substantially identical with the second count.

The fourth count after setting out the preliminary averments as in the first and third counts charged that it was the duty of the defendants to provide a reasonably safe track and to maintain and keep the same in a reasonably safe condition, so as to be fit and suitable for the purposes and uses for which the defendants were then and there using and operating said race track but that the defendants, in violation of their duty in that behalf, carelessly and negligently kept and maintained said race track, in that the defendants permitted and allowed a certain obstruction, to wit, broken board or plank which theretofore had been a part of the fence or railing surrounding the race track to protrude or extend out into the said race track in a turn therein in and toward the direction from which the said automobile operated by plaintiff’s intestate was then and there being driven in said race and that when plaintiff’s intestate was then and there making said turn and was using all due care and caution for his own safety, the said board or plank struck with great force and violence against the body of plaintiff’s intestate by means whereof the latter was then and there killed.

The defendants filed a demurrer to the declaration which was overruled and thereupon they pleaded the general issue thereto.

The defendant N. F. 0 ’Hair, plaintiff in error here, made a motion at the close of plaintiff’s case and also one at the close of all the evidence to instruct the jury to find him not guilty. Each motion was overruled. Motion by plaintiffs in error to set aside the verdict and for a new trial and in arrest of judgment were also overruled. The actions of the trial court in overruling each of these motions are assigned as errors as is also the overruling of the demurrer to the declaration.

If a party pleads over after his demurrer to the declaration has been overruled, he thereby waives the demurrer and the right to assign error upon such ruling, and also, after a judgment overruling a demurrer, he cannot avail himself of any exceptions to the declaration that could have been presented on the demurrer, by a motion in arrest of judgment. Chicago & Alton R. Co. v. Clausen, 173 Ill. 100, and cases cited, but in the above case it was also held:

“While the defendant, by pleading over, waived its demurrer and the right to assign error upon the ruling of the court on the demurrer, it did not waive innate and substantial defects in the declaration which would render the declaration insufficient to sustain a judgment, and the question whether it is so far defective may be considered under the assignments of error.” It is obvious that there are no facts set out in the declaration in this case which would show or tend to show that the plaintiff in error owed any duty whatever to the deceased. It is not alleged that the deceased drove said automobile in said race at the invitation, consent or even knowledge of plaintiff in error but it is contended by defendant in error that even if the declaration was bad upon demurrer the defects therein were cured by the verdict. The common law rule upon this question is that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict. In the case of McAndrews v. Chicago, L. S. & E. Ry. Co., 222 Ill. 232, it was held: “In actions of the character of this it is necessary to aver and prove three elements to make out a cause of action: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure. When these three elements concur they unitedly constitute actionable negligence, and the absence of any one of these elements, either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence, even after verdict or the proof to establish a cause of action involving actionable negligence; (Schueler v. Mueller, 193 Ill. 402; Mackey v. Northern Milling Co., 210 id. 115; Faris v. Hoberg, 134 Ind. 269, 33 N. E. Rep. 1028;) and it is not sufficient in the declaration to allege that it is the duty of the defendant to do certain things, as that would be but the averment of a conclusion, but the declaration must state facts from which the law will raise the duty. Ayers v. City of Chicago, 111 Ill. 406; Chicago & Alton Railroad Co. v. Clausen, 173 id. 100; Schueler v. Mueller, supra.

In the case of Bahr v. National Safe Deposit Co., 234 Ill. 101, the McAndrews case was approved and the court said in regard to the declaration in the case under consideration:

“By reference to the first count of appellant’s original declaration it will be seen that there is no averment of any duty owing to appellant’s intestate to protect him against injury from falling into the air-shaft. It is not stated why the deceased was upon the premises. For naught that appears he may have been a trespasser. The original declaration was therefore wholly insufficient to support a judgment because of the absence of an averment showing the existence of a duty on the part of appellee to protect appellant’s intestate from the injury complained of. The second and third counts of the original declaration were defective in the same respect as the first. There being no cause of action stated in the original declaration, it did not arrest the running of the Statute of Limitations against the cause of action stated in the amended declaration. ’ ’

The declaration in the case at bar is insufficient to sustain a judgment and the defects therein were not cured by the verdict.-

Neither do the proofs sustain a cause of action. On July 4, 1927, plaintiff in error and the Macon County Fair Association, -Inc., projected an automobile racing exhibition on the race track at the Macon County Fair Grounds. Entries were received from various owners and drivers of racing cars. -Each entry of a car in these races was made by a written entry agreement containing numerous provisions and conditions. These entry contracts or agreements had to be signed by the driver of the car, the owner thereof and the mechanic in attendance. It also provided for an entry fee. Plaintiff’s -intestate lived in Peoria, Illinois, was a garage mechanic and worked for the witness Clark Caldwell in the latter’s garage. He and his wife and Mr. Caldwell and his wife went to the races on the day in question as spectators. • The deceased had no intention of participating therein either ás an owner, driver or mechanic. A man by the name of Joe Faso, who lived at Chicago Heights, had a car at the races which he desired to enter therein but had no driver for it. Sometime during the afternoon before the accident happened he asked the deceased to drive his car and this the latter proceeded to do. No written entry was made by either Faso or the deceased. In a preliminary race prior to the one in which deceased was killed the driver of another car crashed through the fence which surrounded the track. This fence consisted of pickets nailed onto a 2x4 timber at the bottom and another one at the top. The fence was broken by this accident and there is a sharp conflict in the evidence as to the condition of the fence after the accident. Caldwell and another witness testified that after the accident one of these broken 2x4’s extended out three or four feet over the track, while several other witnesses testified that this timber "did not extend out over the track but remained in the line of the fence and that the car of the deceased as he approached the vicinity of the broken fence skidded toward the north and then toward the south against the end of the broken timber. There is no evidence in this record that plaintiff in error knew that the deceased was going to drive Faso’s car or that he did drive the same until after the accident. The only evidence which might possibly sustain an inference to this effect is that of Caldwell who testified: “I was present when Tippey negotiated with some persons relative to entering this car in the races. Myself, Tippey and Mr. O’Hair were in the judge’s stand and several others, I don’t recall exactly who they were. There was a car there from Chicago without a driver, the way I heard it, and these people, the owners of the car, came to Tippey and asked him to drive the car, and Mr. Tippey accepted. Mr. O’Hair was there.” There is no evidence that plaintiff in error heard the negotiations between Tippey and Faso or was in a position where he could hear. The fact that neither Faso nor Tippey signed any entry agreement would strongly support the theory that plaintiff in error had no knowledge of the agreement between Tippey and Faso. Over the objection of plaintiff in error the court admitted a blank copy of the entry agreement used for these races. The last paragraph of the entry agreement is as follows: “We, the undersigned, hereby waive any and all rights to bring any action or actions of any kind or character against the management of-the Macon County Fair Association, Inc., or any of its agents, and do hereby waive any and all rights to bring any action against the management of O’Hair Auto Races, or any of its agents, for any injury to my person or property, of any nature whatsoever, resulting from any participation in any race in which the undersigned participates, regardless of the manner or cause from which said injury may arise. I further agree that this waiver of any right of action against said parties, as set forth herein, shall extend to any and all property owned by said parties, and not alone to property immediately connected with the racing track; and I further agree that this waiver shall extend to any and all injuries to my person or property caused in any nianner whatever on said property, by the management, or the agents, servants, employees, and helpers of said parties whether said injuries are received on premises under control of said parties, or going to or from said premises.” This copy which was admitted in evidence and marked Exhibit 2 (and which it is conclusively proven the deceased did not sign), if competent for any purpose, was competent for all purposes as its admission was not limited for any particular purpose, and is a complete waiver of any cause of action.

Neither the pleadings nor the proofs support the judgment in this case. The judgment is reversed and the cause remanded.

Reversed and remanded.