author: Mr. Justice Friend

text:
    In re Estate of Hartvig A. Hanson, Deceased. Walter B. Rae, Appellant, v. Sophia W. Hanson, Executrix, Appellee.
    Gen. No. 40,827.
    Heard in the second division of this court for the first district at the October term, 1939.
    Opinion filed February 23, 1940.
    John M. Bryant and Henry L. Wells, both of Chicago, for appellant.
    Lee J. Frank, of Chicago, for appellee; Charles H. Pease, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Walter B. B,ae filed a claim in the probate court against the estate of Hartvig A. Hanson, deceased, for $43,000, predicated upon an alleged oral contract for the acquisition of 100 shares of the capital stock of Hanson Brothers Company, a corporation, and damages resulting from the breach thereof. The probate court denied the claim and Eae thereupon took an appeal to the circuit court, where, pursuant to a full hearing, the claim was again disallowed. Eae appeals.

It appears from the evidence that prior to 1927 Eae had been employed by Pickands Brown & Co. for some 13 years. He was a nephew of Hartvig Hanson, the deceased, who owned 200 shares of the capital stock of Hanson Brothers Company, a corporation, out of a total issue of 300' shares. The other 100 shares were owned by Harvey Hanson, another nephew, who had been in the employ and associated with Hanson Brothers Co. for some time. Hartvig Hanson had had some difficulties with his nephew, Harvey, and decided to bring Eae into the firm to assist him. The claim is predicated upon an alleged oral agreement entered into between Hartvig and Eae on or about October 1, 1927, by which Hartvig “promised that if Walter B. Eae would leave his then employment and enter the employment of Hanson Bros. Company, a Corporation, he would sell to Walter B. Eae one hundred (100) shares of capital stock of said Company at the then book value of said stock, which was the sum of $32,197.52, which sum was to be paid to Hartvig A. Hanson by Walter B. Eae from the earnings of said stock. Walter B. Eae relying upon said promises, left his employment and entered the employment of Hanson Bros. Company, a Corporation, on or about January 2, 1928, and continued in said employment until after the death of Hartvig A. Hanson. There has been paid by Walter B. Eae on account of the purchase price of one hundred (100) shares of capital stock of Hanson Bros. Company, a Corporation, $16,000.00, and at Hartvig A. Hanson’s death there remained due on account of said purchase price $16,197.52. That after the death of Hartvig A. Hanson, Walter B. Eae requested Sophia W. Hanson, Executrix of the Estate of Hartvig A. Hanson, Deceased, to deliver to him the shares of stock as promised by deceased, and offered to pay the balance of the purchase price, and Sophia W. Hanson, as" such Executrix, failed and refused to deliver said stock to Walter B. Rae, to his damage of $43,000.00.”

The defenses interposed to this claim were threefold: (1) that there was no such contract or agreement as set forth and alleged in the claim; (2) that the claim being based on an oral contract is barred by the statute of limitations, since the cause of action did not arise within the period of five years prior to the death of Hartvig A. Hanson; and (3) that the alleged agreement, purporting to be a contract for the sale of goods of the value of more than $500, and no part of the goods having been received by claimant nor anything given in earnest to bind the agreement, nor any memorandum in writing having been made, as required by statute, was therefore not enforceable.

Some twelve witnesses testified on behalf of claimant. Several of them had transacted business with Hanson Bros. Company through Hartvig Hanson; others were related to Rae and Hartvig. Their testimony was generally to the effect that Hartvig had told them that Rae had joined the company, that he was secretary thereof, that he “had a substantial interest in the company,” that he was a “partner,” that “Walter Rae should certainly work hard, because he has a substantial interest in this company,” that “Walter is the only other party that has an interest in this company,” that, referring to Rae, Hartvig said, “Here is a man that takes Harvey’s place,” that when Hartvig’s attention was called to the fact that Rae had “left a pretty good job,” Hartvig said, “I don’t know, he is a partner,” and various expressions of a similar nature.

The evidence most favorable to claimant’s contention that an oral contract such as he claims was made in 1927, was offered by C. H. Scott, who was engaged in the investment banking business in Chicago, and nad known Walter Rae for several years. Scott first met Hartvig Hanson late in 1927, in the office of John Burnham & Co. Rae was with him at the time, and discussed with Scott some securities he had contemplated buying and selling. The same parties met again in the fall or summer of 1928, also in Burnham’s office. Scott said that he then had a conversation with Hartvig Hanson, wherein the latter asked Scott about an offer that Scott had made to Rae of a position with the firm that Scott contemplated organizing at the time. Hanson then told Scott that he needed a man in his office of Rae’s type; that Rae had the desired experience, and was a person in whom Hartvig could place reliance and responsibility. Hartvig also told Scott that he had had some difficulties with another relative (Harvey Hanson), and “that he was out, and that-Walter had come in and was doing the job properly.” Scott told Hartvig that he wanted Rae because over several years he had shown an aptitude for Scott’s type of business; that he (Scott) had resigned his position with Burnham & Co., had purchased a membership in the Chicago Stock Exchange, and needed a trustworthy man to look after the banking end of the business. Hartvig replied that Walter was “doing a fine job, and he wanted him to stay there.” Scott further testified that following this conversation Hart-vig told him that “he was making the interest that the other relative had available to Walter through purchase by dividends of the corporation,” and that “I am making this available as at the time he started, book value as of that time.”

The fundamental and important question presented is whether Rae established the oral contract upon which his claim is predicated. His counsel say that “upon this question rests the entire-right of the appellant to succeed in the present litigation.” Rae attaches considerable importance to the facts that he left the employ of Pickands Brown & Co. to enter his uncle’s firm; that the 100 shares of capital stock which Harvey Hanson had owned were relinquished to his uncle, Hartvig, in contemplation, as Rae contends, of making them available to Rae when he entered the employ of Hanson Bros. Co.; to the testimony of Johanna Hanson, a sister of Hartvig, that he was to acquire these 100 shares of stock by purchase from Hartvig, “at book value, and he will pay for it just as Harvey did, out of the earnings of the company”; and Scott’s statement that Hartvig told him “he was making the interest that the other relative had available to Walter through purchase by dividends of the corporation,” and “I am making this available as at the time he started, book value as of that time.” The trial judge at the conclusion of the hearing in the circuit court was of opinion that Rae had not sustained his claim by the character of evidence required in proceedings of this kind, and gave it as his opinion that “there is only one witness that comes anywhere near the claim; that was the witness, Mr. Scott. He comes nearer than anybody to making out the claim. No, I think I will sustain the motion and dismiss the claim.”

Undoubtedly the controversy presents a close question of fact, but two judges who heard the evidence disallowed the claim and were evidently not satisfied with the evidence adduced upon the hearings. Courts have repeatedly held that they are not bound to accept testimony, even when uncontradicted, if it is not clear and convincing, or if it is palpably improbable. This is particularly true when it relates to statements attributed to persons that have since died. In the recent case of Moreen v. Estate of Carlson, 365 Ill. 482, plaintiff sued to recover damages for breach of an oral agreement by the deceased to make a will in her favor, and the claimant there produced witnesses who testified that decedent had repeatedly declared that she would receive his property. In commenting on this testimony, the court laid down the rple which has generally been followed under like circumstances, and said (p. 489): “In an action to recover against an estate upon an express contract to make a testamentary provision, uncontradicted testimony may be rejected if not clear and convincing. (McKeon v. Van-Slyck, 223 N. Y. 392.) This court, in Laurence v. Laurence, 164 Ill. 367, well said: ‘Evidence of admissions made by a person since dead should be carefully scrutinized, and the circumstances under which they were alleged to have been made carefully considered with all the evidence in the case. Such evidence is liable to abuse. ’ The Supreme Court of the United States, in Lea v. Polk County Copper Co., 62 U. S. 493, observed that ‘courts of justice lend a very unwilling ear to statements of what dead men have said. ’ ”

In the still later case of Megginson v. Megginson, 367 Ill. 168, the court affirmed this rule, and said (p. 180): “We have recently had occasion to observe that the evidence of admissions made by persons since dead should be carefully scrutinized and considered with all the evidence in the case, as it is likely to be abused.” (Citing Fierke v. Elgin City Banking Co., 366 Ill. 66; Moreen v. Estate of Carlson, 365 Ill. 482.)

In Davidson v. American Paper Mfg. Co., Inc., 188 La. 69, 175 So. 753, the court quoting from Boden-heimer v. Bodenheimer’s Ex’rs, 35 La. Ann. 1005, observed: “Extrajudicial admissions of a dead man are the weakest of all evidence. They cannot be contradicted. No fear of detection in false swearing impends over the witness. In most instances such testimony is scarcely worthy of consideration.”

Applying these well-established rules to the evidence upon which claimant relies, we find that under the undisputed evidence there was no written agreement or memorandum from which the court could determine with any degree of certainty whether an oral agreement was entered into between Hartvig and Eae, and if there was an agreement to show specifically what the terms of that agreement were. In his claim filed in the probate court Eae alleges that he left the employ of Pickands Brown & Co. upon promises made by decedent, but there is no specific evidence to sustain this averment. We only know that he changed his employment in the early part of 1928 and became associated with Hanson Bros. Co. For all that appears of record there may have been other and different reasons for the change. Eae alleges further that he had paid on account of the purchase price of the 100 shares of capital stock $16,000, and that subsequent to Hart-vig’s death, when there remained due on account of such purchase price $16,197.52, he offered to pay the balance and demanded the delivery of the stock.- There is no evidence whatsoever in the record to sustain these allegations. He now proceeds upon the sole theory, which is also alleged in his claim, that the purchase price of this stock was to be paid to Hartvig from the earnings thereof. There is evidence to show that Hanson Bros. Co. had earned considerable sums, on its stock, but during the 10 years from 1928, when Eae entered the employ of his uncle until Hartvig died in 1938, no demand was made by Eae for transfer of any of the stock to him to which he may have been entitled by reason of these earnings. It is undisputed that when Eae entered his uncle’s employ one share of stock was made out in his name. This was evidently done to qualify him to act as secretary of the corporation. At the same time that the stock was issued to Eae he indorsed it and delivered the certificate to Hart-vig. Outside of this one share, no other stock was ever issued to him and no request or demand of any kind was made by him. Moreover, as secretary of the corporation, Eae had access to the books and charge of the records of the corporation; nevertheless, no entries were ever made to indicate that he had purchased any stock or had agreed to do so, and the books contain no entries to indicate that any of the dividends earned by Hanson Bros. Co., or declared upon its capital stock, had ever been credited to Rae in contemplation of such an agreement as he claims. These circumstances undoubtedly influenced two courts to hold that the facts are more persuasive than the evidence of witnesses whose testimony was more or less vague with reference to the express contract upon which Rae’s claim is predicated. It seems strange, indeed, if Rae had such an understanding with his uncle, that during the 10 years following October, 1927, some manifestation of the contract would not have been recorded upon the books of the company or some demand made for crediting dividends earned upon the purchase price of the stock to which Rae claimed to be entitled. No plausible explanation is offered for these omissions, and under the general rule, as expressed in the decisions hereinbefore cited, we think the circuit court properly disallowed the claim.

Inasmuch as Rae’s counsel concede that their entire right rests upon the establishment of the oral agreement, and in view of our conclusion that the proof does not sustain his claim we consider it unnecessary to enter into a discussion of the questions whether the agreement, if any was made, was barred by the statute of limitations, and whether it was in violation of the statute of frauds, although in our opinion there is considerable merit to both of these contentions.

The judges of both the probate and circuit court, who saw and heard the witnesses, were in better position to determine whether the evidence was of the clear and convincing character which the law requires, and both of them held adversely to claimant. The order of the circuit court should be affirmed. It is so ordered.

Order affirmed.

Sullivan, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    David DeMartini, Appellee, v. Joseph DeMartini et al., Defendants. Appeal of Rosa DeMartini, Appellant.
    Gen. No. 40,858.

      Heard in the second division of this court for the first district at the October term, 1939.
    Opinion filed February 23, 1940.
    McFarland, Morgan & Stearns, of Chicago, for appellant.
    Eugene D. Sullivan and John J. Gorman, both of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

By Ms amended complaint, in which legal and equitable issues were joined, David DeMartini sought judgment against defendant Joseph DeMartini on a note executed by him, to set aside an alleged fraudulent conveyance of real estate made by Joseph De-Martini and Ms wife, Eosa, and for specific performance against both defendants, by subjecting the real estate conveyed to the claim and lien of plaintiff on the judgment note executed by Joseph DeMartini. The master to whom the cause had been referred recommended judgment against Joseph DeMartini on the note, that the conveyance of real estate be set aside as having been fraudulently made by both defendants, but refused to recommend specific performance against the whole of the real estate, which was owned in joint tenancy by the DeMartinis, on the ground that the evidence failed to show that the oral promise of Eosa DeMartini to join in a mortgage or sale of the property to pay the note was such a promise as would take it out of the operation of the statute of frauds. Eosa DeMartini appeals from the decree which followed the master’s findings and recommendations, and plaintiff prosecutes his cross appeal from that portion of the decree which found that Eosa DeMartini did not promise to pay the note executed by her husband and to join in a mortgage or sale of their property.

The facts disclose that Joseph DeMartini and his wife, Eosa, purchased the premises at 4850 North Kil-dare avenue, Chicago, in 1923, and took title thereto in joint tenancy. The transaction involved a cash payment of about $3,000 and the assumption of two mortgages aggregating $6,000. Shortly after the purchase, the parties moved into the premises and have since occupied it as their homestead. During the year 1931 Joseph DeMartini borrowed from plaintiff and his wife on three different occasions the total sum of $3,000, for which he gave his I O U. The money borrowed was used in his business. Plaintiff from time to time insisted on payment, and eventually on January 2, 1933, Joseph DeMartim executed and delivered to plaintiff a judgment note for $3,000 to evidence the several sums theretofore borrowed by him from plaintiff. March 31, 1932, which was prior to the execution of the note, Joseph DeMartini and his wife, Eosa, conveyed the real estate in question by warranty deed to Joseph B. Giunta, and simultaneously with this transfer Giunta conveyed the property to Rosa DeMartini. Both deeds were filed for recording April 1, 1932, at precisely the same time.

There is no dispute as to the liability of Joseph DeMartini on the promissory note. The dispute between the parties is lodged in the question whether the conveyances from the DeMartinis to Giunta, and from him to Rosa DeMartini, were made in fraud of cred: itors, and also whether Rosa DeMartini knew of the money borrowed by her husband from plaintiff and agreed orally to assume payment of the promissory note which evidenced his indebtedness to plaintiff and to subject their property to the lien of the note when reduced to judgment.

Voluminous testimony was adduced upon these two questions and the evidence is sharply conflicting. Preliminary to these issues, however, Rosa .DeMartini raises several questions on appeal to which the parties devote considerable argument in their briefs. It is first urged that Giunta, who was named in the complaint as the grantor of the warranty deed to her, is an indispensable party; that the court erred in setting aside these conveyances without notice or service of summons upon him, and that these omissions, although not challenged before the trial court, may be raised for the first time on appeal. It seems clear that if the conveyances were made to defraud plaintiff, as the decree finds, they were fraudulent ab initio, and no rights accrued or liability attached thereunder. No relief is sought as against Giunta and the decree grants none. Giunta had no interest in the property and reconveyed it to his grantor Rosa DeMartini the very instant that she and her husband transferred it to him. Giunta did not furnish any consideration to his grantors nor did he receive any consideration from his grantee for the conveyance. Giunta had the bare naked title but momentarily, and evidently served as a mere conduit to destroy the joint tenancy and thus remove the property from attachment by creditors of Joseph DeMartini who sought payment of his debts. The effect of the decree as to Eosa DeMartini was merely to restore to her the undivided one-half interest which she had in the property before these conveyances were made. The several easels cited by defendant have no application to the circumstances of this case. They involved situations in which the rights of third parties were affected, and lay down the general rule that all persons having a substantial interest in the subject matter of the suit and who will be materially affected by the decree must be made parties. The rule as to nonjoinder of parties is correctly set forth in Pease v. Chicago Crayon Co., 235 Ill. 391, wherein the court pointed out that when the objection of nonjoinder is not taken by demurrer, plea or answer, it will receive little favor from the courts, and “to be of avail it must appear that the decree will have the effect of depriving the party omitted of his legal rights.” State Nat. Banlt v. United States Life Ins. Co., 238 Ill. 148, is to the same effect. Under par. 170, sec. 46(1) of the Civil Practice Act (ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.046]), Griunta could have been brought into the suit at any time before final judgment, but since the evidence showed that he never had any right or beneficial interest in the property conveyed and claimed none, it would have been useless to bring him into the proceeding.

It is next urged that since the property in question was the homestead of Joseph and Eosa DeMartini, it was incumbent upon plaintiff to show that Joseph’s interest was worth in excess of $1,000 before the conveyance could be set aside and the real estate subjected to the lien of plaintiff’s claim. The proof is undisputable that the property purchased for $9,000 in 1923 was free of incumbrance at the time of the hearing and had been improved since its purchase. Aside from this consideration, however, the contention advanced raises an issue personal to defendant Joseph DeMartini, who does not appeal from the decree, and if entertained would merely serve to procure an advantage to him without requiring him to take an appeal and thus relieve him of the necessity of furnishing an appeal bond to secure the Judgment against him. Moreover, the several sections of the statute relating to homestead exemptions (secs. 10, 11 and 15, ch. 52, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.133, 107.134, 107.138]) define the homestead right, the householder who is entitled to it and the manner in which it may be enforced and extinguished, and we think the question of exemption becomes important only after the decree is entered and an attempt is made to levy on and sell the homestead real estate on execution. If execution should issue under the decree entered herein and a sale of the real estate is made it will not be a sale of Rosa DeMartini’s undivided one-half interest under the provisions of the decree and she, therefore, is not injured by the decree so far as the question of homestead is concerned. Furthermore, the decisions cited by plaintiff hold in effect that two separate homestead estates cannot coextensively exist in the same premises at the same time (Johnson v. Munts, 364 Ill. 482); and that if the husband is living and residing with his wife he is the householder contemplated by the statute and the homestead is vested in him (Taylor v. Taylor, 223 Ill. 423; Brokaw v. Ogle, 170 Ill. 115); that after a homestead has been once acquired under the statute it continues in the original owner so. long as he occupies the homestead premises, although he may have ceased to be a householder having a family (Kimbrel v. Willis, 97 Ill. 494); and that the husband is entitled to his homestead interest in the entire property whether he holds title to his one-half of the property as a joint tenant or as a tenant in common (Olp v. Meyer, 277 Ill. 202). It would seem, therefore, that the question of homestead exemption is prematurely urged and that it is raised by an appealing party who has no homestead interest which the decree entered is likely to affect.

The third contention urged, aside from the' main controversy between the parties, is that the allegations of the complaint, the proofs and the decree do not correspond. This contention can be readily disposed of by an examination of the record which discloses that this question was not presented to the trial court by motion or pleading of either defendant and is now submitted for the first time on appeal. However, it relates to a typographical error in the legal description of the real estate not discovered in the trial court. The error is due to a transposition of two numerals by the typist of the pleadings. The range was given the township numeral and vice versa, otherwise the full description is accurate. If this error had been discovered it would have been a simple matter for any of the parties to have called the court’s attention to it and to have had it corrected by amendment on the face of the pleadings. In any event the error was not prejudicial to defendants because they both testified that this particular parcel of real estate is the only one they ever owned and that it is at 4850 N. Kildare avenue, Chicago, Illinois.

With reference to the main controversy it is urged by Rosa DeMartini that in order to impeach a conveyance for fraud both vendor and vendee must be shown to have intended to commit the fraud before the deed can be set aside, and it is argued by her counsel that Rosa DeMartini was not guilty of any fraudulent intent in the conveyances by which she became the owner of the legal title to the one-half interest in the real estate which theretofore stood in the name of her husband and herself as joint tenants. The evidence upon the controverted issues consumed some 300 pages of the record and is hopelessly conflicting. Mrs. DeMar-tini took the position that she did not know her husband was indebted to plaintiff until after the conveyances were made; that the money was lent to her husband at his place of business and was used by him in connection with his business, and that she first learned of the indebtedness late in the summer of 1932, when plaintiff came to the DeMartini home to discuss payment of the debt. Her testimony in this regard contradicts that of her husband and is at variance with the proof adduced by plaintiff, which tends to show that Mrs. DeMartini was aware of the indebtedness. There is likewise a sharp conflict in the evidence with reference to the contention of plaintiff that Mrs. De-Martini gave an oral promise to sign the note with her husband and become liable thereon if plaintiff would surrender the three I 0 Us payable on demand and take in lieu thereof a deferred note due three years after date, or that she had agreed to sell or mortgage the real estate. A recital of the evidence upon these two conflicting questions of fact would extend this opinion beyond all reasonable length. We have read the abstract of record carefully, however, and have reached the conclusion that the master’s findings as to the ultimate facts are fully justified by the record. The repeated demands of plaintiff for payment, of which Mrs. DeMartini undoubtedly had some knowledge before the conveyances were made, resulted in the transfer of the property in the manner hereinbe-fore described, and the transfer was undoubtedly made in fraud of plaintiff’s claim against Joseph DeMartini. On the other hand, we do not believe that Mrs. De-Martini agreed orally to sign the note with her hus-bsmd and thus subject the entire property to plaintiff’s claim, and if she made such an oral promise or one to join in the mortgage or sale of the property to pay the debt, her agreement would not bring the transaction outside the operation of the statute of frauds (ck. 59, sec. 1, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 55.01]).

During the pendency of the appeal several motions were made which were reserved to hearing. One was the motion of appellee to strike the appeal from the docket. That motion is herewith denied. Another is the motion of appellee for leave to file instanter the affidavit of one of his attorneys, and that the affidavit be taken with the case for such action as the court deem meet, and the countermotion of appellant to strike appellee’s motion and affidavit. Since neither of these motions affect the merits of the case, nor the conclusions reached, the first motion will be denied, making it unnecessary to rule on the motion of appellant with reference thereto.

In the light of the conclusions reached herein, we are of opinion that the decree of the circuit court should in all respects be affirmed and that plaintiff’s cross appeal should be dismissed. It is so ordered.

Decree affirmed. Plaintiff’s cross appeal dismissed.

Sullivau, P. J., and Soaulau, J., concur.


text:
    John R. Liss and Louis D. Glanz, Trustee, Appellees, v. Morton E. Harris et al., Defendants. Morton E. Harris and Estelle F. Mayer, Formerly Known as Estelle F. Eckstein, Appellants.
    Gen. No. 40,909.

      Heard in the second division of this court for the first district at the October term, 1939.
    Opinion filed February 23, 1940.
    Aaron Soble, of Chicago, for appellants; Max Chill and Jerome S.. Klein, both of Chicago, of counsel.
    Philip J. O’Mahony and Clarence A. Williams, both of Chicago, for appellees; Claude J. Dalenberg, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

On July 2, 1935, John E. Liss, and Louis D. Grlanz as trustee, filed their complaint for foreclosure of a trust deed executed by Lena Fischman in 1922, wherein certain improved property in Cook county was conveyed to the trustee to secure her promissory notes in the principal sum of $10,000. Some two years prior to the filing of the complaint defendants Morton E. Harris and Estelle F. Mayer had acquired the equity of redemption from Lena Fischman by purchase without assuming the mortgage indebtedness, and they were made defendants in the foreclosure proceeding. During the pendency of the proceeding and before sale a receiver was appointed to collect the rents and he continued in possession during the entire period of redemption, without an order for continuance of the receivership after sale. The property was finally sold pursuant to a decree of foreclosure, leaving a deficiency of $4,107.65, and although the master’s report of sale showing the deficiency was confirmed by the court no deficiency decree was entered at that time. Two months after the expiration of the period of redemption the court approved the receiver’s final report showing a balance on hand of $773.93, and over the objection of defendants Harris and Mayer directed the receiver to pay the moneys collected by him during the period of redemption to the trustee on behalf of the holders of the notes. Lena Fischman was dismissed from the proceeding before the cause was heard by the master and defendants Harris and Mayer, as owners of the equity of redemption claiming the moneys in the hands of the receiver, have prosecuted this appeal from the order thus entered.

The trust deed executed by Lena Fischman in 1922 conveyed to Gflanz as trustee the real estate described therein, together with all improvements located thereon, as well as “all rents, issues and profits of said premises,” and provided that

“The grantor waives all right to the possession of and income from said premises, pending such foreclosure proceedings, and until the period of redemption from any sale thereunder expires, and agrees that upon the filing of any bill to foreclose this trust deed, a receiver shall and may at once be appointed to take possession or charge of said premises, and collect such income, and the same, less receivership expenditures, repairs, insurance premiums, taxes, assessments and his commissions, to pay and apply upon the amount which may be found due said complainant, and to apply the balance upon any deficiency which may arise from such sale. ’ ’

In their bill of complaint plaintiffs allege that the annual income from the mortgaged property was insufficient to meet the current operating expenses and interest dne on the indebtedness; that in the event of a sale under decree the property would not bring an amount in excess of $9,500; that the property constituted scant and inadequate security for the indebtedness and the taxes then in arrears; that the trust deed provided for the appointment of a receiver pending the foreclosure and during the period of redemption; and plaintiffs ask “that a receiver be appointed for the mortgaged property with all the powers usually granted to receivers in like cases,” and “that in case the proceeds from said sale be not sufficient to pay in full the amounts found to be due, a deficiency decree may be entered for the benefit of the holders of the indebtedness and against such of the defendants as may be found to be personally liable, and that execution may issue thereon,” and “that plaintiffs may have such other and further relief as equity may require. ’ ’

After defendants had filed their answers and a counterclaim, which is not the subject of controversy herein, the cause was referred to a master and a decree of foreclosure entered November 23, 1937, finding an aggregate indebtedness of $11,900. The decree provided that Grlanz, as trustee for the benefit of the holders of the notes set forth in the decree, had “a valid and subsisting lien upon said premises and the rents, issues and profits thereof for the sum of $11,900.00; that the lien held by plaintiffs — Louis D. Grlanz as Trustee and John R. Liss— . . . for the benefit of the holders of said notes ... is prior and superior to the rights of all of the defendants hereto other than the holders of said notes.” The decree ordered the master to make a sale of the premises and to distribute the net amount realized from the sale to plaintiffs herein, “and if such remainder shall not be sufficient to pay the amount and the interest, said master shall apply the same to the extent to which it may reach in satisfaction thereof, and shall state the amount of deficiency in his report of sale.”

The master reported a deficiency of $4,107.65 and recommended that a deficiency decree be entered for that amount. The sale was approved December 21, 1938, by a short draft order finding “that the master in chancery in every respect proceeded in due form of law in accordance with the terms of said decree, and that said sale was fairly made; and the court being fully advised in the premises, Doth Order, Adjudge and Decree that the proceedings, sale and report of said Master in Chancery be, and the same is hereby, approved and confirmed.” No mention is made in the order of the deficiency reported by the master, nor was any provision made for continuing the receivership during the period of redemption. Nevertheless, the receiver continued to collect the rents during the period of redemption, and on June 20, 1939, the court approved his final report and distribution of the proceeds.

Prior thereto, May 5, 1939, after the period of redemption had expired, defendants Harris and Mayer field a petition in which they alleged in substance that they had acquired title to the property under foreclosure by warranty deed dated March 7, 1933, and were the owners of the equity of redemption; that a receiver had been appointed February 6, 1937, who had continued to collect the rents during the redemption period; that a decree of foreclosure had been duly entered, and the sale and distribution of proceeds approved, but that no deficiency judgment had ever been entered against the rents, issues and profits of the premises, nor against any of the parties personally liable upon the mortgage indebtedness; that the period of redemption had expired, leaving in the hands of the receiver the sum of $773.93, as shown by his final account; and the petition asked for an order directing the receiver to turn over that sum to defendants and that he be discharged.

Liss, and Grlanz as trustee, answered the petition, admitting many of the principal allegations and averring that the master’s sale left a deficiency of $4,107.65 remaining due to the holders of the notes, for which they claimed a lien on the rents, issues and profits remaining in the hands of the receiver; they denied defendants were entitled to the funds remaining in the hands of the receiver, and asked that such funds be applied and paid over to them on behalf of the note holders.

Pursuant to a hearing of the petition and the answer of plaintiffs thereto, the chancellor entered the order from which this appeal is prosecuted, finding inter alia that a foreclosure decree had been entered November 23, 1937, wherein plaintiffs for the benefit of the holders of the notes secured by the trust deed were found to be entitled to recover the amount of $11,900; that G-lanz as trustee was found by the foreclosure decree to have a valid and subsisting lien upon the premises foreclosed and the rents, issues and profits thereof, to the extent of $11,900; that a sale had been had January 21, 1938; that from the master’s report of sale which had been filed and approved, it appears that there was a deficiency of $4,107.65 due to the holders of the notes; that Glanz as trustee had a first and prior lien upon the rents collected during the period of redemption; and finding that the petition of Harris and Mayer was without equity, it was ordered that their petition be denied.

The question presented is whether, under the existing circumstances, the failure of the mortgagees to procure the entry of a deficiency decree after sale will . deprive them of their contractual right to have the moneys, collected by the receiver during the period of redemption, applied toward payment of the deficiency. The owners of the equity take the position that a pledge of rents gives the mortgagee a right to them only after the deficiency is ascertained and a deficiency decree is entered; that neither the decree of foreclosure nor the appointment of a receiver operates ipso facto as an award of the rents and profits in the event of a deficiency; that since no deficiency decree was entered the lien on the rents pledged in the trust deed never matured into judgment; and it is argued that although the mortgagees had a right to a lien under the provisions of the trust deed, they could assert that right only by taking affirmative steps to mature it into a lien through the entry of a deficiency decree.

In support of their contentions the owners of the equity rely on Fidelity Trust & Savings Bank v. Ahlgrim, 278 Ill. App. 147; Chicago Title & Trust Co. v. Suter, 287 Ill. App. 162; Owsley v. Neeves, 179 Ill. App. 61; Shinnick v. Goodman, 259 Ill. App. 107. In the Ahlgrim case the trust deed contained a provision pledging the rents, issues and profits as well as the real estate as security for the indebtedness. The mortgagor defendants not being found service as to them was had by publication. The decree of foreclosure made provision for a conditional deficiency and vested the court with jurisdiction for the 15-month period of redemption for the purpose of satisfying the deficiency out of the rents, issues and profits. After sale, a deficiency decree was entered and it was ordered that plaintiff should have execution for the amount of the deficiency as upon a judgment at law and that the receiver should remain in possession for the purpose of collecting the rents for the period of redemption and to apply them on the deficiency. Defendant, who had become the owner of the equity after the execution of the trust deed, insisted that the chancellor had no power to fix a lien on the rents and profits and to enter a deficiency decree where the makers of the note and trust deed were not before the court on personal service or by entry of their appearances. The court held, however, that under the authority of ch. 95, par. 17, Cahill’s Ill. Stat. for 1933, the chancellor could enter a decree for any balance found due the complainant after sale; that the original owner of the equity and mortgagor, having pledged the rents, had granted to the mortgagee a right which he could enforce in a court of equity, and “the only way in which this can be done is by the court decreeing the payment of the rents, issues and profits during the period of redemption to the mortgagee until the deficiency has been exhausted or the period of time has elapsed. This is not in the nature of a personal judgment in so far as the rents, issues and profits are concerned, but is an enforcement of the lien granted by the trust deed to an interest in the real estate consisting* of the rents and profits derived therefrom.” Counsel stresses the language quoted as indicating that the pledge of rents in the trust deed constitutes only a right to a hen, which must be matured by the entry of a deficiency decree, but we think the court merely held that even in the absence of personal jurisdiction over the mortgagor defendants, the mortgagees were entitled under the terms of the trust deed to have applied to the payment of the deficiency found to exist, the rents and profits derived from the real estate conveyed by such trust deed.

In Chicago Title & Trust Co. v. Suter, 287 Ill. App. 162, a deficiency decree was entered against Millie A. Suter, one of the defendants, and thereafter set aside because personal service of ■ summons had not been obtained. The vacation of the deficiency decree was entered “without prejudice, however, to the decree entered herein . . . confirming and approving the foreclosure sale and finding a deficiency of $3,372.98 due to the complainant,” and “without prejudice to the retention of jurisdiction by the court provided for in said decree . . . for the purpose of examining, auditing and approving the accounts of Chicago Title & Trust Co. as trustee . . . and for the purpose of appointing a receiver for the premises involved . . . ” Defendants Louis and Hanna Knaus, who had acquired the equity of redemption, sought to reverse the decree on the ground that there was no valid deficiency decree in favor of plaintiff as trustee, and they claimed the sum of $3,410, being the proceeds of rents collected by the Chicago Title & Trust Company during the period of redemption. The court held, of course, that since there was no personal service on Millie A. Suter, the order of deficiency entered by the court was erroneous, but that it still had jurisdiction to impress a lien upon the rents and profits collected during the period of redemption for the amount of the deficiency, since the rents were pledged by the trust deed. Fidelity Trust & Savings Bank v. Ahlgrim, supra, and First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140, are cited as supporting this conclusion. In the latter case the trust deed provided that upon the filing of any bill to foreclose the court might appoint a receiver “with power to collect the rents, issues and profits arising out of said premises during the pendency of such foreclosure suit, and until the time to redeem the same from any sale that may be made under any decree foreclosing this mortgage shall expire; and such rents, issues and profits, when collected, may be applied toward the payment of the indebtedness and costs herein mentioned and described.” It was there contended that the mortgagee having obtained a decree of foreclosure and sale, and applied the proceeds, the mortgage had accomplished its purpose and become functus officio, but the court held that under the clause of the mortgage hereinbefore quoted, “a lien is given, by express words, upon the rents and profits, and such an equitable lien a court of equity will enforce. . . . Had there been no deficiency after the foreclosure sale,” said the court, “the rents would have belonged to the owner of the equity of redemption. Under the express agreement in the mortgage, there being a deficiency . . . after the sale, the Illinois Steel Company had an equitable right to have the rents and profits applied toward the payment of the deficiency decree, from the time of the foreclosure sale until the expiration of the time of redemption, and this right might properly be enforced on an application to the court to appoint a receiver.”

In the case at bar a receiver was appointed pendente lite and continued to collect the rents until the expiration of the period of redemption. A similar situation existed in Bolton v. Starr, 223 Ill. App. 39, where the appointment of a receiver was based upon the lien on the rents granted by the trust deed, and the court held that the lien was not extinguished by the sale of the land and that an order appointing and directing a receiver to collect the rents until the expiration of the period of redemption was sufficient, without an order for the continuance of the receivership after sale, for the purpose of enforcing the equitable lien.

Chicago Title & Trust Co. v. Suter, 287 Ill. App. 162, tends rather to refute than to support the contentions made by the owners of the equity, because in that case after the deficiency decree had been vacated the status of the proceeding was similar to the case at bar, where no deficiency decree was entered after sale; nevertheless, the court recognized the existence of the deficiency after sale and held that under the pledge of the rents in the trust deed the funds in the hands of the Chicago Title & Trust Company should be applied in satisfaction of the amount of the existing deficiency.

In Owsley v. Neeves, 179 Ill. App. 61, the trust deed foreclosed pledged the rents and profits during the period of redemption. After sale a deficiency judgment was entered and it was ordered that the deficiency be ■ paid out of the rents held by the receiver. On appeal the question arose whether the rents were rightfully awarded to the mortgagee, and in the course of its opinion the court said (p. 64): “After the deficiency was established appellees [mortgagees] then for the first time were entitled to an order applying the rents to extinguish their judgment, and they were entitled to such an order by reason of the express provisions of the trust deed. ’ ’ Counsel again stress the language employed by the court in support of their argument that the lien of the trust deed could only be matured by the entry of a deficiency decree, but in our opinion neither the facts nor the decision support this argument.

In Shinnick v. Goodman, 259 Ill. App. 107, a dispute arose as to the ownership of funds collected by the receiver during the period of redemption, but the facts and the questions involved are not in any way pertinent to the controversy in this case. A deficiency decree was entered in that proceeding, and counsel for the owners of the equity herein merely emphasize the language of the opinion that “the mortgagees may take steps to subject the rents to pay the deficiency,” as an argument that a deficiency decree must be entered after the amount of the deficiency has been determined upon sale.

These cases merely affirm the right which a mortgagee has to the rents and profits pledged together with the real estate as security for the indebtedness. They do not hold, as the owners of the equity contend, that the lien created by the pledge of rents must be matured through the entry of a deficiency decree in order to entitle the mortgagees to rentals collected by a receiver, stipulated for in the trust instrument and placed in possession for the express purpose of collecting the rents to be applied on any deficiency that might exist. In nearly all the foregoing cases a deficiency decree was entered and the questions that arose in those cases are not pertinent to the issue here involved.

Whatever rights the mortgagees in the case at bar acquired arose from the contractual obligations of the parties as expressed in the trust deed. By that instrument the mortgagors conveyed the real estate in question and all improvements thereon, together with “all rents, issues and profits to said premises,” and waived all right to the possession of and income from the premises pending the foreclosure proceedings, “and until the period of redemption from any sale thereunder expires,” and agreed that “upon the filing of any bill to foreclose this trust deed, a receiver shall and may at once be appointed to take possession or charge of said premises, and collect such income and ... to apply the balance upon any deficiency which may arise from such sale.”

Under these provisions of the trust deed the mortgagees were given an equitable lien on the rents as well as on the property itself, and the subsequent sequestration of the rents through the appointment of a receiver was an enforcement of that lien, which was not extinguished by the sale of the land nor satisfied until the period of redemption had expired. Then for the first time the receiver, who had been placed in possession for the sole purpose of carrying out the pledge of rents in the trust deed, was called to account for the moneys collected by him during the period of redemption, and the court awarded the net rentals to the mortgagees, who were rightfully and equitably entitled to them.

The order then entered contained the usual provisions of a deficiency decree, in that it recited the appointment of a receiver, his continuance in possession during the redemption period, the amount found due the plaintiffs under the foreclosure decree, and the extent of the deficiency, and the net sum of $773.93, then remaining in the hands of the receiver, being the proceeds of the rents collected during the period of redemption was awarded to the mortgagees.

Par. 17, sec. 16, ch. 95, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 83.17], provides that “in all decrees hereafter to be made in suits in equity directing foreclosure of mortgages, a decree may be rendered for any balance of money that may be found due to the complainant, over and above the proceeds of the sale or sales, and execution may issue for the collection of such balance, the same as when the decree is solely for the payment of money. And such decree may be rendered conditionally, at the time of decreeing the foreclosure, or it may be rendered after the sale and the ascertainment of the balance due . . .” There is nothing in the statute, in any of the decisions cited, nor in cases that we have been able to find, which indicates that the deficiency decree must be entered at any particular time after the ascertainment of the deficiency, and we see no reason why the determination of the ownership of the funds collected by the receiver under the circumstances of this case could not properly be made after the period of redemption had expired, since no other rights had intervened in the meantime.

A similar situation arose in Eastern Banking Co. v. Robbins, 97 Neb. 318, wherein an application for the revivor of a deficiency judgment was made more than 14 years after the foreclosure sale. During that time no effort was made to invoke this remedy, and the court held that on the face of the record the delay was inexcusable and that petitioners were defeated by laches. There is no indication in the opinion, however, that a timely application for a revivor of the deficiency judgment would not have been allowed. In Davies v. Freund, 137 N. Y. S. 735, an interlocutory judgment of foreclosure and sale of real estate provided that if there was a deficiency the plaintiff should be entitled to a personal judgment against the obligor upon the bond, but no sale was in fact made because the property had been sold under the foreclosure of a prior mortgage, which resulted in a deficiency. Many years later an application was made under the terms of the interlocutory decree for a deficiency judgment. The defense of laches was there likewise interposed, but the court said that the delay had not resulted in any prejudice to the mortgagor and that the relative situation of the parties had not in any way been changed, and held that “under these circumstances, mere delay is not considered to effectually bar a remedy, especially since the time within which an action might be brought at law upon the bond — a sealed instrument— has not expired.” In the case at bar nothing intervened within the period of two months after the expiration of the period of redemption to alter the situation of the parties. The mortgagees acquired a lien under the provisions of the trust deed, and not a mere right to lien, as the owners of the equity contend. This lien was sufficiently asserted by the appointment of a receiver, and the possession of the proceeds of the receivership by the court was in its receiver until such time as the court awarded the net rentals to the mortgagees, who were rightfully entitled to them.

While we do not commend the procedure followed by the solicitors for the mortgagees, who by exercising ordinary care and following the cutomary procedure in drawing their various orders and decrees could have obviated the necessity of any controversy in this foreclosure, we do not think that their clients ’ rights .were lost by the methods pursued. The decree of the superior court is affirmed.

Decree affirmed.

Sullivan, P. J., and Scanlan, J., concur.


text:
    In re Estate of Freda Schilling, Deceased. Charles P. R. Macaulay, Appellant, v. Rush B. Johnson et al., Appellees.
    Gen. No. 41,062.
    Heard in the second division of this court for the first district at the December term, 1939.
    Opinion filed February 23, 1940.
    Rehearing denied April 1, 1940.
    James W. Breen and Walter B. Prendergast, both of Chicago, for appellant.
    Rush B. Johnson and Robert B. Mix, pro se, and Rush B. Johnson, W. A. Leopold and Robert B. Mix, all of Chicago, for certain appellees.
   Mr. Justice Friend

delivered the opinion of the court. .

Charles P. B. Macaulay filed a claim in the probate court against the estate of Freda Schilling, deceased, based upon a judgment for $11,000 obtained on a note for $10,000, plus $1,000 attorney’s fees. The claim was denied in the probate court and upon appeal to the circuit court a full hearing was had and the claim again denied. Macaulay appeals.

Briefly set forth the facts disclose that Freda Schilling, a widow, had an undivided interest in real estate at 2444 N. Clark street, Chicago. Her interest was sold for a nominal amount at a judgment sale, and pursuant thereto a bailiff’s deed was issued to Curtis J. Hooper. It appears that Mrs. Schilling then gave Macaulay a judgment note for $10,000, and according to his testimony had made an agreement with him to institute proceedings for leave to redeem from the sale to Hooper. Macaulay confessed judgment on the note, adding $1,000 as his attorney’s fee. Afterward, by virtue of proceedings in the circuit court he was allowed to and did redeem the property from the bailiff’s sale and deed, which was construed as a certificate of sale. After Mrs. Schilling’s death he filed his claim on September 15, 1934, based upon judgment dated October 7, 1929, entered in the circuit court in his favor against Freda Schilling, in the amount of $11,000, which included $1,000 attorney’s fees. On behalf of respondents there was introduced in evidence exhibit No. 24; being an interlocutory decree of the circuit court entered April 6, 1938, mmc pro tunc as of February 9, 1938, finding Macaulay to have acquired the right, title and interest of Freda Schilling to the property in question, and that he “holds the same in trust for heirs of the deceased, subject to payment of amount of money justly due Macaulay, and to payment of claims already allowed against deceased’s estate, administration of said estate, and costs and expenses thereof.” In said interlocutory decree it is further found that he [Macaulay] claimed that there was ‘ ‘ due him for services in recovering interest of deceased, $3,000 and $200 for his attorney’s fees, $1,000 and upwards is due attorneys Callahan and Callahan, and there is due him divers moneys advanced for costs, redemption, other expenses,” pertaining to the procuring of the decree in the circuit court. At the conclusion of a full hearing before the circuit court in connection with the appeal from the probate court in this proceeding, which is evidenced by a record of 116 pages and 36 exhibits, the court gave an oral opinion, from which the following excerpts are taken: “It is very-clear that the whole transaction was conceived in a scheme contrary to public policy, what the courts could deem to be fraud. . . . He [Macaulay] was not a bona fide creditor of Mrs. Schilling at all. He created a debt so that he could come into court. ... It would be unconscionable in a court that exercises jurisdiction in the nature of equitable jurisdiction to allow his claim. ... I have come to the conclusions that I have indicated by considering all of the evidence in the case and the testimony as to the manner and method of his obtaining his claim. I have found that it was obtained fraudulently, what the law calls fraud, and I have indicated why I have disallowed this claim, because of my conclusions of fact and my conclusions of law.”

Claimant’s brief consists of exactly two printed pages. He gives a skeleton outline of the facts and relies on the ground that “the court erred in denying the claim, that the order was contrary to the evidence. ’ ’ His entire argument consumes 12 printed lines. He does not attempt to discuss or analyze any of the evidence adduced upon the hearing, or to show wherein the order was contrary to the evidence; he gives no propositions of law upon which he relies for reversal; he does not cite a single decision which may be applicable to the proceeding; and in fact he presents no legal ground why the judgment should be reversed. Where the appealing party makes no effort to point out or argue any ground for reversal of the judgment the reviewing court is not obliged to search the record in hopes that it may find some ground for reversal which is not assigned, or, if assigned, not argued. As said by the court in Hooper v. Fox, 364 Ill. 613, “if questions involved in a case are of sufficient importance to justify this court in deciding them they are worthy of the careful consideration of counsel presenting them. As we said in Kelley v. Kelley, 317 Ill. 104, ‘It is the duty of attorneys practicing in this court to present to the court' the authorities supporting their views and to assist the court in reaching a correct conclusion. ’ ’ ’

We know of no reason why the judgment should not be affirmed.

Judgment affirmed.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    Boulevard Bridge Bank of Chicago, Trustee, Appellee, v. City of Chicago, Appellant.
    Gen. No. 39,498.

      Heard in the second division of this court for the first district at the June term, 1937.
    Opinion filed February 23, 1940.
    Barnet Hodes, Corporation Counsel, for appellant; Quin O’Brien, Alexander J. Resa, John W. McCarthy and Arthur Chittick, Assistant Corporation Counsel, of counsel.
    Urion, Bishop & Sladkey, of Chicago, for appellee; Howard F. Bishop and William McKinley, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

These consolidated causes were actions for damages to two parcels of improved real estate by reason of the construction of the North Wabash avenue (formerly named Cass street) viaduct. The causes were heard by the court without a jury. In cause No. 536044 judgment was entered in favor of plaintiff in the sum of $25,000. This cause involved damages to the building referred to in the record as the “F” building. In cause No. 536045 judgment was entered in favor of plaintiff in the sum of $45,000. This cause involved damages to the building referred to in the record as the “A” building.

Plaintiff filed a motion in this court to transfer the cause to the Supreme Court. We reserved decision upon this motion until the hearing of the cause. The motion will be denied. (See Grunewald v. City of Chicago, 371 Ill. 528.)

The Chicago and North Western Railway Company owned a right of way, covered by railroad tracks, along the north bank of the Chicago river and from the river north to practically Kinzie street, an east and west highway. The right of way had been there for many years, was part of the main freight line of the railway company, and extended eastward to what is known as Odgen Slip. North of Kinzie street the territory affected by the improvement in question was intersected by three east and west streets: Austin avenue, one block north; Illinois street, two blocks north; and Grand avenue, three blocks north. Plaintiff’s buildings are two warehouses facing south on Austin avenue. One, a 7-story brick building, referred to as “A” building, is situated on the northeast corner of Austin avenue and North Wabash avenue. Its width on Austin avenue is 60 feet, and its length, on North Wabash avenue, is 109 feet. The other, a 6-story brick building, known as “F” building, is the second building west of North Wabash avenue. It has a frontage on Austin avenue of 50 feet, and extends 100 feet to an alley in the rear. “A” building is also designated in the record as “7 story brick Monarch Refrig.” “F” building is also designated as “6 story brick Monarch Refrig.” The Wabash Avenue Bridge Plan called for the construction of a bridge over the Chicago river at Wabash avenue to connect with a viaduct or elevated highway to extend northward over the Chicago and North Western Railway Company’s tracks and three east and west streets, the viaduct to reach the ground level of North Wabash avenue at Grand avenue. In order to provide for a sufficient clearance for the lower level highway, North Wabash avenue was to be gradually lowered so that its new grade at Austin avenue would be 2% feet lower than the old one, at the northern extremity of “A” building it would be an additional 3 feet lower, and at Illinois street it would be depressed 7 feet below its level at Austin avenue. The plan also provided that from points 82 feet east and 82 feet west of Wabash avenue Austin avenue should slope toward Wabash avenue, the depression of Austin avenue at Wabash avenue to be approximately 2% feet. The plan provided that on each side of Wabash avenue between the building line on the north side of Austin avenue and a point opposite the north end of “A” building there should be a row of three caissons, those on the east side to be approximately 18 feet from the wall of “A” building. These caissons went down to bedrock, 70 or 75 feet below city datum. The old street level in Wabash avenue was 14% to 15 feet above city datum. As the Illinois tunnel ran north and south along the center of Wabash avenue about 70 feet below the surface, the plan called for supporting beams of steel and concrete, referred to as girders, extending east and west from caisson to caisson, with a vertical column resting thereon that supported the viaduct near the center of North Wabash avenue.

The elements of damages claimed by plaintiff were:

(1) That in the construction of the viaduct the City was liable for interference with lateral support, which interference resulted in the sinking of the foundations, columns and walls of the two buildings, which in turn resulted in damage to the walls, floors, insulation, etc. (2) That plaintiff’s tenant, Monarch Refrigerating Company, by reason of the change of grade of streets, was put to an expense of $6,795.95 for emergency work in the relocation of piping, wiring, conduits, ammonia lines, etc., which was charged against plaintiff. (3) That prior to the improvement “A” building had a shaft that led from said building down under Wabash avenue to the Illinois tunnel, that one of the caissons on the east side of Wabash avenue cut into this shaft, that thereafter it could not be used, and that it would cost approximately $30,000 to install a new shaft. (4) That prior to the change of grade of Wabash avenue the Wabash avenue side of “A” building received daylight, but that after the viaduct was constructed the windows on the. first floor of that side were darkened. (5) That the change of the grade in Wabash avenue greatly interfered with the loading facilities of both buildings; that three pillars installed in the center of Wabash avenue opposite “A” building decreased the number of trucks that could unload on that side of “A” building at one time, and that the sloping of the alley back of “F” building made unloading there more difficult than it was before. (6) That the closing of Forth Wabash avenue on the north side of Illinois street constituted an element of damage.

As to claim (1): Defendant concedes a settlement of the buildings, but it contends that “the City is not liable for the settlement of the buildings,” because nothing that it did in constructing the viaduct caused either building to settle, and that “the settlement of these buildings was due to overloading.” The trial court found that the construction of the viaduct caused the settlement of the two buildings, and after a careful examination of the evidence bearing upon this claim we are satisfied with his finding in that regard. Witnesses for plaintiff testified that before the work of constructing the viaduct commenced the floors of the buildings were practically level and in good physical condition, the columns in good shape and plumb, and that there was no evidence of settlement or cracking; that after the construction work the floors of “A” building were badly out of level, the columns badly out of plumb, and there was a general tendency of the building to pull westward; that a later examination showed considerable settlement in the building and many evidences of separation and cracking; that an examination of “F” building, after the construction work, showed that it had settled toward the east, viz., toward Wabash avenue; that the floors were out of level, the columns out of plumb, and the joists and girders pulling. Witnesses for plaintiff also testified that the settlement of the buildings was caused by the construction of the viaduct. The manifest weight of the evidence shows that the buildings were not overloaded at any time. Counsel for defendant have made an ingenious argument in support of their claim that nothing that was done in the construction of the viaduct caused the settlement of the buildings; but, faced with the fact that something caused the settlement that followed the construction of the viaduct, they are finally forced to the position that the settlement of the buildings was caused by overloading. The trial court, in view of the evidence, was fully warranted in refusing to believe this highly improbable defense. Defendant concedes that plaintiff’s evidence shows “that because of the settling it would cost $28,345 to restore the floor levels of the ‘A’ building and $93,714 to restore those of the ‘F’ building.”

As to claim (2): Defendant contends that the evidence does not show that the amount expended by plaintiff’s tenant, Monarch Refrigerating Company, was paid by plaintiff or charged to it, or that plaintiff was liable therefor, and that there can be no recovery for these expenditures in this proceeding. Plaintiff contends that during the trial of the cause there was an agreement of counsel that the only question raised as to the $6,795.95 item was, Were the work and expenditures necessary as a result of the improvement? Defendant insists that the language of the alleged agreement is meaningless and that it is not possible to determine what was intended by it. After a consideration of the language in question we think its meaning is ambiguous; but there is nothing in the record to show that the court allowed this claim, and in our view of this appeal it may be disregarded. Defendant concedes that plaintiff was not obliged to itemize the damages and the trial court did not itemize the damages allowed, nor was he ashed to do so.

As to claim (3): Defendant does not dispute plaintiff’s evidence that one of the caissons installed on the east side of Wabash avenue cut into the shaft that led from “A” building to the Illinois tunnel, so that the shaft could no longer be used, and that it would cost approximately $30,000 to install a new shaft, but it contended, in its original brief, that there could be no recovery for this damage because the evidence in support of the claim was not based upon any allegation in the declaration. Plaintiff answered this contention by calling attention to the fact that no objection was made to the testimony on the aforesaid ground, and further answered that certain parts of the declaration contain sufficient allegations to include the claim. The point that no objection was made to the testimony on the specific ground urged is a meritorious one; but plaintiff, in answering defendant’s position, argued,' “in further support” of the instant claim, that the fee of Cass street (North Wabash avenue) was in plaintiff. Both properties are included in Kinzie’s Addition to Chicago, and plaintiff contends that evidence introduced by it (the plat of Kinzie’s Addition to Chicago) . shows that there was not a statutory dedication of Cass street, as the plat shows that there was a failure to comply with the statute regulating statutory dedications of streets and that the plat must be considered as nothing more than a common law dedication. Defendant, in its reply brief, contends that plaintiff did not prove its title to the fee in the street and the presumption is that the City owns the fee in its streets, and, therefore, plaintiff has no claim for damages to its tunnel shaft. Defendant argues with some force that this item of damages appears to have been an afterthought. After examining the evidence bearing upon plaintiff’s alleged title to the fee in the street we entertain serious doubts as to whether the proof showed only a common law dedication, but there is nothing in the record to show that the trial court allowed damages for the instant claim, and in our view of this appeal the claim may be disregarded, although it is clear that plaintiff suffered substantial damages by the destruction of its shaft to the Illinois tunnel.

As to claim (4): The witness Horning, auditor for the Monarch Refrigerating Company, testified: “It is impossible for any daylight to be admitted from the Wabash avenue side. The daylight is now admitted from the Austin avenue side but it doesn’t penetrate to any except Mr. Eckert’s private office. Now we need artificial light all day and we used to need artificial light only in the winter months and in the latter part of the afternoons. ’ ’ The witness’s testimony pertained to “A” building. Defendant does not contend that loss of light is not an element of damage that may be considered in a case of this kind, but it argues that “the evidence of the plaintiff made the problem of determining . the amount of damages a matter of pure guesswork. In such a case no more than nominal damages could be recovered in any case.” The real estate experts who testified for plaintiff gave this loss of light as one reason, among others, for the damages they claim plaintiff sustained. Defendant, upon cross-examination, did not ask them to separate the various elements of damages. What damages, if any, the trial court allowed for loss of light does not appear from the record.

As to claim (5): Defendant does not contend that interference with the loading facilities of the two buildings does not constitute an element of damage. It does contend that “there is no sufficient proof of damages to either building by reason of interference with loading facilities.” The trial court did not agree with this contention. Nor do we. Witness Horning testified that “the effect of the seasonable requirements is that we need all the loading and unloading facilities we can possibly get. . . . Perishable goods must be delivered or received.” He also stated that the capacity of the premises prior to the change of grade was six trucks along East Austin avenue and eleven trucks along North Wabash avenue; that “they don’t go much on the upper level of North Wabash avenue. If they go on the upper level of Wabash avenue they either have to go west on Austin avenue and take Wells street such as will permit trucks to pass and they have to go underneath Michigan avenue to Wacker Drive and to the level that will permit trucks.” Frank Quirk, a trucking contractor, testified: “We would have 15 to 20 cars there a day sometimes loading from the Monarch plant going to the North Western”; that he had no occasion to use the upper level as it would be six blocks out of his way, and “we have never used the upper level. Since the construction of this viaduct we cannot unload on the Wabash avenue side at all of the Monarch property because of the pillars and girders in there on the sidewalk. We could not even put the trucks in there. There are big girders all along the sidewalk. On Austin avenue we cannot unload or load because of the slant there and then we have to go back”; that since the viaduct construction he could ‘1 only back one truck in there at a time, leaving other trucks at peak times out in the street so that you could not get everything in in one day,” and “before August 1, 1930, we could back about 8 or 10 trucks in there. ... I don’t let them back in there because of the slant which caused them to pile the eggs up all over. . . . Because of the slope on the 60 feet of Austin avenue, we can’t put two trucks there and load them.” Hickey, the tenant’s superintendent, testified: “After the construction of the viaduct we can’t get around there on the Cass street side at all. ... At the present time the street there is so low that you can’t back in on account of those columns and; if you put a truck in there nobody can pass, and if you put trucks in on both sides the street is wholly blocked on account of the center columns.” Clausen, an engineer, analyzed the trucking situation at the premises after the viaduct was built. In his testimony appears the following: “If the City would allow us to unload or load in the upper level with the average truck of 15 feet it would interfere with both the northbound motor traffic and the street cars which pass there every 3 minutes. . . . Therefore, you could not load the breakable merchandise on Wabash avenue because you would have to lift it up 3 feet. At the north end of Building A on Wabash, the floor of the truck would be 2% feet lower than the sidewalk and 3% feet with the hand truck, from the sidewalk to the floor of the truck would be 2 feet on the average small truck.” Beardsley testified as to the trucking facilities which the two properties enjoyed before the building of the viaduct, and how important it was to have uninterrupted access on North Wabash avenue to Austin avenue. He further testified: “Because of this depression trucks cannot come up Cass street [North Wabash avenue] frontage without being obliged to lift heavy loads as high as 3 feet on to the warehouse trucks,” and “in addition, it has the alley in the rear, a very abrupt slope down into Wabash avenue lower level making it almost unusable for trucking operations.” The trial court could justly find that plaintiff sustained substantial damages by reason of interference with the loading facilities. What damages the trial court allowed for the interference with the loading facilities does not appear.

As to claim (6): North Wabash avenue on the north side of Illinois street is now closed on the lower level. Plaintiff claims that the usual route of travel for vehicles going north from plaintiff’s properties would be on the lower level of North Wabash avenue. After going a half block north on Wabash avenue from plaintiff’s properties a driver of a vehicle is now confronted with a solid wall, which bars any further progress to the north and makes it necessary for the vehicle to go either to the east or to the west before proceeding north. Defendant contends that the closed portion of Wabash avenue is not in the same block in which plaintiff’s property is situated and that under the law of this State plaintiff is not entitled to recover damages for the said closing. Plaintiff claims that under the ruling in Davis v. City of Chicago, 290 Ill. App. 244 (petition for leave to appeal denied by the Supreme Court, ib. xv), it is entitled to damages for the said closing. Plaintiff, however, states that there is nothing to show that the trial court allowed any damages for the said closing, and that the amounts of the judgments allowed can be justified by the elements of damage that plaintiff was clearly entitled to. In our view of this appeal we may disregard claim (6). The said closing, however, is one of the circumstances that tends to show that the construction of the viaduct was not designed to benefit plaintiff’s properties.

Witnesses for plaintiff and defendant gave their appraisal of the-value of the two properties before and after the construction of the viaduct. Two of plaintiff’s witnesses testified that the value of the land and improvement of “A” property after the building of the viaduct was approximately $100,000 less than the value before the improvement. Plaintiff’s third witness testified that -the value of the land and improvement of “A” property after the building of the viaduct was $79,625 less than the value before the building of the viaduct. The witnesses for defendant testified that the “A” property increased in value after the improvement between $13,000 and $14,000. One expert witness for plaintiff testified that the total loss on the land and building of “F” property after the building of the viaduct was $45,833. Another testified that the total loss was $66,750. Another testified that the total loss was $58,400. Defendant’s expert witnesses testified that the value of the land and improvement of the “F” property after the construction of the viaduct was the same as it was before the construction. This expert evidence illustrates clearly how difficult it is to determine the damages in actions like the instant one, where the determination must he based upon the testimony of experts, alone. Fortunately, in the instant case the trial court had other evidence to aid him in reaching his judgment. That the trial court gave little, if any, weight to the testimony of defendant’s expert witnesses upon the subject matter of values, may well be assumed. That he took the testimony of plaintiff’s experts “with a grain of salt” is indicated by the amount of the damages awarded.

We find no merit in defendant’s contention that “both the ‘A’ and ‘F’ properties were benefited by this public improvement.” As plaintiff argues, defendant was forced to adopt a plan for the public work in question that precluded any benefit to plaintiff’s properties. The viaduct structure did not come down to the surface until it reached Grand avenue because it was necessary to provide sufficient clearance over the railway company’s tracks. To obtain the right to build this viaduct through and over the railway company’s property it would have been necessary to resort to condemnation proceedings if the right of way had not been acquired by a settlement between the railway company and defendant, the terms of which are incorporated in the ordinance providing for the improvement. A reading of the ordinance makes it clear that the extension of the viaduct past plaintiff’s properties was caused solely by the railroad right of way, which made it impossible to begin the approach to the bridge at the old level of North Wabash avenue at East Kin-zie street. A civil engineer employed by defendant testified that but for the railroad right of way the viaduct would have come down to the old street level at approximately East Kinzie street. He also testified that prior to the building of the viaduct North Wabash avenue (formerly Cass street) terminated at Kinzie street because the railroad tracks and yards “were down there. ’ ’ The result of constructing the public work as planned undoubtedly cost the City less than it would have had to pay the railway company in case of condemnation proceedings, for had the City been compelled to resort to such proceedings the damages suffered by the railway company would have been very large. The City, to minimize damages, wisely made an agreement with the railway company, but it is clear that plaintiff suffered damages to its properties as the result of the agreement. The construction of the Wabash avenue bridge is a great benefit to the people of this community. It undoubtedly benefited certain properties in the Loop and properties on Wabash avenue north of Grand avenue. Had the viaduct come down i;o the old street level of Wabash avenue near Kinzie street, plaintiff’s properties would also have been benefited. Several of the expert witnesses for defendant testified that since the building of the bridge and viaduct the use of plaintiff’s properties ii not limited to cold storage warehouses, but that some space in the buildings could be used for retail stores which would earn for the properties greater rentals. One of defendant’s experts testified that the properties might now be used for light manufacturing. On the contrary, testimony for plaintiff shows that the warehouse use is still the highest and best use that can be made of the properties, and that the cost of changing and remodeling the buildings to conform to the changes advocated by defendant’s experts would be prohibitive.

The able and experienced trial judge saw the witnesses and heard their testimony, and had a better opportunity than we have to pass upon their credibility and the weight that should be attached to their testimony. In addition, he examined the premises. If all of the doubtful elements of damages claimed by plaintiff are disregarded, nevertheless, the amounts allowed by the trial court are no more than sufficient to compensate plaintiff for damages done its properties by reason of the improvement. After a careful study of the record we see no good reason why defendant should complain of the amounts of the judgments. Section 13 of Article II of the Constitution of 1870 provides that “Private property shall not be taken or damaged for public use without just compensation.” In People ex rel. Farwell v. Kelly, 361 Ill. 54, 58, the court quotes with approval the following from Roe v. County of Cook, 358 Ill. 568: “The constitutional right of all property owners to compensation when their property has been damaged or taken for public use is one of the most salient provisions of our bill of rights, ’ ’ and states (p. 59): “The provisions of section 13 of article 2 of the constitution are self-executing, neither requiring any legislation for their enforcement nor susceptible of impairment by legislation or ordinance. (Roe v. County of Cook, supra, and authorities there cited.) ”

The judgments of the superior court of Cook county in causes No. 536044 and 536045 are affirmed.

Judgments .affirmed.

Sullivan, P. J., and Friend, J., concur.


text:
    Antoinette Bayci, Appellee, v. Frank Rango, Appellant.
    Gen. No. 40,866.

      Heard in the second division of this court for the first district at the October term, 1939.
    Opinion filed February 23, 1940.
    Rehearing denied April 2, 1940.
    Stanton & Stanton, of Chicago, for appellant; Bailey Stanton, S. J. Stanton and Wm: McK. Glee-son, all of Chicago, of counsel.
    No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Frank Bango, sued as Secretary-Treasurer of Local 548, of Chicago, Illinois, of the Journeymen Barbers’ International Union of America, and also as Sixth Vice-President of the Journeymen Barbers’ International Union of America, appeals, “as Sixth Vice-President -of the Journeymen Barbers International Union of America, and as Secretary-Treasurer of Local 548, of Chicago, Illinois, of the Journeymen Barbers International Union of America,” from a decree ordering that he, “as Secretary-Treasurer of Local 548 of Chicago, Illinois, of the Journeymen Barbers International Union of America, and as 6th Vice-President of the Journeymen Barbers International Union of America, and as the local representative of said International Union and of its Benefit Fund, and in conformity with Article V, Section 4 of the By-Laws of said International Union, shall forthwith pay to the plaintiff herein, Antoinette Bayei, as the legal beneficiary of John A. Bayei, deceased, the sum of $200.00 from the Benefit Fund of said International Union.” The cause was submitted to the trial court.

Plaintiff failed to file a brief in this court. Her attorney informs us that plaintiff was unable to pay the cost of an appearance and a brief, but that he would file a typewritten brief in support of the decree of the lower court if leave were granted him to do so. After an examination of the record and defendant’s brief we find that we can determine this appeal without the aid of a brief from plaintiff. The defense interposed is so lacking in fairness to the deceased member and his widow that it shocks one’s sense of justice.

John A. Bayei, husband of plaintiff, died on May 24, 1937. He was a barber, and had been for a number of years a member of the Journeymen Barbers’ International Union of America. The membership of that union covers the United States and Canada. It has local unions in many places. The local union in Chicago is known as Journeymen Barbers’ International Union of America, Local 548. The deceased joined the International Union in 1929 by becoming a member of a local union at Joliet, Illinois. "When he removed to Chicago, in 1933, he became a member of Local 548. If he was a member in good standing at the time of his death the International Union was obligated to pay his widow, plaintiff, the sum of $200 from the Benefit Fund of said Union.

The main contention raised by appellant is: Bango denies that “as Sixth Vice-President of said International Union, or as member of the General Executive Board, or as Secretary-Treasurer of Local Union No. 548, he is in a position to pay plaintiff’s claim, or any part thereof, from the Benefit Fund or from other moneys being the property of said Union, but . . . states that said Benefit Fund and moneys are deposited, at interest, to the credit of the General Executive Board, as Custodian or Trustee for said Union, in Indianapolis, Indiana; that the members of said Board, being thirteen in number, are, with the exception of this defendant domiciled without the State of Illinois, and are, accordingly, as are the moneys belonging to said Union, beyond the jurisdiction of this Court; that the moneys so on deposit as aforesaid, are subject to withdrawal only upon the written consent of the majority of said Board, and then only when countersigned by the General Secretary-Treasurer”; that while the members of Local 548 pay their death benefit dues to Bango as secretary and treasurer of said Local, he transfers said dues to the General Executive Board in Indianapolis, Indiana, and only said Board can pay death benefits; “that the plaintiff’s action, if any, was one at law . . . and not in equity”; that “the benefit fund for the payment of death benefits of members in the union in question is a fund accumulated and under sole control of the General Executive Board of the International, which Board, comprised of 13 of its officers, as a body acts as trustee of the benefit fund”; that plaintiff, to obtain redress, must sue said Board and obtain service against all of the members of the said Board, “ioho are only thirteen in number”; that the trial court had no equitable jurisdiction of the subject matter of plaintiff’s claim and should have dismissed the suit. The same contention was raised in the trial court.

The record shows that the members of the General Executive Board of the International are James C. Shanessy, Indianapolis, Ind.; W. C. Birthright, Indianapolis, Ind.; Nick Delmont, St. Paul, Minn.; Emil Posner, Detroit, Mich.; C. E. Herrett, Vancouver, B. 0., Can.; Patrick H. Beagan, Bochester, N. Y.; Anthony Merlino, New Haven, Conn.; Frank Rango (defendant in the instant case), Chicago, Ill.; John S. Lloyd, Norfolk, Va.; Frank W. Weibel, Pittsburgh, Pa.; C. T. Crane, Portland, Ore.; Geo. E. McKenna, Springfield, Ohio, and John B. Robinson, Dallas, Texas. Although Rango is Secretary-Treasurer of Local 548, a Vice-President of the International Union, and a member of the General Executive Board, he strenuously insists that service upon him is not enough, but that service must be had upon all of the members of the Board, and in an action at law. He admits that as secretary-treasurer of Local 548, he received the death benefit dues from the deceased and transferred them to the General Executive Board. The trial court called the attention of defendant’s counsel to the fact that it would be practically impossible for plaintiff to sue at law and obtain service upon the members of the General Executive Board; nevertheless, the counsel adhered to the position taken in the contention, and he still seeks to maintain it in this court. If the International Union had a meritorious defense to plaintiff’s claim it could maintain it as well in equity as in law. If it had no meritorious defense, why seek to defeat a claim like the instant one upon the grounds urged 1 It is surprising that officials of a fraternal union, to defeat a small death benefit claim, would interpose such a brazen and inequitable defense. The members of the union, if they knew the nature of the defense interposed, would certainly condemn the position taken by appellant.

From the nature of the defense and the arguments advanced in support of it, we are constrained to believe that the instant defense was not made primarily to defeat plaintiff’s claim, but to obtain a ruling that would make it practically impossible for a member, or members, of the union to reach the fund in the hands of the General Executive Board of the International Union.

There is, of course, no merit in appellant’s position. In Warfield-Howell Co. v. Williamson, 233 Ill. 487, the court states the general rule that all persons interested in the subject matter in controversy should be made parties, but adds that there are certain exceptions to that rule; that (p. 496) “where the parties are numerous and it is impracticable to bring them all before the court, service upon a part, to act for the other members of the association as well as for themselves, will be a sufficient service upon the whole. (Guilfoil v. Arthur, 158 Ill. 600; Fitzpatrick v. Rutter, 160 id. 282; Story’s Eq. Pl. sec. Ill.) There are many cases to be found where suits in equity have been sustained against voluntary unincorporated associations where service was had upon some agent, committee, manager or trustee, who in some sense might be said to represent the body of the membership. ’ ’ In the well-known case of Fitzpatrick v. Rutter, 160 Ill. 282, 286, the court says: ‘ ‘ However, if it be conceded that it is but a voluntary association, it is not necessary, as is urged by counsel for appellant, that all the members of the association be made parties and each be served with summons. In general, all persons interested in the subject matter in controversy should be made parties. But there are exceptions to this rule. The members of the Switchmen’s Mutual Aid Association of Forth America are scattered over almost every State of the Union and in Canada, and service in the manner contended for would be impossible, and to require it would be to deprive the complainant of all remedy. Where the parties are numerous and it is impracticable to bring all before the court, as in this case, service upon a part, who act for other members of the association as well as thémselves, will be a sufficient service upon the whole. (Guilfoil v. Arthur, 158 Ill. 600.) ” American Percheron Horse Breeders’ Ass’n v. American Percheron Horse Breeders’ & Importers’ Ass’n, 114 Ill. App. 136, involved a bill in equity where the association was a voluntary association, and the court adhered to the rule stated in Fitzpatrick v. Rutter, supra. Guilfoil v. Arthur, 158 Ill. 600, also involved a bill in equity, brought by the grand officers of the Grand International Brotherhood of Locomotive Engineers. There the court said (p. 605): “It is a general rule, and one well understood, that all persons interested in the subject matter of the litigation should be made parties complainant or defendant. But there are exceptions to this general rule. In section 97 of Story’s Equity Pleading, in spealdng on this subject, the author says: ‘The most usual cases assigning themselves under this head of exceptions are, (1) where the question is one of a common or general interest, and one or more may sue or defend for the benefit of the whole; (2) where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole; (3) where the parties are very numerous, . . . and it is impracticable to bring them all before the court. ’ ” In Fish v. Kanawha Dispatch, 118 Ill. App. 284, 289, the same rule is followed, the court holding that even if the defendant be considered a voluntary association, its members were scattered over almost every State of the Union and Canada, and service on all would be practically impossible. See, also, Dugan v. International Ass’n of Bridge & Structural Iron Workers, 202 Ill. App. 308.

Counsel for appellant stated, in the trial court, that if this court sustained the decree of the trial court it “would require payment by defendant [Bango] from his personal funds.” The same statement is made in this court. This plaintive plea must be taken cum grano salis. Two or three times the amount awarded this widow must have been expended by someone in the unjustified defense of this suit, and if it is true that the International Union would permit Bango to pay the $200 awarded out of his own pocket, it is time for the members of the Union, and the proper authorities, to inquire into the benefit fund controlled by the General Executive Board.

In an attempt to give a pretense of merit to the defense, the claim was feebly made that the deceased was not a member in good standing at the time of his death. The deceased, under the Constitution of the International Union, should have paid to Bango, Secretary-Treasurer of Local 548, his death benefit dues of 80 cents for the month of May, 1937, on the first day of that month. He died “suddenly” on May 24, and the dues for that month had not been paid. Under the particular facts of this case there is not the slightest merit in the instant contention. The record showing the payments by the deceased of death benefit dues to Local 548 from June, 1935, to April 27, 1937, is before us, and it shows that during that entire period the deceased never paid his monthly death benefit dues on the first day of the month. To instance: The dues for January and February, 1937, were paid on March 1, 1937; and the dues for March and April, 1937, were paid on April 27, 1937. At no time during the period covered by that record does it appear that the deceased was suspended or that dues were refused by the Local or International union; and during the period in question and up to the time of his death he was treated, apparently, as a member in good standing of Local 548. From the admissions of Bango it appears that all dues paid by the deceased were forwarded to the General Executive Board of the International, and there is no claim made that the International ever refused the dues or took any steps to bring about the termination of the membership of the deceased. Under numerous decisions of this State the provision of the Constitution of the International Union requiring the members to pay the death benefit dues on the first of the month was, under the facts, waived. To refer to a few cases: Dugan v. International Ass’n of Bridge & Structural Workers, 202 Ill. App. 308; Railway Passenger & Freight Conductors’ Mutual Aid & Benefit Ass’n v. Tucker, 157 Ill. 194; Dromgold v. Royal Neighbors, 261 Ill. 60; Olszewski v. Fitchie, 287 Ill. App. 452. The Olszewski case, under the facts, is very-similar to the instant one. To quote from the opinion (pp. 456, 457): ‘1 Notwithstanding the claimed defaults in this case, the member in his lifetime was charged with the monthly dues as they accrued, and the defendants accepted them with full knowledge that a short time had elapsed before receipt of the current month’s dues, which were paid quarterly. With this knowledge they continued to recognize the membership of Olszewski, and no notice was ever given him that his right to the sick and death benefit was forfeited. Again, both parties to this litigation have cited the case of Dromgold v. Royal Neighbors, 261 Ill. 60. The court in that case said: ‘No absolute rule can be laid down as to what acts will in all cases amount to a waiver of a forfeiture of membership in a mutual benefit society, but this court held in Railway Conductors’ Benefit Ass’n v. Tucker, 157 Ill. 194, that “conduct on the part of the society which amounts to a recognition of a member’s claim to the continuing rights of membership will relieve him from the consequences of his default. The receipt of assessments after default in payment is a common form of waiver.” ’ And so it would seem from the authorities cited by the parties that the continued recognition of the membership of Olszewski amounted to a waiver.” See, also, Metropolitan Safety Fund Acc. Ass’n v. Windover, 137 Ill. 417, 432, 433; Loyal Americans v. Mayer, 137 Ill. App. 574, 581; Falkinberg v. Modern Am. Fraternal Order, 149 Ill. App. 622, 625.

There is .no justification for this appeal. The trial court recognized the unconscionable nature of the defense interposed, and expressly reserved in the decree jurisdiction “for the purpose of making all such other and further orders for the enforcement of this decree, ... as may be proper under the law. ’ ’ If the amount awarded in the decree is not paid promptly the trial court should take all proper steps to enforce the payment. The attorney who acted for plaintiff in the trial court, as an officer of the court, should hereafter act to protect the rights of plaintiff. The fact that she is unable to pay for the services of an attorney should not jeopardize her rights. The amount involved in this suit is small, but a decision upholding appellant’s main contention would make it practically impossible to enforce any death benefit claims that may hereafter arise.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Sullivan, P. J., and Friend, J., concur.